Judge delays decision on river restoration

A federal judge has postponed a decision that could affect much of the population along the eastern edge of the San Joaquin Valley.

U.S. District Court Judge Lawrence K. Karlton canceled a Jan. 26 hearing where he was supposed to decide if the U.S. Bureau of Reclamation had violated the Endangered Species Act by renewing long-term water contracts. The hearing has been rescheduled for March 9.

His decision will be the latest development in a 17-year lawsuit brought against the federal government by a coalition of environmental and commercial fishing organizations led by the National Resources Defense Council (NRDC). The lawsuit claims that the Bureau's operation of Friant Dam - which delivers water to 1.5 million acres of farm land along the eastern edge of the Central Valley through the Friant-Kern Canal - violated California's Fish and Game Code and that its long-term water contracts with the Friant Water Users Authority violated the federal Endangered Species Act.

On Aug. 27, Karlton ruled that the operation of the dam was in violation of Fish and Game Code Section 5937, which states:

"The owner of any dam shall allow sufficient water at all times to pass through a fishway, or in the absence of a fishway, allow sufficient water to pass over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam. During the minimum flow of water in any river or stream, permission may be granted by the department to the owner of any dam to allow sufficient water to pass through a culvert, waste gate, or over or around the dam, to keep in good condition any fish that may be planted or exist below the dam, when, in the judgment of the department, it is impracticable or detrimental to the owner to pass the water through the fishway."

While in the remedy phase of the state law violation, Karlton announced at a November hearing that he would also consider the federal law violation.

If Karlton rules in favor of NRDC, local water experts estimate that the judge may order environmental water releases into the San Joaquin River from Friant Dam. A 1975 ruling under the Endangered Species Act, known as Tennessee Valley Authority vs. Hiram Hill, was appealed all the way to the Supreme Court where on May 25, 1976, Chief Justice Warren Burger wrote, "It is clear that Congress intended to halt and reverse the trend toward species extinction whatever the cost." The decision meant that the dam construction was ordered to cease and set a precedence that ESA violations result in complete shut down of projects to protect a species "whatever the cost," or, possibly in the case of FWA, regardless of the amount of money and effort spent to supply water for municipal, irrigation or industrial use in areas with insufficient water levels.

The uncompromising precedent may spell economic doom for many farmers, cities and businesses along the eastern edge of the San Joaquin Valley, and more specifically Tulare County. The Friant-Kern Canal, operated by FWA through releases from Friant Dam, supports an agricultural business of about $4.5 billion annually. Farms irrigated by Friant-Kern Canal water provide nearly 50,000 jobs in an area that annually has double digit unemployment. Cities such as Lindsay, Strathmore and Orange Cove rely on canal water deliveries to supply 65-100 percent of their municipal water, affecting about 22,000 people. Another 305,000 people in Fresno, Terra Bella, Friant and East Niles near Bakersfield would also be affected.

Background

Karlton's decision is the latest in a 16-year legal battle, NRDC vs. Rogers (George Rogers was the head of the US Bureau of Reclamation, the primary defendant as the agency operating Friant Dam, when the suit was brought forth in 1988). The original suit claimed that FWA's 40-year water contracts were renewed without proper study of environmental impacts to the river and violated the Endangered Species Act, California Fish & Game Code and other environmental protections. The lawsuit has subsequently been amended seven times. In 1997 the contracts were declared invalid for violating the ESA. It was appealed to the 9th Circuit Court where the decision was upheld so the Bureau of Reclamation appealed to the U.S. Supreme Court. In 1999 the Supreme Court refused to hear the case and sent it back to the 9th Circuit Court.

During settlement negotiations, the Bureau of Reclamation signed 25-year water contracts with members following extensive environmental consultations with federal agencies in January 2001. Settlement negotiations collapsed and NRDC attacked the new contracts in the latest amendment.

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