Kate Poole, Senior Attorney, San Francisco
Today, the Ninth Circuit ruled, once again, that Westlands Water District and other junior Central Valley Project (CVP) water users in the San Joaquin Valley are only entitled to “surplus” water from California’s Bay-Delta, and are not entitled to flows that Congress dedicated to restore California’s beleaguered salmon runs. The decision may be found in full here. This decision should put a rest to the relentless campaign by Westlands’ approximately 600 agribusinesses to elevate their claims to California’s water resources above the public’s interest in healthy rivers and fisheries.
Here are a few highlights of the decision:
- The court reiterates that the CVP was initially authorized “to provide for the transportation of ‘surplus’ waters within the Sacramento Valley to the San Joaquin River.” Page 5.
- It affirms that “[t]he construction and operation of the CVP, along with other stressors, has had a devastating effect upon California’s native fish populations, including, in particular, its native salmon.” Page 8.
- It explains that Congress attempted to address this devastating impact of the CVP on our fisheries and ecosystem by adopting in the 1992 Central Valley Project Improvement Act a directive that the Bureau develop a “program which makes all reasonable efforts to ensure that, by the year 2002, natural production of anadromous fish in Central Valley rivers and streams will be sustainable, on a long-term basis, at levels not less than twice the average levels attained during the period of 1967-1991…” Pages 9-10.
- It emphasizes that the 1994 Bay-Delta Accord – which Congressman Nunes and the House of Representatives attempted to freeze into place for all time this week via H.R. 1837 – contained only “interim measures for environmental protection” that were “intended to be in force for three years,” not in perpetuity under the revisionist history now painted by H.R. 1837 proponents. Page 13.
- It firmly rejects Westlands’ argument that water released for any “environmental” purpose – such as protecting drinking water quality, or flows to prevent saltwater intrusion into agricultural water supplies – must be counted toward achieving salmon doubling goals, regardless of why the water was actually released or whether salmon were even in the affected rivers at the time. Pages 47-54.
- It acknowledges that “only meeting the [Water Quality Control Plan] and post-1992 ESA requirements may not be sufficient to meet the anadromous fish doubling goal and other restoration purposes and measures included in the CVPIA.” Page 60.
- It affirms that “Under section 8 of the Reclamation Act of 1902 …, the Bureau is required to comply with state law in acquiring water rights for the diversion and storage of water by the CVP.” Page 7, note 3.
- It recognizes that the water released by the Bureau in June of 2004, that was the focus of Westlands’ attack in this case, was released at a time when very few if any salmon were even in the system, making it very hard for this water to “benefit” salmon. Page 36.
Let’s hope that this decision finally puts a rest to Westlands’ relentless campaign against providing sufficient water to restore and sustain California’s salmon runs, which form the backbone of our 150-year old salmon fishery and the thousands of jobs and communities it supports.
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