The Ninth Circuit Court of Appeals has held that the U.S. Bureau of Reclamation (Bureau) had statutorily granted power to release water in excess of amounts designated in the applicable water release schedule for Trinity River water impounded at Lewiston Dam in northern California. The Ninth Circuit also determined that the water release did not violate the Central Valley Improvement Act or California water law and denied appellants standing under the Endangered Species Act to challenge the releases. [San Luis and Delta-Mendota Water Authority v. Haugrud, ___F.3d___, Case No. 14-17493 (9th Cir. Feb. 21, 2017).]
The Water Contractors alleged that the Bureau’s 2012 and 2013 water releases violated the federal Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), certain CVPIA provisions, and California water law. The U.S. District Court found that the Water Contractors’ ESA and NEPA claims were moot and that the water releases did not violate the CVPIA or California water law. The court did rule, however, that the 1955 Act did not authorize the Bureau to implement the 2013 water release for the benefit of fish in the lower Klamath River. The Bureau appealed, and the Water Contractors’ cross-appealed on all claims except the NEPA claim. The Ninth Circuit reviewed the lower court’s decision de novo.
The Ninth Circuit observed that the 1955 Act does not limit that “expansive clause,” indicating that Congress intended to delegate broad authority to the Secretary to determine what constitutes “appropriate measures” to protect fish.
According to the Ninth Circuit, Congress did not clearly and manifestly indicate that the CVPIA replaced or amended the 1955 Act. Nor did later legislative acts implementing specific programs, such as those provided for in the CVPIA, nullify the Bureau’s “pre-existing discretionary authority.” Thus, the Ninth Circuit concluded that the Bureau acted within its statutory authority under the 1955 Act by releasing additional water for the protection and benefit of fish in the lower Klamath River.
Similarly, the Ninth Circuit rejected the Water Contractors’ contention that the CVPIA placed an absolute cap on the amount of water the Bureau could release from Lewiston Dam by referring to the statutory language of the CVPIA. The court observed that the CVPIA only provides for water releases for the Trinity River and does not extend to the lower Klamath River.
On the ESA claims, the Ninth Circuit held that the Water Contractors lacked standing. According to the court, the Water Contractors’ claim that it would suffer economic harm as a result of the Bureau’s additional releases were too “uncertain and remote.”
Finally, the court held that the Bureau did not violate California water law, as it is required to comply with under the Reclamation Act of 1902. The Ninth Circuit, however, concluded that California Fish and Game Code § 5937 provides an exception in this case, because it requires dam operators to keep fish downstream of a dam in “good condition.” Thus, the court held that the Bureau was not required to amend its water rights permits for Trinity River water behind Lewiston Dam because it was releasing water for the benefit of downstream fish as provided for in Fish and Game Code § 5937.
Under this holding, the Bureau has broad authority to adopt measures, including additional releases from TDR in excess of those previously provided for, to preserve and restore fish in both the Trinity and Klamath Rivers. This case may also affect later interpretations of the reach of the CVPIA and the interrelationship between California water rights permitting and California Fish and Game Code § 5937 directives. The court’s decision is accessible online at: available at http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/21/14-17493.pdf
(Miles Krieger, Steve Anderson)
