Judge Wanger Denies a Request for Emergency Relief to Immediately Open the Red Bluff Diversion Dam Gates

On June 27, 2008, Judge Oliver W. Wanger of the United States District Court, Eastern District of California refused to order that the Bureau of Reclamation open the Red Bluff Diversion Dam gates to accommodate passage for migrating winter-run and spring-run Chinook and Central Valley steelhead. Judge Wanger's ruling follows his amended May 20, 2008 decision in Pacific Coast Federation of Fishermen's Associations v. Gutierrez, Case. No. 1:06-cv-00245-OWW-GSA (“PCFFA v. Gutierrez”), in which the Court held that the National Marine Fisheries Service and Bureau of Reclamation violated the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq., in carrying out their duties under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq.

PCFFA v. Gutierrez is the companion case to Natural Resources Defense Council v. Kempthorne, 506 F.Supp. 2d 322 (E.D. Cal. 2007) (“NRDC v. Kempthorne”), in which Judge Wanger invalidated a biological opinion that analyzed the effect of future CVP and SWP operations on Delta smelt.

Background

Judge Wanger has been taking evidence in the PCFFA v. Gutierrez case since June 6th. The case follows on the court's ruling as amended on May 20 that the National Marine Fisheries Service's 2004 Biological Opinion, discussing the impacts of the future coordinated operations of the Central Valley and State Water Projects, did not adequately analyze the status of winter-run and spring-run Chinook salmon and Central Valley steelhead, and in particular failed to justify its conclusion that none of the three species would face an appreciable risk of extinction as a result of CVP and SWP operations. The proceedings therefore center on whether operations between now and the issuance of a new BiOp would pose such a risk, and if so, what interim remedies should be imposed to address it. Evidence regarding the first – the jeopardy – question is scheduled to conclude this week. Should the court determine that a risk of jeopardy exists, the matter will then proceed to the question of what measures must be taken to minimize or avoid that risk between now and March, 2008 when the new BiOp is scheduled for completion.

June 27, 2008 Decision

On June 20, plaintiffs unexpectedly moved the court for emergency relief on two fronts, requesting that (1) flows on Clear Creek be increased from the scheduled 85 cfs to 150 cfs during July and August in order to accommodate upmigrating spring-run adults, and (2) that the Red Bluff Diversion Dam gates be lifted immediately and until at least the time the court rules on plaintiffs' motion for a preliminary injunction in order to provide unimpeded access to the tail-end of the spring-run upmigration. On June 24, the court denied the request regarding Clear Creek flows, primarily on the ground that, given the complexities of the flow regime and its multiple impacts, the court was required to defer to the federal agencies' operational expertise. On June 26, the court tentatively granted the plaintiffs' motion to lift the RBDD gates but was persuaded otherwise after taking extensive argument and further evidence on the questions of both the low numbers of spring-run that might be affected by the measure and in general the lack of efficacy of the remedy in the short term. On Friday, June 27th, the court formally denied plaintiffs' request for emergency relief as to Red Bluff. Had the court ordered the RBDD gates opened, approximately one-half to two-thirds of the water supplies to the Tehama-Colusa Canal Authority's four-county service area would have been curtailed during the peak period of irrigation demand. The curtailment would have impacted approximately 140,000 acres of agriculture, a little more than half of which comprises tree crops whose yields would have been affected over a two to three-year period but also whose long-term viability would have been decreased by some margin depending on how recently trees have been planted. Notably, most of these trees have been planted in the last ten years as the TC service area struggles to improve water use efficiency, and these trees would have been most vulnerable. In addition, the need to turn to groundwater for alternative supplies would likely have exacerbated an already negative groundwater situation in the area, as wells have already begun to fail under the stress of consecutive dry and critical water years, and a CVP allocation of 40% for 2008.

Additional Interim Remedy Issues

The evidence expected in the next three days will address plaintiffs' allegations that the Bureau has not adequately planned CVP operations to maintain cold-water habitat for salmonids this year or to preserve carry-over storage in Shasta reservoir for next year. Although maintaining habitat and carry-over storage are mutually exclusive, at least under current hydrologic and regulatory conditions, the plaintiffs allege that the Bureau has been arbitrary and capricious in failing to analyze the CVP's capacity to meet these goals by reducing contract deliveries, including those to Sacramento River settlement contracts. Downey Brand and other attorneys for the defendants will vigorously argue that the Bureau has little or no discretion to alter settlement contract deliveries.

The parties hope to receive a ruling on the jeopardy issue by July 3d.

For more information, please contact Downey Brand lawyers whose practices involve the ongoing environmental challenges to CVP and SWP operations: Kevin O'Brien, Steve Saxton, or Maya Ferry at (916) 444-1000.

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