Fishermen fire shot in California water wars

Courthouse News
By William Dotinga
May 3, 2012

California fishermen and crabbers call the federal decision to divert water from the Sacramento-San Joaquin River Delta “a charade devoid of any effective environmental review,” in Federal Court.

The Pacific Coast Federation of Fishermen’s Associations and the San Francisco Crab Boat Owners Association sued the U.S. Department of the Interior and the Bureau of Reclamation for violations of the National Environmental Policy Act and the Central Valley Project Improvement Act.

The 1,100-square mile Delta, formed by the confluence of the Sacramento and San Joaquin rivers, is the largest estuary on the Pacific Coast.

The fishermen object to the Bureau of Reclamation’s environmental assessment (EA) and the adoption of its Finding of No Significant Impact (FONSI), a “charade” necessary to deliver eight water service contracts in the next 2 years.

The groups claim the reports violate NEPA because they assume that Reclamation has no discretion to reject the contracts, reduce the quantity of water diverted from the Delta or increase the price of the contracts to force a reduction in water demand.

“Reclamation’s environmental review thus conveniently ignores the growing environmental impacts its water exports are having on the Delta’s increasingly imperiled salmon, steelhead, sturgeon and other fish and wildlife affected by the signing of the interim contracts. Because Reclamation considers continued water deliver – at present quantities and prices – to be the environmental baseline, the EA and FONSI conclude that water deliveries under the interim contracts will have no effect on the environment. Consequently, the Bureau failed to consider any alternatives or mitigation measures that would reduce the interim contracts’ impacts or even seriously to examine those impacts at all,” the complaint states.

“To add insult to injury, Reclamation’s erroneous premise that it lacked any meaningful discretion regarding the interim contracts was based on an outdated water needs assessment, which is not representative of current conditions. Reclamation’s EA process was thus reduced to nothing more than a meaningless charade, devoid of any effective environmental review of the interim contracts’ adverse effects, and of alternatives and mitigations that would avoid or reduce those effects.”

The groups says that since passage of the Central Valley Project Improvement Act in 1992, the Delta’s Chinook salmon, Central Valley steelhead, North American green sturgeon and Delta smelt have been driven to the brink of extinction. The winter-run Chinook salmon, listed as a federally threatened species in 1990, was declared endangered in 2005 because of continuing population declines.

Seventeen species of fish indigenous to the Delta have become extinct and just 12 indigenous species remain, the fishermen say. Excessive water exports, usually to the southern San Joaquin Valley and to Southern California via the California Aqueduct, decrease freshwater flows, which result in increased salinity and the more concentrated runoffs of herbicides, pesticides and toxic agricultural products in the Delta, the fishermen say.

A 2009 biological opinion by the National Marine Fisheries Service informed Reclamation that based on scientific and commercial information, continued excessive water exports from the Delta “are likely to jeopardize the continued existence of federally listed: endangered Sacramento River winter-run Chinook salmon, threatened Central Valley spring-run Chinook salmon, threatened Central Valley steelhead, threatened Southern Distinct Population Segment of North American green sturgeon, and Southern Resident killer whales (who feed on the salmon),” according to the complaint.

The National Marine Fisheries Service also concluded the exports were “likely to destroy or adversely modify” the listed creatures’ habitats, the fishermen say. (Scientific names omitted; parentheses in complaint.)

The groups claim that Reclamation’s water deliveries, used largely for agricultural irrigation, contribute to the pollution of ground- and surface water in the San Joaquin Valley. The polluted discharge from farms is drawn back into the California Aqueduct and into the drinking water supply of 20 million Californians.

The fishermen say the approval of short-term interim water contracts has been a way around Reclamation’s NEPA review of long-term contracts, which is mandated by the Central Valley Project Improvement Act. In the 20 years since the act was passed, the Bureau has never completed a NEPA review or approved a long-term contract. Instead, it has repeatedly granted interim contracts “devoid of adequate environmental review in a series of nearly identical EAs,” the groups say.

“The informed approval – or disapproval – of these short-term, interim contracts is within the discretion of Reclamation,” according to the complaint.

On Feb. 29 this year, Reclamation issued its FONSI and EA for the eight interim contracts and approved the contracts. Water delivery commenced the next day. In its environmental assessment for the contract, the bureau claimed it lacked any discretion to deny the contracts or reduce delivery volumes.

“Based on this faulty premise, the EA analyzes only two alternatives, the Proposed Action and the No Action Alternative, both of which continue water diversions and deliveries in the same amounts. Because the EA considers continued water delivery to be the environmental baseline, it concludes that the signing of the interim contracts will have no effect on the environment. Similarly, the EA concludes without substantive analysis that the interim contracts will not violate any other federal environmental laws on the grounds that Reclamation lacks discretion to disapprove them, or to reduce deliveries of water if they are approved,” the complaint states.

“The EA improperly limits its study area for the interim contracts to their delivery or service areas. By doing so, Reclamation ignored the interim contracts’ principal environmental impacts, including their impacts on the Central Valley Project’s source watersheds – including the American, Trinity and Sacramento rivers – and their imperiled fish and wildlife, and on the Delta itself.”

The fishermen say the Central Valley Project Improvement Act gave the Secretary of the Interior 3 years to prepare a programmatic environmental impact statement under NEPA that analyzed direct and indirect impacts and benefits of implementing the Act, including fish, wildlife and habitat restoration actions. The agency had to conduct the same analysis for the potential renewal of all water contracts.

It took the Department of Interior 7 years to complete the programmatic EIS. Its report did not assess the environmental impacts of long-term contracts. That report took another 6 years to be released, and since 2005 the agency has done nothing to complete its environmental review of long-term contracts, the fishermen say.

“Further, Reclamation’s claimed lack of discretion is based on an outdated water needs assessment, which was prepared in 2006. Since 2006, the contractors’ water needs have changed significantly, based in part on retirement of farmland caused by drainage problems. Without an accurate and current picture of the contractors’ water demands, Reclamation’s analysis of purpose and need violates NEPA. Reclamation’s purported justification for its claimed lack of discretion in selecting alternatives or rejecting the contract altogether is unsupportable.”

The bureau’s claimed lack of discretion “caused it to ignore and trivialize the interim contracts’ environmental impacts, and the alternatives that would avoid or reduce these impacts, rendering its EA an empty exercise,” according to the fishermen. Its environmental assessment also fails to “consider the effects of diverting and delivering massive quantities of water, versus halting or reducing those deliveries, on Reclamation’s compliance with other environmental laws such as the Endangered Species Act, the Clean Water Act and the Migratory Bird Treaty Act. The EA’s analysis likewise ignores the cumulative impacts of all of the interim contract renewals.”

The plaintiffs seek a declaration that the agencies broke the law by issuing a FONSI based on an assessment that is legally inadequate and without preparing an environmental impact statement, an order requiring them to withdraw the FONSI and prepare proper documents, and an injunction ordering the environmental review be done expeditiously.

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