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COURT RULES WATER CONTRACTS VIOLATE ENDANGERED SPECIES ACT

Federal Judge Rules that Operation of Friant Dam Affects Endangered Fish in San Francisco Bay-Delta

SAN FRANCISCO (July 29, 2005) -- A federal court has ruled that the Interior Department violated the Endangered Species Act (ESA) when it renewed long term contracts for irrigation water diverted from the San Joaquin River at Friant Dam near Fresno. In a 78-page ruling, the U.S. District Court in Sacramento held that the U.S. Bureau of Reclamation broke the law in 2001 when it issued new 25-year contracts allowing 60 miles of California's second longest river to remain bone dry. The court ruled that the federal government failed to assess adequately whether the contracts would harm endangered salmon and other threatened fish and wildlife.

"This ruling documents the government's utter failure to consider the wide ranging impacts of Friant diversions on downstream fisheries and the San Francisco Bay Delta," said Kate Poole, a senior attorney with NRDC (Natural Resources Defense Council), who argued the case for a coalition of 14 fishing and conservation groups. The court found numerous violations of the law by three federal agencies: the Bureau of Reclamation, Fish & Wildlife Service, and National Marine Fisheries Service.

The court ruled that the agencies had entirely ignored the ESA requirement to recover endangered species rather than simply prevent a further decline toward extinction. The ruling also said the agencies had focused their analyses on an unnecessarily narrow range of actions affecting endangered species. For example, they looked only at the impact of diverting about half of the 2.1 million acre-feet of water authorized by the contracts. The court ruled that if the contracts authorized delivery of 2.1 million acre-feet of water per year, then it was illegal for the government to evaluate only the impacts on fish and the environment of delivering half that amount.

In the ruling U.S. District Court Judge Lawrence K. Karlton wrote, "While numerous examples may be foundů perhaps the clearest instance of arbitrary conduct was when the Bureau, knowing that FWS based its analysis on less than the full contract amount, nevertheless, adopted a 'no jeopardy' findingů Because the Bureau failed to carry out its duty to ensure against jeopardy and adverse modification, and because the Bureau knew of the deficiency, the court must conclude that its conduct was arbitrary and capricious." (See page 71 of the ruling, available here.)

"Federal law requires the government to modify its operations as necessary to protect and recover endangered species," said Poole. "Instead the bureau's new round of contracts simply perpetuates the same destructive operations of the past 50 years, based on the federal wildlife agencies' unsupported 'no jeopardy' findings. The court has now rejected those findings."

The case, NRDC v. Rodgers, is the first legal test of long-term water contract renewals since Congress passed the 1992 Central Valley Project Improvement Act (CVPIA). The Central Valley Project (CVP) is the largest water project in California and the largest federal reclamation project in the West. Congress enacted the CVPIA to protect and restore the Central Valley environment, yet many fish species have continued to suffer since its passage.

"Fisheries agencies have used many of the same defective approaches when considering other long-term contracts for this massive water project," said Hal Candee, NRDC senior attorney. "Their inadequate approach fails to address how CVP operations threaten the health of the entire bay delta ecosystem."

In its July 28 ruling the court found the bureau had no reasonable basis to rely on the agencies' findings when issuing the contracts, but it did not yet offer a remedy for the ESA violations, which will be considered later in the case. Earlier in the case a unanimous panel of the 9th U.S. Circuit Court of Appeals in San Francisco invalidated previous long-term Friant contracts for violating the ESA, forcing the bureau to continue water deliveries to Friant farmers under short-term contracts while new environmental reviews were undertaken.

"Once again, the courts have sent a strong message to the bureau that it is time to reconsider its CVP operations and avoid harmful effects to our threatened fisheries," said Poole. "It is time for the government to take the blinders off and acknowledge the effects of Friant Dam on the downstream environment and our state's imperiled fisheries."

The case is NRDC v. Rodgers, a 17-year-old case challenging Bureau of Reclamation operations at Friant Dam on the San Joaquin River. Last year the court ruled for the plaintiffs on their separate claim under the California Fish & Game Code, holding that the bureau's drying up of the river and destruction of its historic salmon runs violated both state and federal law. A trial on the proper remedy for that claim is scheduled for next spring.

The plaintiffs in the suit are NRDC, Trout Unlimited, California Striped Bass Association, National Audubon Society, Stanislaus Audubon Society, California Sportfishing Protection Alliance, United Anglers, CalTrout, Pacific Coast Federation of Fishermen's Associations, Sierra Club, Bay Institute, San Joaquin Raptor Rescue Center, Friends of the River, and Nor-Cal Fishing Guides and Sportsmen's Association.

The Natural Resources Defense Council is a national, nonprofit organization of scientists, lawyers and environmental specialists dedicated to protecting public health and the environment. Founded in 1970, NRDC has more than 1 million members and online activists nationwide, served from offices in New York, Washington, Los Angeles and San Francisco.

Related Press Materials
July 28, 2005, NRDC v. Kirk C. Rodgers, etc., et al.

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