Tuesday, January 17, 2012

Parties in Salmon Litigation File Stipulation Regarding CVP and SWP Operations in 2012

On January 12, 2012, the National Marine Fisheries Service (NMFS), the California Department of Water Resources (DWR), and public water agencies filed a stipulation with the United States Eastern District Court that proposes modified Central Valley Project (CVP) and State Water Project (SWP) operations for the period of April 1 to May 31, 2012.

The stipulation describes the state and federal agencies' agreement to install a seasonal rock barrier at the head of Old River, near Lathrop, designed to keep salmonids from entering Old River, in the direction of the export pumps. The stipulation also includes more flexible guidelines governing permissible flows in Old and Middle Rivers and an increased commitment to acoustic tagging of listed fish to gather information on migratory patterns.

The parties filed the Joint Stipulation Regarding CVP and SWP Operations in 2012 (available here) in the Consolidated Salmonid Cases, Case No. 1:09-cv-1053, the case challenging the biological opinion that governs long-term operations of the CVP and SWP. In September 2011, the district court issued a memorandum decision finding the so-called 2009 Salmonid BiOp and its Reasonable and Prudent Alternative (RPA) arbitrary, capricious, and unlawful. A later order by the court indicated that parties to the case could present stipulations on project operations in 2012.

Because the judgment entered in the Consolidated Salmonid Cases remanded the 2009 Salmonid BiOp and RPA, without vacatur, it had the effect of leaving RPA actions in place, notwithstanding the court's finding that they were unlawful. Had the parties not agreed on modified operations for April 1 to May 31 of this year, RPA Action IV.2.1, which sets a San Joaquin River inflow-to-export ratio requirement for the same period, would likely have severely restricted CVP and SWP operations.

Concurrent with a press release announcing the stipulation (available here), NMFS also made public its "Summary of the Expected Benefits to Salmonid Survival of a Rock Barrier at the Head of Old River & Preferential Use of the Central Valley Project Export Facility" (available here). The summary describes the expected benefits of placing a rock barrier at the head of Old River, as well as an explanation of the adaptive range of Old and Middle River flows included in the plan for 2012 operations and the rationale for preferential diversion of water through the CVP facility rather than the SWP facility.

For more information regarding this matter, please contact Rebecca R. Akroyd or K. Eric Adair, or the KMTG attorney with whom you normally consult.

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