Friday, August 16, 2013

Court Extends Temporary Restraining Order Against Excess Storage Releases From CVP's Trinity River Division

On August 14, 2013, the U.S. District Court for the Eastern District of California extended a modified temporary restraining order (“TRO”) prohibiting excess releases of stored water into the Trinity River from the Central Valley Project's ("CVP") Trinity River Division.

Citing likely violations of the Central Valley Project Improvement Act's Trinity River Restoration Program Record of Decision ("TRROD") and the National Environmental Policy Act, the court extended the TRO to August 23 after finding “that Plaintiffs have demonstrated a likelihood of success on the merits and the possibility of irreparable harm that is not clearly outweighed by the equities on the other side."

Some 453,000 acre-feet of CVP water is already being released from the Trinity River Division in 2013 for the benefit of fall-run Chinook salmon in the Trinity River system pursuant to the TRROD.  The court extended the TRO despite opposition from the Hoopa Valley and Yurok Tribes, the Pacific Coast Federation of Fishermen's Associations and federal government contending that the excess CVP storage releases may prevent a possible disease outbreak that could affect Chinook salmon in the lower Klamath River.

The TRO prohibits the Bureau of Reclamation (“Reclamation”) from releasing into the Trinity River up to 109,000 acre-feet of water from storage in the federal CVP's Trinity and Lewiston reservoirs, pending an expedited hearing in which Federal Defendants are ordered to show cause why the modified TRO should not be converted to a preliminary injunction.

In the modified TRO, the court acknowledges the potential economic and environmental harms to Plaintiffs if the water releases go forward, while acknowledging questions about “whether these augmentation flows are truly necessary to prevent fish kills like that experienced in 2002.”  

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Tuesday, August 13, 2013

Temporary Restraining Order Granted in Lawsuit Challenging the Bureau of Reclamation's Planned August and September 2013 Supplemental Releases from Lewiston Dam

On August 13, 2013, the U.S. District Court for the Eastern District of California issued a temporary restraining order ("TRO") prohibiting the Bureau of Reclamation ("Reclamation") from releasing into the Trinity River up to 109,000 acre-feet of water from storage in the federal Central Valley Project's ("CVP") Trinity and Lewiston reservoirs between August 13 and September 30, 2013.

The TRO follows the filing of a Complaint on August 7, 2013, by the San Luis & Delta-Mendota Water Authority and Westlands Water District (“Plaintiffs”) challenging the Reclamation’s decision to make Trinity River storage releases above and beyond the existing 453,000 acre-feet of releases dedicated to fall-run Chinook salmon fishery restoration and maintenance in 2013.

Reclamation had described the additional 109,000 acre-feet of excess releases as needed for fall-run Chinook salmon located below the confluence of the Trinity River and Klamath River (i.e., lower Klamath River).  The TRO cites the Complaint's argument that a year 2000 federal Record of Decision already dedicates 453,000 acre-feet of CVP water from Trinity Reservoir for restoration and maintenance of fall-run Chinook salmon this year, and that Reclamation could have used that water to provide the late summer flows at issue in the litigation.  The TRO also cites the Complaint's argument that Reclamation decided to make the excess late summer CVP storage release without analyzing and disclosing resulting impacts to CVP water users under the National Environmental Policy Act.

The TRO enjoins Reclamation “from making releases from Lewiston Dam to the Trinity River in excess of 450 cubic feet per second (‘cfs’) for fishery purposes through and including August 16, 2013.”  The short duration of the restraining order is designed to allow Plaintiffs to file reply papers and will afford the court an opportunity to perform a more detailed analysis of the issues.

The TRO was issued despite opposition by federal defendants and defendant-intervenors (Hoopa Valley Tribe, Pacific Coast Federation of Fishermen’s Associations, and Institute for Fisheries Resources).