The Intent of the Law, The Department of the Interior and The Courts
By Felix E. Smith*
January 13, 2010 -- The Department of Interior – Bureau of Reclamation has again moved to exert its political control over the Fish and Wildlife Service (FWS). The Bureau of Reclamation (Bureau) does not want FWS biologists presenting ecological and biological information to Judges or any independent review body such as the California’s State Water Resources Control Board.
The “unified voice” was instructed as the way to go. A “unified voice” was presented to Judge Wanger during a review of the CVP1A implementation in early 2002. A Bureau representative presented what was called a "unified" DOI position to Judge Wanger. Apparently DOI, Bureau of Reclamation political leaders and Regional Solicitor did not want FWS biologists to make public or present any information, data, biological or ecological reasoning, etc, that might conflict with Bureau data, what the Bureau wants or desires, or what Bureau contractors want or desire.
Since at least 1957 - 58 (the San Joaquin River at Friant issue), the FWS has sought a procedure whereby it can present its biological and ecological facts and reasoning to judges, courts and State Boards, etc, separate and apart from the Bureau. This separate and apart procedure was followed during the hearing before the Water and Power Resources Subcommittee of the House Committee on Interior and Insular Affairs, chaired by Congressman George Miller, regarding the selenium I dead and deformed migratory bird and drainage issues of the San Joaquin Valley in 1985, and later before the State Water Resources Control Board (State Board). The DOI / Regional Solicitor frequently tried to exert its political will, (spoon-feed) to the FWS the Bureau's desired response to the State Board regarding the selenium I drainage I wastewater issue. The FWS biologists were able to present biological information to the State Board. The FWS was also able to present its experts and information to the State Board during the Bay I Delta water quality hearings.
The FWS (as a trustee) has a mandate, as expressed in several statutes, to conserve and protect the people's rights and interests in the Nation's fish and wildlife resources and the habitat upon which they depend. The Bureau manages, develops, protects water resources and operates the CVP with contracts to deliver water to entities for use in cities, family farms and industrial farms, of which some also receive vast subsidy payments. The Bureau's operation of the Central Valley Project (CVP) is supposed to be consistent with California law. The Bureau, with past support of the Regional Solicitor, has frequently ignored its duty to protect the people's fish and wildlife resources as a mitigation obligation of the CVP.
It is well known that the Regional Solicitor has been a captive representative of the Bureau for years. There are some exceptions but not many. A review some of the Regional Solicitor's past performances regarding the Bureau's CVP fish and wildlife conservation matters illustrates this captive representation.
* The Department of the Interior recognized that fish conservation was a part of the CVP according to the Act of March 10, 1934, as amended by the Act of August 14, 1946. Fish studies were initiated in April 1946 with construction of the Tracy Pumping Plant in 1947. Tracy Pumping plant and Pilot fish screen operational July 1951 with the fish facilities operational in 1956.
* In 1954, Solicitor Armstrong (Washington) analysis of the 1954 reauthorization of the CVP indicates fish and wildlife conservation are purposes of the CVP. This has been so since the 1937 authorization as a part of the "other beneficial uses" (Section 2 of the Act of August 26, 1937. The preamble of this Act includes "said investigations and improvements shall include a due regard for wildlife conservation”. Note. In a response to Secretary of the Interior letter of July 20, 1953, the Bureau of the Budget in its letter July 24, 1953, stated the Bureau of the Budget believes that the cost of correcting damages to fish and wildlife resources caused by building of project should be treated as part of the construction costs and allocated to the various purposes in the same manner as other damages, including relocations. It took until the mid 1980's before water was made available to the Grasslands. This occurred after the selenium -deformed birds were found at Kesterson NWR in 1983. The temperature control device at Shasta was not constructed until the 1990's driven by the needs of ESA listed winter-run Chinook salmon.
* In 1957 the Regional Solicitor with the help of the Bureau’s Regional Director complained that the FWS supports flow releases from Friant Dam and Reservoir for Chinook salmon in the San Joaquin River. Bureau folks complained that if such information became public knowledge and accepted by the State Water Board, the effects on the CVP would be catastrophic. Bureau’s Regional Director and Regional Solicitor through Interior told the FWS not to present data or support flows for Chinook salmon below Friant Dam. FWS did not present its flow recommendation. In 1959, the State Board rules in favor of the Bureau's water right. Note. In 1998, the U. S. Court of Appeals stated that based on Section 8 of the Reclamation Act of 1902, the Bureau has the duty to comply with State law. This includes complying with California Fish and Game Code Section 5937 and its provision to keep fish in "good condition" below a dam. The law applies independently of any contractual arrangements with Federal or non-Federal water users (Natural Resources Defense Council v Houston, D.C. No. CV 88-1658 LKK, June 24, 1998). For 50 years the purpose and intent of Code Section 5937 was not met or enforced on Central Valley Rivers, including the San Joaquin River. It was 50 years since a bogus legal opinion supported taking the San Joaquin River from the people. It took a lawsuit and 50 years for the people to take a portion of the San Joaquin River back.
* Federal Reclamation and Related Laws Annotated, Vol. 1, 1972, page 584, under Explanatory Notes state; "Section 1 of the Act of August 27, 1954,68 stat 879, adds authority for the use of the waters of the Central Valley Project for fish and wildlife purposes". This same phrase is on page 1191, Vol. 2 of Federal Reclamation and Related Laws Annotated.
* In September 1976, during a hearing of the Water and Power Resources Subcommittee of the House Committee on Interior and insular Affairs, Edwin Sullivan- USBR Commissioner, testified in response to questioning, he understood that fish and wildlife conservation was a recognized purpose of the CVP per the Act of August 27, 1954. Mr. Lynn Greenwalt - Director of FWS was also present.
* The Regional Solicitor, Sacramento (April 1977), less than 8 months after the USBR Commissioner's statement, advises the Bureau that the 1954 reauthorization of the CVP is very limited in scope, (for Grasslands only), not a full reauthorization of the CVP including fish and wildlife conservation as a purpose. Note. The Regional Solicitor I Bureau staff have refused to recognize the Washington Solicitor's legal opinions that fish and wildlife are purpose of the CVP.
* The Washington Solicitor (Krulitz) in a December 7, 1979, agrees with and reaffirms in writing the 1954 Armstrong analysis that fish and wildlife conservation are purposes of the CVP.
* May of 1981,the Regional Solicitor complains to Washington about the Mono Lake lawsuit and that any recognition of the Public Trust relative to water rights would have a devastating impact on the Bureau's water rights. The Bureau I Solicitor did not support the Public Trust because if the public trust became a part of California water right law, this could jeopardize the operations of Bureau facilities in California.
* A Regional Solicitor memo of March 19, 1982, again advises the Bureau that fish and wildlife conservation are not purposes of the CVP; therefore Coleman National Fish Hatchery is not entitled to CVP project use power. Note. Coleman NFH is a mitigation feature of CVP's Shasta Dam and Reservoir. The Regional Solicitor continued to pass misinformed opinions to the Bureau because the Bureau wanted to keep the status quo.
* Principal Deputy Solicitor Marion Blank Horn on November 18, 1985, writes a detailed opinion, that is a result of the selenium – drainage and dead migratory bird issues. On page 24 of the opinion the Solicitor recognizes that fish and wildlife conservation are authorized purposes of the CVP and that this applies equally to construction as well as operations. The opinion also recognizes that Interior can deliver to the Grasslands for waterfowl purposes.
* Assistant Solicitor for Fish and Wildlife on December 13, 1985, responds to the Sacramento Regional Solicitor's action denying the use of CVP power for Coleman NFH. The Assistant Solicitor states there is ample legal authority for the Bureau to provide water and power to operate Coleman NFH (It is an integral part of Shasta Dam and Reservoir, construction and operation.), the cost of water and power must be borne by the project users. After many years Coleman NFH finally gets CVP project power.
* In 1992 Congress passed the Central Valley Project Improvement Act (CVPIA) Pub. L. No. 102575 reauthorizing many previous Acts that authorized CVP works or actions. The purposes of the CVPIA include: to protect, restore, and enhance fish, wildlife and associated habitats in the Central valley and Trinity basins of California. Also if construction, operation and maintenance activities cause losses to fish and wildlife the mitigation of such losses shall be based on the replacement of ecologically equivalent habitat. Power does not have a priority over fish and wildlife.
With the implementation of the CVPIA, the FWS formulated its Anadromous Fish Restoration Plan, but has not had success implementing that plan. Also since that time the State Board formulated and implemented the 1995 Bay I Delta Water Quality Control Plan (1999).
Even with all the over turned Regional Solicitor's opinions by the Washington Office of Solicitor, Bureau staffers often say that having fish conservation (mitigation) as a CVP purpose since 1992, takes a little while getting used to. It took passage of the CVPIA to make Bureau staffers realize that CVP operational impacts to fish resources must be mitigated in some way. The hope is with ecologically equivalent habitat.
DOI / BR Washington would like the DOl to speak with one unified voice. However when it does it often fails the test of objectivity. It is readily apparent the “DOl unified voice” is what the Bureau administrators want. The credibility of the Bureau, the DOI's unified voice and associated advice has a long way to go before it is accepted or trusted by the public. The problems extend to Chinook salmon losses at the Delta pumps; the Kesterson dead and deformed migratory birds (dead I deformed young shore birds were found in the spring of 2002 within the Westlands WD); the continuing selenium contamination and agricultural drainage to the San Joaquin River; the failure to aggressively pursue construction of the Temperature Control Device on powerhouse intakes at Folsom Dam. The over commitment of available water supply from Folsom Reservoir frequently results in erratic stream flows, high stream temperatures, reduced coldwater storage that manifests itself in significant mortality to holding Chinook salmon adults, unknown mortality to eggs in holding females, and stressing steelhead on the Lower American River are all at the heart of this lack of credibility. The impacts from Folsom Reservoir operation and storage on the Lower American River ecosystem, associated steelhead and Chinook salmon resources to meet the Bay I Delta Water Quality Control Plan and export contracts do not seem to be a concern, also affects the Bureau's credibility.
Under the concept that the people have a right to know what their government is doing, one must ask, - Are scientific data, other technical evidence and scientific reasoning going to be open to political negotiation before being presented to a judge or review body like the State board? Any consensus on technical data can surely be exposed under cross-examination.
It is interesting to note how DOI / Bureau of Reclamation contractor / special interests have swayed the interpretation of laws affecting the operations of the CVP over the years. If the BR / contractor special interests continue to control FWS, the FWS may be again "gagged" and not be able to present good science and make recommendations to protect and restore such public trust resources as Chinook salmon and steelhead and other Delta fishes since the State Board’s decisions could impact the Bureau's CVP operations, affect water rights, instream flows or water quality.
The DOI – Bureau of Reclamation and its contractors, by exerting political control over FWS, are trying to get the FWS to hawk what the Bureau of Reclamation and its contractors support or want. The people must be aware that the Office of the Solicitor is supposed to give advice and counsel on the law, not be an advocate for an agency's position. Such advocacy defeats or circumvents the intent and purpose of a judge, court or other review body to hear the facts. Fortunately any agency I resource facts not presented as part of the DOI “unified voice” (behind closed door dealings) can be exposed under cross-examination.
The State Board will have the findings of Audubon (National Audubon Society v. Department of Water and power, City of Los Angles 33 Cal. 3d 419(1983) 658 P2d709, 189 Cal Rpt 346, cert Denied 464 U.S. 977- 1983) (also the Mono Lake), and U.S. v State Water Resources Control Board 227 Cal Rpt –1986 also Racanelli, the Federal Endangered Species Act (through biological opinions), other laws and court decisions. Court decisions will continue to shape how CVP water rights are implemented, how the CVP is operated and how the purposes of the CVP, as modified by the CVP1A, are implemented.
It is important for the FWS scientists speak about the people’s fish and wildlife resources that are held as a public trust. It is important to have the scientists to present the best biological, ecological and water quality data regarding the needs of Delta fish and wildlife resources to a public body in an open forum and not through parent agency mouthpiece.
Letter to Secretary Salazar regarding the above
* Felix E. Smith is a professional fish and wildlife biologist, with 34+ years of experience with the U.S. Fish and Wildlife Service in supervisory and field positions. He has over 50 years experience working on water management issues. He was one of the biologists on the study team that found the first deformed American Coot at Kesterson National Wildlife Refuge. He is a member of the Environmental Water Caucus of the Sacramento Area Water Forum and is on the Board of Directors of Save the American River Association. The author can be contacted at email@example.com