The Water Report: Water Rights, Water Quality and Water Solutions in the West Issue 17

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July 15, 2005 The Water Report Fish & Farms Editor's Note: The US District Court decision regarding the opera- tion of Friant Dam was widely hailed by environmental groups as a victory for the fishery of the San Joaquin River. The author of this article is a member of the law firm Best Best & Krieger, whose client is the Friant Water Users Authority. Throughout the article, references are made to "waste" or "wasteful" practices. The reader should keep in mind that "waste" is a term of art in western water law. Under western water law, water is allowed to be put to "beneficial use " — but the manner and extent of such use must be "reasonable." Unrea- sonable, excessive, or inefficient use is deemed "waste " — and not allowed. Water Uses Dam Development FISHERIES RESTORATION SAN JOAQUIN RIVER: REASONABLE REMEDIES? by Christopher H. Calfee, Best Best & Krieger LLP (Sacramento) Many people have never heard of Friant Dam, and even fewer could point to it on a map. Despite its modesty, however, Friant Dam is now the backdrop of one of the major controversies in western water law. Can historic fisheries be restored on a river that has for decades been devoted to supply domestic and irrigation water without inflicting severe hardship on the people and economies that developed in reliance on its flows? On August 27, 2004, the US District Court in the Eastern District of California concluded that fish come first. Natural Resources Defense Council v. Patterson, 333 F.Supp.2d 906 (E.D.Cal. 2004). Specifically, the court held that California Fish and Game Code Section 5937 requires the United States to restore the historic fishery below Friant Dam. Having determined that the US is liable, the court ordered the parties to proceed to the remedies phase of the litigation to determine how to make that restoration happen. The cliche instructs that the devil is in the details and that is where this case becomes very interesting. The parties will now spend the next six months in discovery gathering experts, deposing witnesses, and developing their versions of how such restoration can, or cannot, happen. Whether restoration is physically possible is a fascinating issue in its own right. That question, however, must be answered within the context of the California Constitution, the Central Valley Project Improvement Act (CVPIA), and basic equitable principles that require the court in this case to fashion a remedy that is reasonable. This article will show that arriving at a reasonable remedy is no small undertaking. First, a historical background of the controversy surrounding Friant Dam is presented. Second, the court's August 27, 2004, ruling is briefly explained. The focus of this article, however, is the challenges that the Friant water users believe will make such restoration a much more complex task than simply releasing water from the Friant Dam. Introduction to the Friant Service Area Friant Dam is part of the federal Bureau of Reclamation's (Bureau) Central Valley Project. As described by the United States Supreme Court, the Central Valley Project: "is a gigantic undertaking to redistribute the principal fresh -water resources of California. Central Valley is a vast basin, stretching over 400 miles on its polar axis and a hundred in width, in the heart of California. Bounded by the Sierra Nevada on the east and by coastal ranges on the west, it consists actually of two separate river valleys which merge in a single pass to the sea at the Golden Gate. Its rich acres, counted in the millions, are deficient in rainfall and must remain generally and and unfruitful unless artificially watered... When it is sought to make these streams yield their wasting treasures to the lands they traverse, men are confronted with a paradox of nature; for the Sacramento, with almost twice the water, is accessible to the least land, whereas about three - fifths of the valley lies in the domain of the less affluent San Joaquin." United States v. Gerlach, 339 U.S. 725, 728 (1950) Friant Dam lies in the less water - affluent, but highly productive San Joaquin Valley. The area served by Friant Dam encompasses approximately one million acres on the eastern side of the San Joaquin Valley. The Friant Service Area includes the top three agricultural counties in the nation and about 15,000 small family farms. Its water provides forty percent of the City of Fresno's water supply, a majority of the supply for the City of Lindsay, and nearly all of the water for the City of Orange Cove. In all, the Friant water supply consists of 1.7 million acre -feet (MAF) average annual runoff with 1.4 MAF annual delivery. Average river delivery is 100,000 acre -feet (AF) and approximately 200,000+ AF average flood release. History of Friant Division - Development of San Joaquin River Water Supplies Friant Dam may be one of the largest structures on the San Joaquin River, but it was not the first. Beginning in the mid -19th Century, the river began to be developed as a source of irrigation water. By 1929, there were at least four dams affecting salmon. (G. H. Clark, Fish Bulletin No. 17, Sacramento - San Joaquin Salmon (Oncorhynchus tschawytscha) Fishery of California, Division of Fish and Game of California (1929), NOAA 1706 -1736 at p. 1725.) Among them was "Sack Dam" that was put in place across the river each year at Temple Slough, more than 80 miles downstream of Friant Dam. The Sack Dam diverted the entire flow of the San Joaquin River for months at a time, (generally starting in June or Copyright© 2005 Envirotech Publications; Reproduction without permission strictly prohibited. 15