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July 15, 2005 The Water Report
<br />Fish & Farms
<br />Section 5937
<br />AG's Opinion
<br />Inelastic
<br />Demand
<br />Bureau
<br />Releases
<br />Salmon Runs
<br />CVPIA
<br />Applicability of Section 5937 to the Friant Division
<br />In the 1950s, a battle erupted between CDFG and the Department of Public Works about whether
<br />California Fish and Game Code Section 5937 applied to Friant Dam, and how. Section 5937 states that:
<br />"The owner of any dam shall... allow sufficient water to pass over, around or through the dam, to keep in
<br />good condition any fish that may be planted or exist below the dam." The agencies ultimately agreed to
<br />let the California Attorney General decide. In 1951, the Attorney General issued a formal opinion ruling
<br />that Section 5937 does not require release of water otherwise needed for irrigation. Instead, because the
<br />State CVP Act was more specific, it prevailed over the more general requirement of Section 5937.
<br />Operation of Friant Dam
<br />Friant Dam supplies water for irrigation and municipal users. Municipal users include the cities of
<br />Fresno, Orange Cove, and Lindsay, plus Fresno County Water Works District No. 18, and the County of
<br />Madera. The water used for municipal and industrial purposes within the Friant Service Area cannot be
<br />reduced significantly because the water demand is relatively inflexible and does not vary from year -to-
<br />year according to hydrological or climatic conditions.
<br />The demand for irrigation water is similarly inelastic. In many of the districts in the Friant Service
<br />Area, nearly all of the irrigated acreage is devoted to permanent crops such as orange groves, vineyards,
<br />and orchards. Permanent crops take a number of years to mature before generating a return on
<br />investment and require a significantly greater initial investment. The districts that have a majority of
<br />acreage planted to permanent crops thus have less flexibility in water demand than districts with more
<br />annual crops. With permanent crops a farmer cannot consider the availability of water each year and
<br />decide what crops to plant. Even in the driest years, farmers must irrigate their permanent crops. Loss of
<br />irrigation water for even a year or two will result in the destruction of orchards or vineyards.
<br />Despite the significant municipal and irrigation needs for Friant water, water is released from the
<br />dam. As part of the agreement with downstream property owners which allowed the Bureau to divert
<br />water for irrigation purposes at Friant, the Bureau agreed to release enough water from Friant Dam to
<br />maintain, at all times, a flow of at least 5 cubic feet per second (efs) measured at Gravelly Ford (37 miles
<br />downstream). To meet its commitment, the Bureau has released at least 100,000 AF per year from Friant
<br />Dam in each of the last 10 years. The average annual release is much higher, however, because
<br />additional water is released in wet years to clear storage space in Millerton Reservoir for flood control
<br />purposes. In 1998 (wet year), 1,603,000 AF were released, while in 2003 the amount released was
<br />129,000 AF. These releases are required to satisfy water rights between Friant and Gravelly Ford and to
<br />make up for channel losses in the riverbed between Friant and the headworks of the Gravelly Ford Canal.
<br />The species that exist below Friant Dam, in part because of these releases, include cold -water
<br />species such as trout, lamprey and stickleback and warm -water species such as largemouth bass, catfish
<br />and bluegill. The Bureau is also releasing substantial quantities of water stored in nearby Millerton Lake
<br />to operate the San Joaquin River Hatchery run by CDFG (immediately below Friant Dam). These
<br />releases are made every day and permit CDFG to raise as many as nine million rainbow trout annually.
<br />Notably, salmon are now returning to the San Joaquin River system in about the same abundance as the
<br />years immediately before Friant Dam was completed. For example, the CDFG estimates that
<br />approximately 11,000 adult salmon entered the Merced River in 2001. During the fall run in 2003, more
<br />than 25,000 salmon spawned in the San Joaquin River system, including nearly 5,000 in the Merced
<br />River. Although adult salmon returns have been variable, since 1999 the number of adult salmon
<br />returning to the San Joaquin River system to spawn has averaged more than 30,000 salmon, while the
<br />average of returning adult salmon, Central Valley -wide, has exceeded 600,000 adults.
<br />The Current Litigation
<br />Nearly forty years after Friant Dam's construction, in December 1988, Natural Resources Defense
<br />Council, the Sierra Club and others sued the Bureau and Friant water users to set aside CVP long -term
<br />contract renewals. The suit was originally filed on a narrow issue under the National Environmental
<br />Policy Act (NEPA). In October of 1992, while litigation was pending, Congress passed the Central
<br />Valley Project Improvement Act (CVPIA). The CVPIA provided for up to 800,000 AF of CVP yield to
<br />be made available for fish and wildlife purposes. Regarding the San Joaquin, however, the CVPIA
<br />provided that the Secretary of the Interior shall not release water to address fishery concerns until after
<br />developing a "Comprehensive Plan" that is "reasonable, prudent and feasible." (CVPIA, Pub. L. 102-
<br />575, § 3406(c).)
<br />Plaintiffs submitted their Seventh Amended Complaint on July 19, 2003, which contained multiple
<br />claims, including alleged violations of the Administrative Procedure Act (5 U.S.C. §§ 701 -706) (APA),
<br />Section 8 of the Reclamation Act of 1902 (23 Stat. 390, 43 U.S.C. §§ 372, 383) (Section 8) and Section
<br />5937 of the California Fish and Game Code (Section 5937); violations of NEPA (42 U.S.C. §§ 4321 et
<br />Copyright© 2005 Envirotech Publications; Reproduction without permission strictly prohibited. 17
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