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November 15, 2005 The Water TRIBAL PROJECTS AZ /CA/NV KLAMATH COHO SALMON PLAN REJECTED: 9TH CIRCUIT CA/OR EPA GRANTS On October 18, the 9" Circuit Court of Appeals held that the Klamath coho The US Environmental Protection operation plan was illegal, finding it failed to provide adequate water flows for coho Agency (EPA) in late October until eight years into the ten -year timeframe (see PCFFA, et al v. Bureau of Recla- awarded more than $40 million in niation, et al, Civil No. 03- 16718). The decision reversed the 2002 -2012 Klamath grants for environmental protection Project Operations Biological Opinion prepared by NOAA Fisheries for the coho. projects to tribes in California, The lawsuit concerns US Bureau of Reclamation's (Bureau's) operation of the Arizona and Nevada. EPA's funding Klamath Project in accordance with its responsibilities under the ESA to protect will be used to develop environmental threatened Southern Oregon/Northern California Coast ( SONCC) coho. programs, build water and sewage The National Marine Fisheries Service (NMFS) determined that the Bureau's treatment systems, and implement air proposed activities — the operation of a federal irrigation system — would cause pollution control, solid waste manage- jeopardy to the SONCC coho salmon. NMFS developed "reasonable and prudent ment, watershed monitoring and alternatives" (RPA) concerning the quantity of water that the Bureau would be restoration projects. required to release from behind Iron Gate Dam to the Klamath River for the years The money will be distributed to 2002 -2012 and how that water would be obtained. The first two phases of the RPA more than 140 tribes in the Pacific contained a phased - approach for the years 2002 -2009; these co- called "short -term Southwest, including $19 million to measures" during the first eight years were at issue before the 9`h Circuit. California tribes, $13.5 million to The court was concerned with the lack of actual analysis by NMFS regarding Arizona tribes, and $7.7 million to Phases I and II. "The BiOp contains no analysis that suggests that the agency Nevada tribes. Expenditures expected determined that, during the eight -year period encompassed by Phases I and II, the include $125,000 to the Torres coho would receive sufficient protection against jeopardy under the proposed plan of Martinez Tribe and $125,000 to the operations." Slip Op. at 14311. Without any factual basis, the court was unwilling to Colorado River Indian Tribe to assess simply rely on NMFS' beliefs: "Although this language suggests, as the district court lead -based paint hazards affecting indicated, that the agency believed that the RPA would avoid jeopardy to the coho, children, $180,000 to the Washoe this assertion alone is insufficient to sustain the BOp and the RPA. The agency Tribe to clean up and restore the Clear essentially asks that we take its word that the species will be protected if its plans are Creek watershed, and $100,000 to the followed. If this were sufficient, the NMFS could simply assert that its decisions Havasupai Tribe, located in the Grand were protective and so withstand all scrutiny." Slip Op. at 14312 Canyon. The 911 Circuit rejected NMFS' view of the Bureau's "57 percent responsibil- The Havasupai Tribe faces ity" conclusion, which was based on the Project providing irrigation to 57 percent of unparalleled environmental challenges the land in the upper Klamath Basin. "The flow level appears to be justified solely — the only access to the reservation is on the basis of the Klamath Project's share of responsibility for the water use. The by helicopter, horseback, or an 8 -mile proper baseline analysis is not the proportional share of responsibility the federal walk. agency bears for the decline in the species, but what jeopardy might result from the More than 90% of the 146 agency's proposed actions in the present and future human and natural contexts. See federally recognized Tribes in the Aluminum Co. of Am. v. Adm'r, Bonneville Power Admin., 175 F.3d 1156, 1162 n.6 Pacific Southwest now have environ- (9th Cir. 1999); see also Nat'l Wildlife Fed'n v. Coleman, 529 F.2d 359, 373 -74 (5th mental programs, up from just a Cir. 1976). Nothing in this section shows that the agency considered the effect on handful 10 years ago. EPA noted that the coho of providing only slightly more than half of the long -term flow needs for this year, Tribes in the Pacific South- the first eight years of implementation." Slip Op. at 14313- 14314. west used grant funds to provide safe The opinion said, "Five full generations of coho will complete their three -year water to more than 1,200 tribal homes, life cycles — hatch, rear, and spawn — during those eight years. Or, if there is recycle more than a million pounds of insufficient water to sustain the coho during this period, they will not complete their waste and clean up more than 150 life cycle, with the consequence that there will be no coho at the end of the eight illegal open dumps. years. If that happens, all the water in the world in 2010 and 2011 will not protect For more information on the the coho, for there will be none to protect." Slip Op. at 14315 (emphasis in original). EPA's tribal program for the Pacific The court remanded the case back to the district court in Oakland for imposition Southwest region, see EPA's website: of an appropriate injunction addressing flow in the river: "We emphasize that the www.epa.gov /reigon09 /indian/ interim injunctive relief should reflect the short life -cycle of the species. It is not For info: enough to provide water for the coho to survive in five years, if in the meantime, the Laura Gentile, EPA, 415/947 -4227 population has been weakened or destroyed by inadequate water flows." Slip Op. at 14317. CASE wEBSiTE: www.findlaw.com [select: 9th Circuit > Oct. 2005 cases > Pacific Coast Federation of Fishermen's Associations v. US Bureau of Reclamation] For info: Kristen Boyles, Earthjustice, 206/ 343 -7340 x33 or website: www.earthjustice.org /news /press.html; Greg Addington, KWUA Executive Director, 541/ 883 -6100 or website: www.kwua.org Copyright© 2005 Envirotech Publications; Reproduction without permission strictly prohibited. 23