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Embattled salmon have won a fight over water in the drought stricken Pacific Northwest. A federal court judge ruled that the U.S. Bureau of Reclamation cannot deliver water for agricultural irrigation without considering the needs of coho salmon in the Klamath River.
In Oakland, Judge Saundra Brown Armstrong of the Federal District Court for the Northern District of California found that the Bureau deliberately and knowingly violated the Endangered Species Act in its operation of the Klamath Project in southern Oregon and northern California.
The court ordered the Bureau to halt temporarily irrigation deliveries in the Klamath River Basin whenever water flows drop below designated minimums in order to protect coho salmon listed under the act.
The lawsuit was brought by a coalition of fishing and conservation groups seeking an end to Bureau practices that have decimated the coho salmon and other wildlife. The plaintiffs in the case include Pacific Coast Federation of Fishermen's Associations, Klamath Forest Alliance, Institute for Fisheries Resources, Northcoast Environmental Center, The Wilderness Society, Sierra Club, Golden Gate Audubon and Oregon Natural Resources Council.
Judge Armstrong found that the bureau's evasion of the Endangered Species Act "easily might be construed as a deliberate effort to avoid" compliance with the law.
"The law is crystal clear that the bureau must consider the needs of the salmon and other wildlife species before devoting the lion's share of the basin's scarce water to other uses," said Jan Hasselman, an attorney for Earthjustice Legal Defense Fund, which represented the coalition in the lawsuit. "The days of putting irrigators ahead of all other interests in the basin are officially over."
The Endangered Species Act was violated because the bureau did not consult with the National Marine Fisheries Service in the year 2000 to ensure that its operation of the Klamath Project did no harm to the coho, an ESA listed species.
This consultation process is completed only when the fisheries service issues a formal document known as a biological opinion setting out conditions on Klamath Project operations to protect the coho. In the past, this has included mandatory minimum flows in the Klamath River to protect the fish.
But during the 2000 water year, the Bureau of Reclamation failed to seek a biological opinion from NMFS as it was required to. The Hasselman argued that the bureau did not seek the opinion because it feared the fisheries service would require increased flows recommended by a highly respected Department of Interior commissioned report.
The conservation and fishing groups are urging the Klamath Basin farmers to conserve water. "Many farms in the basin use water very inefficiently and wastefully. Others are economically very marginal," Hasselman said. They support efforts by the state and federal governments to provide financial assistance to farmers in the Klamath basin who are suffering from water shortages.
Steelhead salmon, a different population of fish in the same river that failed to win federal protection yesterday, will also benefit from the increased amount of water that will flow in the Klamath. The National Marine Fisheries Service decided that the population of steelhead salmon is among the more abundant in the region, making federal protection unnecessary.
The Klamath Project intercepts key rivers and streams that flow into and out of Klamath lake and diverts them to irrigators. More than 75 percent of the area's wetlands have been lost to agriculture because of the project. Almost 7,000 fishing dependent jobs at a value of $137 million per year have been lost due to harm done to Klamath River salmon, Hasselman says.
The Bureau of Reclamation, in a 1999 summary of public comments on the environmental impact of the Klamath Project, said the agency should not be held solely responsible for the decline of the coho salmon.
"The Klamath Project may not be representative of the entire watershed. Other factors besides Project operation affect the ecosystem and downstream fish. Reclamation and the Project should not be responsible for complete deterioration of the downstream fishery," the agency said.
Part of the Klamath Project, the Lost River Diversion Dam is on Lost River about four miles below Olene, Oregon.
"There is no scientifically defensible method for defining the instream flows needed to protect particular species of fish or aquatic ecosystems, or to justify lake levels," the bureau wrote. "Some believe that low lake levels reduce habitat and that minimum lake levels should be guaranteed. Others believe that higher lake levels do not necessarily mean better habitat because of a number of recent fish kills during high lake levels."
The agency agreed that it should look at increasing fish passage conditions to increase river and lake spawning habitat. "Adequate instream flows would improve quality of mainstem habitat," the bureau acknowledged.
The legal battle over water in the Klamath Basin is just part of a series of balancing acts between water, power and fish taking place in the Pacific Northwest this spring. An unusually dry winter in the region has competing interests battling for water.
The Bonneville Power Administration (BPA), the federal agency that supplies most of the electricity in the region, said Tuesday that federal agencies will not initiate the planned release of water through spillways at dams on the Columbia River to assist juvenile salmon in their spring migration to the sea.
"This was a very painful, difficult decision, but the drought has so depleted water supplies that the reliability of the region's electricity system is in peril," said Steve Wright, acting BPA administrator.
The hydropower system will be operated without spill for at least two weeks under emergency provisions of the biological opinion that prescribes actions to save endangered stocks of salmon.
In an operational plan to be released April 13, the federal agencies will describe what levels of spill may be available for spring and summer fish migrations over the April-August period. Water saved by not spilling is sufficient to generate 1,000 megawatts - enough to serve a city the size of Seattle.