Suit challenges management plan for water in state
Environmentalists say approval process violated federal laws.
By Matt Weiser, Bee Staff Writer
Wednesday, August 10, 2005
A coalition of environmental and fishing groups alleged Tuesday that the federal government chose "political science" over pure science in approving a plan to alter water management in California.
The groups, led by the nonprofit Earthjustice, filed suit in federal court in Oakland on Tuesday against the National Oceanic and Atmospheric Administration and U.S. Bureau of Reclamation.
They claim the Bureau of Reclamation violated the National Environmental Policy Act in approving the water management plan without first conducting an environmental impact study.
They also claim that NOAA's fisheries branch violated the Endangered Species Act in approving a biological opinion that said salmon and steelhead would not be harmed by the bureau's water plan.
The suit is a response to the Bureau of Reclamation's controversial Operations Criteria and Plan, or OCAP, which aims to coordinate state and federal procedures to make more water available from California reservoirs. Critics say the plan will harm fish in the Delta by changing flow conditions and exporting more water to Southern California.
Based on its decision, the Bureau of Reclamation has already renewed scores of contracts to major water users around the state.
"It's important to emphasize the whole Bay-Delta ecosystem is in collapse right now," said Mike Sherwood, lead attorney for Earthjustice, noting continuing declines in striped bass and Delta smelt populations.
"So it seems to be more important than ever to be making decisions about how to manage the state's water based on science, and not for political reasons. That's what this lawsuit is trying to do."
The Bureau of Reclamation's water plan moved forward only after NOAA fisheries officials ruled that the proposed operational changes would not jeopardize survival of salmon and steelhead. That finding, called a biological opinion, came in October 2004.
But an earlier draft of the opinion, leaked to the press, concluded that fish will, in fact, be put in danger by the plan.
Insiders at the time told The Bee that an assistant regional administrator at NOAA, James Lecky, intervened in the drafting of the opinion and changed it to reach a favorable conclusion.
A subsequent investigation by the Commerce Department's inspector general found that Lecky violated agency procedures by intervening, though he was not named in the investigation.
Sherwood said this intervention was not only "arbitrary and capricious," it also violated the Endangered Species Act. The plaintiffs want the court to set aside the final biological opinion and start the process over.
"This was a clear effort to thwart the process as explicitly set forth under the law," said Bill Jennings of the Stockton-based DeltaKeeper group.
NOAA fisheries officials said it is their policy not to comment on pending litigation. Bureau of Reclamation officials could not be reached for comment Tuesday.
The plaintiffs also want the Bureau of Reclamation to be ordered to prepare an environmental impact study on the new water management plan.
Other plaintiffs are the Natural Resources Defense Council, Pacific Coast Federation of Fishermen's Associations, Friends of the River, The Bay Institute, Northern California Federation of Fly Fishers, Sacramento River Preservation Trust and the Winnemem Wintu Tribe.
Since the favorable biological opinion was issued in October, the Bureau of Reclamation has begun renewing long-term water contracts with 240 water users around the state. These include big urban water users such as the Metropolitan Water District of Southern California, and farm users like Westlands Water District, both of which benefit from Delta water exports. About 200 of these contracts have already been renewed.
"At some point, we might get into asking that those be set aside," said Sherwood. "Logically, that would seem to follow if we prevail on the claim that the biological opinion was arbitrary and capricious."
About the writer: The Bee's Matt Weiser can be reached at (916) 321-1264 or mweiser@sacbee.com.
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