October 20, 2005
KWUA
Response to Ninth Circuit Court Ruling in PCFFA v
Earlier this week
the Ninth Circuit Court of Appeals reversed the 2002-2012 Klamath Project
Operations Biological Opinion (BO) prepared by NOAA Fisheries for coho salmon.
They claimed the BO was arbitrary and capricious and further remanded the case
to the district court instructing it to issue an injunction
We are obviously
disappointed in this decision from the 9th Circuit.
The court’s decision threatens the water supply for family farmers
and ranchers as well as two of the nation’s most important national wildlife
refuges. The court elected to substitute its judgment on matters of
biology and species protection for the judgment of the agencies assigned this
job by law, and implies the Klamath Project can unilaterally recover the coho,
which it cannot. We believe that
the Biological Opinion (BO) in question clearly reflected NOAA fisheries best
judgment as to the long term viability of the species. That BO struck a
reasonable balance between the science of the Hardy flow requirements and that
of the NRC Report. The
"Reasonable and Prudent Alternative" (RPA) identified by NOAA
Fisheries concluded that the species will not be jeopardized as long as by
year 2011 the full 100% flow is achieved.
The court did not
have before it the FINAL report of the National Research Council / National
Academy of Sciences, which clearly states that a myopic focus on reallocation
of irrigation and wildlife refuge water supplies is not the way to address
concerns with coho populations. The court obviously focused their attention
strictly on the Hardy science and brushed off the concerns raised by the NRC
committee. We now also know that
the court’s assumptions about the magnitude of the Klamath Project’s
relative impacts (57 percent of
We believe this
courts ruling was Arbitrary and Capricious.
In recent years,
Klamath Project water users have cooperated in programs that have resulted in
ever-increasing amounts of water being dedicated to in-stream flows for coho
salmon located far downriver from Project lands. In fact, by release of water
stored during high flow periods for irrigation, the Klamath Project has
furnished flows higher than would occur in a natural state. The increased
flows have been pursuant to a long-term plan by the federal agencies, which
seeks ultimately to address the multitude of factors that affect coho salmon
in the watershed. The
Court’s decision
suggests that everything else can be ignored, and that flows from the Klamath
Project will mitigate for all other impacts within the 5.1 million acre
watershed.
In 2001, water was
reallocated away from the Klamath Project by biological opinions which are now
known to have been based on flawed science. The residual effects of that
flawed science have resurfaced in the ninth circuit’s decision. KWUA
will, as it always has, continue to advocate a comprehensive, watershed-wide
approach to address species recovery.
Finally, we
believe this is another prime example of why the ESA should be updated and
amended. Anti agriculture groups have used this act once again not to aid in
recovery of the species, but more as a tool to try and derail the Klamath
Irrigation project.
The Klamath
project accounts for less than 4% of the water resource in the entire
watershed. Recovery of this species can not be done solely on the backs of
these family farms.
Regarding future actions related to the decision specifically, KWUA is evaluating its options.
Greg Addington
Executive Director