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Federal Legal Opinion Favors Humboldt County’s Claim on Trinity Water

February, 2015

In a major reversal of past Interior Department legal opinions, the department’s solicitor, Hilary C. Tompkins, affirmed in January that Humboldt County’s 50,000 acre-foot contract for Trinity River water with the Bureau of Reclamation (BOR) is in addition to fishery flows.

Previous Interior opinions and BOR positions maintained that Humboldt County’s water was part of existing fishery flows. The new opinion is significant because it will mean more water for the beleaguered fisheries of the Klamath and Trinity Rivers.

The new opinion is the legal foundation justifying increased water releases from Trinity Lake to prevent repeats of the 2002 Lower Klamath River fish kill. In that incident, 65,000 adult salmon, mostly from the Trinity, perished from disease and poor water quality. Humboldt County has in the past repeatedly offered its water in times of need to avoid such incidents. The Solicitor’s Opinion came out concurrently with a draft plan by the Bureau of Reclamation for “Protecting Late Summer Adult Salmon in the Lower Klamath River.” This draft plan details future releases from Trinity Lake into the Lower Klamath River during late summer and fall to prevent a repeat of the 2002 fish kill. Successful supplemental releases from Trinity were made in 2003, 2004, 2012, 2013 and 2014. Comments were expected due on the draft plan by January 31, 2015, just after this issue of EcoNews went to print.

The Fresno-based Westlands Water District has unsuccessfully challenged these supplemental flows in court. Despite allowing the flows to proceed, federal judge Lawrence O’Neill strongly encouraged BOR to come up with a long-term plan, legal justification and an environmental document for the releases.

Despite this new legal opinion to support increased flows from the Trinity to the Klamath, there remains no legal requirement that will prevent the draining of Trinity Lake to “dead pool” by concurrently decreasing diversions to the Sacramento River. In 2000, former Interior Secretary Babbitt increased Trinity River flows but did not provide an enforceable mechanism to prevent draining the reservoir to mud.

Further, this new opinion  heartening, it is not a court decision.  It is similar to a legal brief and will purportedly be used by the Justice Department to oppose ongoing litigation by the Westlands Water District and their allies to halt increased Trinity River releases into the Lower Klamath River. Westlands incorrectly claims that the Trinity River water is “theirs,” but has lost several court cases related to the river.

The Trinity River is the largest tributary of the Klamath River.  The Trinity River Division of the Central Valley Project was completed in 1963 and has diverted an average of 900,000 acre-feet of water per year to the Sacramento River.

A 10.7 mile tunnel through the Coast Range diverts Trinity water to Whiskeytown Reservoir and another 2.4 mile tunnel sends the water into the Sacramento River below Shasta Dam, generating significant amounts of electricity along the way.   Because of the hydropower value and the fact that Trinity River can flow naturally to both the Klamath and to the Sacramento River, it is the most valuable water in California.

The Trinity River was dammed specifically to provide “surplus” (and heavily subsidized) water to the San Luis Unit of the Central Valley Project (CVP). This includes Westlands, a 600,000 acre corporate agricultural water district west of Fresno. The district’s soils are infused with naturally-occurring, and toxic, selenium, boron and arsenic.  Irrigation mobilizes these elements into regional waterways, polluting them—a situation that won’t change until irrigation ceases.  

Climate change, the demand created by the planting of permanent crops such as almonds, emergency drought legislation and the Bay-Delta Conservation Plan are all threats that could ultimately drain Trinity Lake if some form of protection is not put in place.  Former Assemblyman Wes Chesbro unsuccessfully attempted to protect the Trinity River by requiring the State Water Resources Control Board to establish minimum carryover storage in Trinity Lake by introducing AB 1914 in 2014—which failed due to objections from the State Water Board.  Chesbro was the lone Assemblyman to vote against the recently approved water bond for that reason.