Somach Simmons and Dunn, Attorneys at Law Somach Simmons & Dunn | Attorneys at Law

Subscribe to our eAlerts

Please complete the form below to subscribe and recieve our monthly eAlerts via email.

March 3, 2017  |  Written by Aaron A. Ferguson

Ninth Circuit Holds That 2013 Trinity River Augmentation Releases Were Lawful

The Ninth Circuit Court of Appeals recently upheld the United States Bureau of Reclamation’s (Reclamation) 2013 release of Trinity River water in an amount greater than that contained in the applicable release schedule to prevent the death of winter-run salmon in the lower Klamath River.  San Luis & Delta-Mendota Water Authority v. Haugrud, No. 14-17493 (9th Cir. 2017).  In a challenge to this release by the San Luis & Delta-Mendota Water Authority (SLDMWA) and Westlands Water District (Westlands), the Ninth Circuit found that the August 12, 1955 Act (1955 Act) authorizing construction of the Trinity River Division (TRD), an addition to the Central Valley Project (CVP), gave Reclamation the power to release the water.  The Ninth Circuit also held that the release did not violate various provisions of the Central Valley Project Improvement Act (CVPIA).

The Trinity River flows from the Trinity Alps in Northern California to the Klamath River.  Water then flows forty miles to the Pacific Ocean.  The Hoopa Valley and Yurok Indian Tribes have reservations along the Trinity River and the Klamath River.  Specifically, the Trinity River bisects the Hoopa Valley Reservation and the Klamath River bisects the Yurok Reservation.  The congressional purpose of the TRD’s addition to the CVP was to divert water from the Trinity River to the Sacramento River “for irrigation and other beneficial uses in the Central Valley.”  At the same time, Congress authorized the TRD to maintain and improve fishery conditions.  The TRD authorized construction of the Trinity and Lewiston Dams on the Trinity River.  Starting at the upstream end of the Trinity River, water is first impounded by Trinity Dam.  Water that continues downstream is then impounded by Lewiston Dam.  Lewiston Dam is the point where Reclamation diverts water to the Sacramento River.  Water that is not diverted continues downstream to the Klamath River.

The TRD became operational in 1964, and for the first ten years diverted about 88 percent of the Trinity River flow to the Sacramento River.  These diversions ended up having a significant impact on fish populations.  In the late 1970s and early 1980s, fishery agencies were tasked with developing a plan for long-term management of the fish and habitat in the Trinity River.  The agency recommendation of releasing between 287,000 and 340,000 acre feet from Lewiston Dam, depending hydrologic year type, was ultimately made effective by the Secretary of the Interior.  In 1984, Congress directed the Secretary to “formulate and implement a fish and wildlife management program for the Trinity River Basin designed to restore the fish and wildlife populations” to pre-TRD levels. In 1992, Congress authorized the CVPIA “to protect, restore, and enhance fish, wildlife, and associated habitats in the Central Valley and Trinity River basins,” while also seeking “to achieve a reasonable balance among competing demands for use of Central Valley Project water.”  Section 3406(b)(23) of the CVPIA provided for water releases “to the Trinity River of not less than 340,000 acre feet per year” from 1992 through 1996. It also directed the Department of the Interior (DOI) to “complete the Trinity River Flow Evaluation Study.”

In 1999, having completed the flow evaluation study, DOI released its preferred alternative in which Reclamation would release between 369,000 and 815,000 acre feet from the Lewiston Dam.  By 2012, fishery conditions had improved.  In that year, however, Reclamation predicted a large return of salmon, but minimal flows in the Klamath River.  Reclamation therefore recommended an augmentation release of an additional 48,000 acre feet to prevent a fish die-off in the Klamath.  Reclamation claimed that the 1955 Act provided the principal authorization for the release.  Ultimately, Reclamation released an additional 39,000 acre feet.  In 2013, Reclamation recommended an additional release of 62,000 acre feet for the Klamath River fishery, citing the 1955 Act as well for authority to do so.  In 2013, Reclamation only released an additional 17,500 acre feet.

In August 2013, after release of the environmental documents for the release, SLDMWA and Westlands filed suit claiming the release violated the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA) and the CVPIA.  The District Court found for the defendants, United States Department of the Interior, et al. on these claims, but also concluded that the 1955 Act did not provide authorization for defendants to implement the 2013 flow augmentation release to benefit fish in the lower Klamath.  Defendants appealed the District Court ruling on the 1955 Act and SLDMWA and Westlands appealed all claims except NEPA.

The 1955 Act Provides Authorization for the 2013 Releases

The 1955 Act provides that the TRD will be integrated with the CVP in a manner that provides for economic use of water resources, provided, that, “the Secretary is authorized and directed to adopt appropriate measures to insure the preservation and propagation of fish and wildlife, including, but not limited to, the maintenance of the flow of the Trinity River below the diversion point.”  The Ninth Circuit reviewed this language and did not find any ambiguity in this “preservation and propagation” provision, and concluded that this language is not limiting either in geography or otherwise.  Absent any limiting language, the Ninth Circuit held that the Acting Secretary of the U.S. Department of the Interior (Secretary) had broad discretion to determine what constitutes “appropriate measures” in the face of changing circumstances.  The Ninth Circuit reasoned that when Congress adopted the TRD it thought it could maintain fish populations in the Trinity River while diverting water to the Sacramento River.  Since Congress, however, was not sure what the downstream effects of the TRD might be, it provided the Secretary the authority to take necessary measures to preserve resources in the Trinity and Klamath Rivers.  The Ninth Circuit ultimately held that the 2013 augmentation release fit within the 1955 Act’s mandate that the Secretary ensure the preservation and propagation of fish and wildlife.  In response to claims by SLDMWA and Westlands that Section 3406(b)(23) permanently resolved how much water should be released, the Ninth Circuit concluded that there is no “clear and manifest” intention in later legislation to repeal the 1955 Act.

The 2013 Release Did Not Violate Section 3406(b)(23)

Pursuant to Section 3406(b)(23), DOI established a permanent water release schedule for Lewiston Dam.  The Parties agreed that Section 3406(b)(23) sets a minimum and a maximum amount of water that Reclamation may release under Section 3406(b)(23), but SLDMWA and Westlands claimed this schedule set an absolute maximum and the 2012 and 2013 releases exceeded the cap.  The Ninth Circuit found that the releases provided for under Section 3406(b)(23) were intended to specifically benefit the Trinity River and that any water that Reclamation releases to benefit areas outside of the Trinity River is not subject to the release schedule in Section 3406(b)(23).  The Ninth Circuit found that because the 2013 release was intended to benefit the Klamath River, it did not violate Section 3406(b)(23).  Thus, the Ninth Circuit upheld the District Court on this issue.


The Ninth Circuit upheld the District Court decisions on the other CVPIA claims, and found that SLDMWA and Westlands lacked standing to bring the ESA claims.

For additional information please contact Aaron Ferguson at or 916-446-7979.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.

Read more news and alerts »