Public Interest Environmental Law Conference 2017: One Cause, One Voice
Eugene, Oregon March 2–5, 2017
Protecting and Restoring Free Flowing Rivers
Presented by: Douglas W. Wolf, Center for Biological Diversity; Drevet Hunt, Lawyers for Clean Water; and Konrad Fisher, Klamath Riverkeeper.
This panel explored a series of legal tools available for attorneys to protect and restore instream flows.
To begin, Douglas Wolf discussed legal tools that the Center for Biological Diversity (the “Center”) and other organizations use to fight harmful seasonal flow diversions on the Gila River. Specifically, Wolf explained how the Center uses critical habitat of the endangered fish to protect Instream flow using the Endangered Species Act (“ESA”). The Gila River begins in an arid watershed in New Mexico. Heavy spring flows from snowmelt safeguard the river’s water quality. However, under a series of settlements and agreements, water users are allowed to store the heavy spring snowmelt from the Gila River and divert it for irrigation and other purposes. In addition to harming the Gila River’s water quality, diverting spring snowmelt harms the loach minnow, a tiny fish listed as a threatened species. To avoid being flushed down the river during heavy snowmelt, the loach minnow spends most of its time near the Gila River’s banks where the flow is less intense. But snowmelt diversions pose a risk to this habitat because the water gets diverted from these same edges of the river.
Wolf explained how the Center used the risk to the loach minnow’s critical habitat to help protect the Gila River’s instream flows. In 2009, the Center won a lawsuit against the United States Fish and Wildlife Service arguing that the previous designation of five hundred river miles of critical habitat for the loach minnow was insufficient. In 2012, The Fish and Wildlife Service not only designated 710 miles of critical habitat, but also listed the loach minnow as an endangered species. Saving the loach minnow’s critical habitat and adding it to the endangered species list helped protect instream flows in the Gila River.
The next panelist, Drevet Hunt, discussed three examples of litigation tactics used to restore instream flows: the ESA, California’s constitution, and the state’s fish and game code. First, Hunt discussed how petitioners sued under Section 9 of the ESA to increase instream flows on the Shasta River below the Dwinnell Dam in California. They argued the dam blocked historic runs of the endangered coho salmon and constituted an unpermitted taking. In 2013, petitioners settled with the dam’s operators, who agreed to obtain an incidental take permit and create a long-term flow and habitat restoration plan to encourage coho salmon populations.
Hunt next discussed how California attorneys use the state’s constitution to protect instream flows. In 2014, Lawyers for Clean Water used a section of the constitution that forbids waste and the unreasonable diversion and use of water to sue the State Water Resources Control State Board over the City of Buenaventura’s over-pumping of the Ventura River. Buenaventura’s over-pumping affected eleven endangered species and reduced local steelhead populations by ninety-six percent. This litigation is still pending, but the state has made some efforts in working to enhance Ventura River flows.
Third, Hunt explored how petitioners successfully used Section 5937 of California’s Fish and Game Code against dam operators to restore instream flows. This section of the code mandates that owners of dams “allow sufficient water at all times to pass . . . over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam.” In one example, a federal court even enforced this law against a federal dam operator, the United States Bureau of Reclamation.
Last, Konrad Fisher discussed the impacts of diversions on the Klamath River. Fisher began by discussing some fundamental changes he would like to see in how the public approaches water quantity issues. Fisher acknowledged that rivers provide food and recreation, create jobs, improve ecosystems, and play integral roles in human culture and religion. One way to protect those values, Fisher suggested, is to frame water diversions through percentages rather than total quantities. He argued the public would be more understanding of water quantity issues if, for example, water settlements apportioned seventeen percent of flows for fish. Fisher encouraged a cultural shift and a movement towards voluntary instream flow restoration as the only way to properly approach a long-term sustainable water use model.
Image: Section of the Middle Gila River in Arizona. Flickr user Desert LCC, creative commons.