Interior Opinion Upholds Humboldt’s Right to Promised Trinity Water

Interior Opinion Upholds Humboldt's Right to Promised Water January 2, 2015

By Will Houston

A U.S. Department of the Interior legal opinion released Friday calls for Humboldt County and downstream water users to receive the annual 50,000 acre-feet of Trinity Reservoir water promised to the area under a law and a contract approved nearly 60 years ago.

Elected and tribal officials applauded a U.S. Department of the Interior legal opinion released on Friday, which calls for Humboldt County and downstream water users to receive the annual 50,000 acre-feet of Trinity Reservoir water promised to the area under a law and a contract approved nearly 60 years ago.

“Humboldt County’s annual right to 50,000 acre-feet of water from Trinity Lake is not a close call — it was explicitly guaranteed by statute and in a federal contract six decades ago, but these commitments have been ignored by the federal government,” California’s 2nd District Congressman Jared Huffman said in a statement. “I’m gratified that the solicitor thoroughly examined this issue and that the Interior Department heeded my requests to publicly release the solicitor’s findings. The disclosure of the solicitor’s legal opinion confirms the position I have argued for the past two years and is an important step toward honoring the promise Congress made 60 years ago.”

The Dec. 23 opinion was drafted in response to a request from the department’s Bureau of Reclamation, which acts as a water management agency overseeing several hundred dams across the country, to address the two provisions — one in the 1955 law passed by Congress that established the Trinity River Division and the other in a subsequent contract between Humboldt County and the bureau in 1959. The two provisions have caused numerous legal confrontations with Central Valley water users. The first provision states that only Trinity River Division water — other than that needed to protect Trinity River fish — can be exported into the Central Valley, and the second provision provide that there be at least 50,000 acre-feet of water released annually for the benefit of Humboldt County and downstream water users.

Since the passage of the 1955 law, the bureau has made preventative water releases several times — including within the past three years — to cool waters in the Trinity and lower Klamath rivers to prevent fish kills like that of 2002, which left tens of thousands of fish dead on the lower Klamath.

In 2014, the bureau released a preventative flow and an unprecedented emergency flow after a deadly parasite was discovered in a sample of fish, but the releases were challenged by Central Valley Project water users in subsequent lawsuits. The challenge for the 2014 preventative release was made by two Central Valley water districts, but a U.S. District court judge in Fresno denied the petition for a temporary injunction last year.

The Interior Department opinion refutes previous arguments that these preventative releases in the first provision of the law count toward the 50,000 acre-feet allotment in the second provision.

“The prior interpretations generally deemed water to satisfy Humboldt County and downstream water users under Proviso 2 as being subsumed within the fishery releases of Proviso 1,” the opinion by Department of the Interior Solicitor Hilary C. Tompkins states. “It is my conclusion that these interpretations may not be consistent with the distinct purposes of the two provisos. I conclude instead that the better reading of the statue is that the two provisos authorize and may require separate releases of water as requested by Humboldt County and potentially other downstream users pursuant to Proviso 2 ... .”

The bureau’s Mid-Pacific Regional Director David Murillo wrote a message to tribes and stakeholders on Friday, stating that the department has also drafted a long-term plan “that will serve as general guidance for considering and possibly undertaking actions to protect adult salmon in the lower Klamath River.”

“We look forward to taking the next step to determining uses for this water, and coordinating flow releases with resource agencies that will best benefit our North Coast communities,” 5th District Humboldt County Supervisor Ryan Sundberg said in a statement on Friday.

Hoopa Valley Tribal Fisheries Director Mike Orcutt, who has been working on this issue for several years, stated that Interior’s recognition that the two provisos each refer to “a separate and distinct water supply is a very, very, very important decision to have been made.”

Though there is still potential litigation relating to preventative releases in 2013, Orcutt said the opinion and draft plan for the lower Klamath will bring a lot to the table.

“I think it loads us up and gives us more assurances. There won’t be as much uncertainty,” he said. “... That 50,000 feet of water is a substantial volume of water in this day and age.”