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Court fight starts over water and fish

A single dead salmon on the lower Klamath River in September 2002, when tens of thousands of fish died in the low, warm river.
A single dead salmon on the lower Klamath River in September 2002, when tens of thousands of fish died in the low, warm river. Triplicate file photo
A fight for Trinity River water between irrigators in the Central Valley and parties seeking to avoid a repeat of the 2002 massive salmon die-off in the lower Klamath River was not resolved after the first day of court hearings Wednesday.

Salmon advocates say there is little time for delay on the water release before the bulk of the fall chinook run enters the Klamath, meeting a low flow with high temperatures. Irrigators argue that they are legally entitled to the Trinity water and the one-time fish kill in 2002 is not enough information to predict a repeat. 

During a drought year with the second-largest return of chinook salmon predicted since 1978, the Bureau of Reclamation planned to release thousands of acre-feet of water from the Trinity River’s Lewiston Dam to avoid a repeat of the 2002 event, when disease quickly spread and killed tens of thousands of salmon crowded in pools in the lower Klamath.

 

On the day of the planned Trinity water release, the gush was blocked by a federal judge when Central Valley irrigators (the Westlands Water District and San Luis & Delta-Mendota Water Authority) secured a temporary restraining order in the U.S. District Court of Fresno, where the irrigators have filed suit against the federal government.

In the days leading up to Wednesday’s hearing, Judge Lawrence J. O’Neill was presented with information that indicated that less water was needed for fish than was first believed: 

The Westlands Water District underestimated the flows at the Klamath mouth, there is already an agreed-upon release of 11,000 acre-feet for Hoopa Valley Tribe ceremonies, and “since we are already 10 days into the flow pulse proposed,  a lot less water will be necessary,” said Glen Spain, Northwest regional director of the Pacific Coast Federation of Fishermen’s Associations, the largest trade organization of commercial fishermen on the West Coast.

“They are arguing over a very small amount of water, and whatever damages they have are looking more and more speculative at best,” said Spain, whose organization is intervening in the case on behalf of the defendant, the federal government.

The new information prompted the judge to instruct the parties to try to reach a resolution early Wednesday before the hearing, but nothing came of it.

‘Understanding science’

There was only time for the defendants to present Wednesday, including the defendant intervenors (the Yurok Tribe, Hoopa Valley Tribe and the Pacific Coast Federation for Fishermen’s Associations). 

The Yurok Tribe presented its two witnesses, current and former fisheries biologists with the Yurok Tribe, whose research shows that a flow of 2,800 cubic feet per second in the lower Klamath River  is sufficient in preventing another fish kill during a year of a projected high salmon return.

“The judge was more interested in understanding the science,” said Nathan Voegeli, staff attorney with the Yurok Tribe, who was in court in Fresno on Wednesday.

A technical memorandum produced by Joshua Strange, who worked as a research biologist for the Yurok Tribe for 10 years, documented why a 2,800 cfs flow is needed to avoid a fish kill.  Strange’s report was even used by the Bureau of Reclamation in its decision to schedule the release of Trinity water in the first place.  

In a letter to the parties involved, the judge’s staff indicated that the bureau’s use of Strange’s research will weigh in the defendants’ favor:

“The Court is legally required to give deference to the agency’s interpretation of the science under most circumstances,” the letter states.

Already working on his dissertation focused on Klamath-Trinity salmon in 2002, Strange was on the river when the fish kill began, becoming a first responder to the mortality.

“Josh’s testimony has been key to this,” Voegeli said.  “He has been able to explain the science.”

The complaint from Central Valley irrigators says that “contractors located south of the Sacramento-San Joaquin Rivers Delta have been allocated only 20 percent of their contract supply” and will “face a growing water shortage catastrophe.” The irrigators argue that the release exceeds the agreed-upon amount of Trinity Water that can be used for fish in the year 2013.

The irrigators will present their case today and the judge is expected to rule from the bench, Spain said.

If the judge rules in favor of the release, Spain said, that the Bureau of Reclamation could turn on the flow of water within an hour.

2002 fish kill

“The smell of rotten fish permeated the air on the Klamath River yesterday,” reads a 2002 Triplicate article on the fish kill. “Their bodies floated in masses along every beach, clogging eddies and appearing white and ghostly below fishing guide Ken Duport’s speeding jet boat.”

The federal government estimated that 34,000 fish died from the event, but the California Department of Fish and Wildlife’s report called that number “conservative”  and said the losses could be more than double that.

Spain said that the Klamath fish kill is what led to severely limited stocks of ocean salmon from 2005 to 2007, causing up to $200 million in losses to coastal communities. A federal disaster was declared in 2006 and $60.4 million was allocated to comercial salmon fishermen in Oregon and California.

“Del Norte County suffered among the worse in the 2006 fishery closure,” Spain said.

The irrigators argue that there have been previous years with low water and high returns of salmon when salmon die-offs have not occurred.

California Fish and Wildlife Scientist Department scientist Wade Sinnen said that predicting a fish kill is far from a perfect science, pointing out that the only data point of a large scale adult fish-kill event was 2002 in the Klamath estuary.

What actually killed the majority of salmon in 2002, based on pathological reports, was freshwater white spot disease, (Ichthyophthirius multifiliis, also commonly known as simply ich)  and columnaris (Flavobacterium columnare).

Ich and columnaris are actually  “ubiquitous pathogens” in the Klamath River, Sinnen said, but ich has not been observed in river-wide fish sampling thus far this year. Columnaris has been observed on fish, however, it appears that has been at the normal background levels and only a few dead adults have been observed in various areas throughout the basin, Sinnen said.

Sinnen said that ich and columnaris could start spreading quickly if conditions are right. The diseases multiply much quicker in high-water temperatures.

The Yurok Tribe’s biologists also addressed the science and need for emergency flows should any disease be detected, Voegeli said.

“We are committed to doing whatever is necessary to protect the Klamath River and Klamath fish,” Voegeli said.

In 2002, salmon were crowded in the river’s cold pools, probably to avoid the warmer water in the river. The crowding helped ich transmit much quicker from fish to fish, Sinnen said.

The Trinity River, the largest tributary to the Klamath, is the only water source outside of the Sacramento-San Joaquin Basin that is used to supplement water to farmers in the Central Valley.  Before recent restoration projects were implemented, up to 90 percent of water in the Trinity basin was diverted to the Central Valley.

Reach Adam Spencer at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it  

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