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Tribe v. U.S. Bureau of Reclamation

United States District Court, N.D. California, San Francisco Division

March 24, 2017

HOOPA VALLEY TRIBE, Plaintiff,
v.
U.S. BUREAU OF RECLAMATION, et al., Defendants, and KLAMATH WATER USERS ASSOCIATION, et al., Defendant-Intervenors.

          ORDER MODIFYING FEBRUARY 8, 2017 INJUNCTION

          HON. WILLIAM H. ORRICK United States District Judge.

         For the reasons stated in the Court's February 8, 2017 Order (Dckt. No. 102), the Court hereby enters the following injunction, [1] modifying page 53, lines 5-22, of that Order:

         1. Until such time as the formal consultation, recently initiated by the federal defendants, is completed, the Bureau is ordered to require two types of flows: (1) winter-spring flushing flows modeled on Management Guidance 1 and 2 designed to dislodge and flush out polychaete worms that host Ceratanova shasta (C. shasta) and (2) emergency dilution flows modeled on Management Guidance 4, in Measures to Reduce Ceratanova Shasta Infection of Klamath River Salmonids: A Guidance Document (Jan. 17, 2017) (“Guidance Document”) (Dckt. No. 96-4). The parameters of these required flows are described below. Subject to the timeframes described in Management Guidance ##1, 2, and 4, the timing of the releases of water is left to the Bureau's discretion.

         2. In all other respects, the 2013 Biological Opinion on Klamath Project Operations (“2013 BiOp”) and incidental take statement remain in effect pending completion of the reinitiated formal consultation.

         3. In no event shall the mitigation measures interfere with conditions necessary to protect the endangered sucker fish.

         I. Winter-Spring Surface Flushing Flows and Deep Flushing Flows

         a. 2017

         4. As of the date of this injunction, the Parties[2] have agreed that surface flushing flows consistent with Management Guidance #1 and that the spirit and intent, although not the specific desired magnitude, of deep flushing flows modeled on Management Guidance #2 were met twice during February 2017 flow events.

         5. If sufficient hydrologic conditions exist, and increased downstream flows would not interfere with the conditions necessary to protect endangered Lost River and shortnose suckers or negatively impact water available for the implementation of emergency dilution flows, the Bureau shall make another attempt to implement a deep flushing flow modeled on Management Guidance #2 within the inherent infrastructure limitations and public safety constraints (e.g., Link River Dam release capacity, flooding concerns, etc.).

         b. Subsequent Years

         6. Until the reinitiated formal consultation is complete, the Bureau shall release surface flushing flows modeled on Management Guidance #1 in every year.

         7. Until the reinitiated formal consultation is complete, the Bureau shall release deep flushing flows modeled on Management Guidance #2 in at least every other year (beginning in 2017) unless the Bureau determines that such flows are limited and/or precluded by inherent hydrologic, infrastructure, and/or public safety constraints.

         8. Subject to the timeframes described in Management Guidance #1 and Management Guidance #2, the timing of any such releases of water is left to the Bureau's discretion; however, the Bureau shall coordinate with the Parties regarding the timing and magnitude of these flows. Notwithstanding the Bureau's coordination with the Parties, the Bureau shall retain ultimate decision making authority as the action agency, subject to the requirements of paragraphs 6 and 7 of this Order.

         9. When surface and deep flushing flow releases occur after March 1, the Bureau shall account for such volume of water that is above and beyond what would have otherwise been released under the 2013 BiOp formulaic distribution in a manner that is not attributed towards the Environmental Water Account (“EWA”). When surface and deep flushing flow releases occur prior to March 1, the Bureau shall account for such volume of water that is above and beyond releases that ...


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