Agreement Signals Start to Historic San Joaquin River Restoration

On September 13, 2006, a historic agreement to restore water flows for salmon in the San Joaquin River below Friant Dam near Fresno while undertaking one of the West’s largest river restoration efforts was announced by the Natural Resources Defense Council (NRDC), Friant Water Users Authority (FWUA) and U.S. Departments of the Interior and Commerce.

The Settlement Agreement ended an 18-year legal dispute over the operation of Friant Dam and resolves longstanding legal claims brought by a coalition of conservation and fishing groups led by NRDC. It provides for substantial river channel improvements and sufficient water flow to sustain a salmon fishery while providing water supply certainty to Friant Division water contractors.

Since Friant Dam became fully operational in the late 1940s, approximately 60 miles of the river have been dried up in most years, eliminating spring-run salmon above the river’s confluence with the Merced River. Environmentalists had argued that this result violated Section 5937 of the California Fish & Game Code, which requires dam owners to release sufficient water to maintain the fish below the dam in good condition. The Friant water users alleged that this state law was preempted by federal law which authorized the water to be diverted for use in the Friant service area. Water from the Friant Division provides irrigation supplies for about 15,000 small family farms, irrigating about one million acres of highly productive land. Friant Division water also supplies six of the Central Valley’s cities, including Fresno.

The Settlement Agreement fully resolves the litigation and does so without impacts to third parties. It is based on two goals and objectives:


1. A restored river with continuous flows to the Sacramento-San Joaquin River Delta and naturally reproducing populations of Chinook salmon.
2. A water management program that provides for the recovery of released water in order to minimize water supply impacts to San Joaquin River water users.

The Settling Parties will work together on a series of projects to improve the river channel in order to restore and maintain healthy salmon populations. Flow restoration is to be coordinated with these channel improvements, with spring- and fall-run Chinook salmon populations reintroduced in approximately six years. At the same time, the Settlement limits water supply impacts to Friant Division long-term water contractors by providing for new water management measures, including the recirculation and recapture of released water and the creation of a “recovered water account,” which are to be undertaken by the U.S. Bureau of Reclamation, the Interior Department agency that administers the Central Valley Project.

The Settlement Agreement provides that long-term Friant Division water service contracts be amended to conform the contracts to the terms of the Settlement. It also includes draft federal legislation authorizing the Departments of the Interior and Commerce to implement the Settlement. On September 27, 2006, negotiators led by U.S. Senator Dianne Feinstein of California reached agreement on the essential terms of the federal legislation that will implement the Settlement. The legislation will be put before Congress for action this fall.

Restoration Goal

The commitment to provide continuous flows in the San Joaquin River to sustain naturally reproducing Chinook salmon and other fish populations in the 153-mile stretch of the river between Friant Dam and the Merced River will require funding and constructing extensive channel and structural improvements in many areas of the river, including some that have been without flows (except for occasional flood releases) for decades.

Water Management Goal

The Settlement also includes provisions to protect water availability for the 15,000 small farms that currently rely on these supplies. The Settlement calls for development of water management solutions to provide these users water supply certainty for the long term, including a flexible combination of recirculation, recapture, reuse, exchange and/or transfer programs. Additional storage, such as groundwater banking and expanded conjunctive use, will also be explored and a recovered water account is created that keeps track of water releases and allows Friant water users to recover water in wet hydrologic conditions.

Phased Approach

Restoring continuous flows to the approximately 60 miles of dry river will take place in a phased manner. Planning, design work and environmental reviews will begin immediately, and interim flows for experimental purposes will start in 2009. As the channel improvements are made, the flows will be increased gradually over the next several years, with salmon being re-introduced by December 31, 2012. The Settlement continues in effect until 2026.

Federal Court Approval and Authorizing Legislation

The parties have filed a joint motion seeking U.S. District Court approval of the Settlement. Concurrently, the parties are seeking congressional approval of legislation authorizing the Secretaries of Interior and Commerce to implement the Settlement.

Implications of the Settlement

The Settlement represents a peaceful, consensus-based end to one of California’s longstanding “water wars.” It shows that , with creative thinking, litigation can be resolved in a manner that respects the interests of all sides. It makes use of the expertise assembled for purposes of trial to develop practical physical solutions that will help the fish and, at the same time, caps water and financial contributions in a manner that provides certainty for water users. Indeed, it includes innovative provisions intended to permit water users to recover, in wet hydrologic conditions, much of the water released for fishery restoration. Thus, the Settlement takes a giant step toward river restoration while, at the same time, providing certainty for water users.

BB&K’s Environmental & Natural Resources attorneys, including Gregory K. Wilkinson, James E. Thompson, Jennifer T. Buckman, and Christopher H. Calfee, have represented the Friant Water Users Authority for many years and spent the last three years litigating the San Joaquin River claims. BB&K’s attorneys were pleased to assist co-counsel Daniel M. Dooley and Friant Chair Kole M. Upton as they negotiated the historic Settlement, and we look forward to working with Friant to implement the Agreement over the next 20 years.

For more details on this Settlement, or its implications on your organization, contact an attorney with BB&K's Environmental Law & Natural Resources Practice Group.

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