Earlier this week, the 9th Circuit found that the Bureau of Reclamation had authority under 1955 legislation to order additional releases of water to the Trinity River from the Lewiston Dam beyond the amount designated in an official release schedule, where necessary to protect downstream fish populations. The Court basically held that general language in the 1955 Act trumped later legislation that seemed to prescribe or at least authorize more limited releases.
The 1955 Act was intended to make more water available to the famous – or infamous – Central Valley Project. It was based on findings by the Department of Interior that much more water could be provided to the CPV without harming fish resources. Notwithstanding that conclusion, Congress wrote into the act general protection of fisheries:
Subject to the provisions of this Act, the operation of the Trinity River division shall be integrated and coordinated, from both a financial and an operational standpoint, with the operation of other features of the Central Valley project, as presently authorized and as may in the future be authorized by Act of Congress, in such manner as will effectuate the fullest, most beneficial, and most economic utilization of the water resources hereby made available: Provided, That the Secretary is authorized and directed to adopt appropriate measures to insure the preservation and propagation of fish and wildlife.
The Court, rightly, I think, concluded that this unambiguously gave BOR the authority it needed to order the releases. As the Court noted,
Congress wanted to, and thought it could, maintain the rivers and their fish populations below the TRD while diverting substantial inflow to the Sacramento River. However, Congress was not sure what these effects would be. So, to account for unintended consequences, Congress used general language, with no geographic limitation, to empower the Secretary to take any measures it found necessary to preserve all fish and wildlife.
In short, there is a reason why Congress writes in broad terms and delegates details to those hated bureaucrats. Such delegation allows for do-overs, such as what we saw in this case, without the need for additional legislation. All of which is the perfect segue to my next point.
I am a generally a technological optimist. (For example, I still think we can address climate change.) As the Court told the tale,
Reports suggested that only 120,500 acre-feet of water were needed to maintain the fishery resources of the Trinity and Lewiston Rivers. These reports also suggested that the construction of dams on the Trinity would actually help the fishery resources. Congress ultimately concluded that 700,000 acre-feet of the Trinity’s annual flow was being lost to the Pacific Ocean and could be diverted to the Central Valley without harming the Trinity or lower Klamath Rivers.
The dams were built and the diversions to the CPV were made and, lo and behold,
The construction and operation of the TRD had devastating effects on the Trinity River environment and fish populations.
Optimism is one thing, but, as Congress recognized in 1955, hubris is another.