Wednesday, July 25, 2012

Governor Announces Preferred Water Conveyance Alternative For Bay Delta Conservation Plan

On July 25, 2012, California Governor Edmund G. Brown Jr., Secretary of the Interior Ken Salazar, and National Oceanic and Atmospheric Administration Assistant Administrator for Fisheries Eric Schwaab announced a preferred alternative in the ongoing Bay Delta Conservation Plan (BDCP).

An overview of the preferred alternative is described in the San Jose Mercury News. Under the preferred alternative, two large, side-by-side underground tunnels, each 33 feet in diameter, would transport fresh water 37 miles from the Sacramento River, under the Sacramento-San Joaquin River Delta (Delta), to federal and state pumps at Tracy. Then, the water would flow into canals operated by the State Water Project and the Central Valley Project from the Bay Area to San Diego, to irrigate three million acres of farmland. The tunnels would cost an estimated $14 billion to build, and would be financed by farmers and other water users that stand to benefit from the project. The preferred alternative also focuses on restoring the Delta.

The preferred alternative’s conveyance facilities would rely on gravity flow to increase energy efficiency and decrease environmental impacts. The proposed total capacity of the water intake facilities was reduced from an earlier proposal of 15,000 cubic feet per second (cfs) to 9,000 cfs. Officials explained that the preferred alternative will be designed to help restore endemic species, protect water quality, and enhance the reliability of water supplied from the State Water Project and Central Valley Project.

All officials stressed the Delta’s ongoing problems, such as habitat loss, threats to levee stability, and reduced water supply. They indicated that resolving these issues required a balancing of economic concerns and environmental interests. Underscoring the need for reevaluating California’s current water system, Secretary Salazar stated, “Through our joint federal-state partnership, and with science as our guide, we are taking a comprehensive approach to tackling California’s water problems when it comes to increasing efficiency and improving conservation.” The comprehensive approach unveiled today includes consideration of science, conservation, governance, financing, adaptive management, sustaining Delta communities, protecting upstream water users, and improving water management State-wide.

The details announced today are not final and other alternatives will still be evaluated in the BDCP process. The agencies intend to issue a draft Bay Delta Conservation Plan and Environmental Impact Report/Environmental Impact Statement this fall. Once the proposed project is fully defined, it will be submitted for public comment, and review under the federal Endangered Species Act (ESA), California’s Natural Community Conservation Planning Act (NCCPA), and NEPA/CEQA.

Additional information regarding the proposed revisions to the BDCP is available here.  For further information regarding the BDCP, please contact Hanspeter Walter, Rebecca Akroyd, or Elizabeth Leeper, or the KMTG attorney with whom you normally consult.

(This blog post was drafted by KMTG Summer Associate Jessica Almendarez, with assistance from the blog editors.)

Friday, July 20, 2012

DWR Releases New State Water Project Delivery Reliability Report

The California Department of Water Resources (DWR) has released the final version of the 2011 State Water Project (SWP) Delivery Reliability Report.  The report is the latest in a series of reports that began in 2002, which report the delivery reliability of California's State Water Project, the largest state-built and operated water and power system in the United States.  The SWP provides at least some of the water consumed by 25 million Californians and used to irrigate about 750,000 farmland acres. Of SWP water deliveries, about 70 percent goes to cities and 30 percent to farms.

The newest report updates estimates of current (2011) and future (through 2031) SWP deliveries, taking into account pumping restraints to protect Delta smelt, salmon, and other fish species as well as variations in precipitation and impacts of climate change.  The perspective applied assumes no significant changes will be made to convey water past the Sacramento-San Joaquin Delta or to store the more variable runoff expected with climate change.

Due to increased public interest in pumping water from the Delta, a new chapter focuses specifically on SWP exports at the system's Harvey O. Banks Pumping Plant in the Delta. The report documents that the SWP continues to be subject to delivery reductions caused by fishery agency Biological Opinions intended to safeguard threatened and endangered fish.

While the report is very detailed and includes the results of extensive computer modeling, a few basic conclusions in the executive summary include:
  1. Estimated average annual SWP exports under 2011 conditions are 12% less than the estimates made for 2005 conditions.
  2. Estimated average annual SWP exports decrease 86,000 acre-feet per year (about 3%) between the existing- and future-conditions scenarios.
DWR also states that California's population has grown rapidly in recent years.  From 1990 to 2005, the state's population increased from about 30 million to about 36.5 million. Based on this trend, California's population could exceed 47.5 million by 2020.  By 2050, the population could rise to nearly 60 million -- virtually double the 1990 population -- according to trends cited in the 2009 Update to the California Water Plan.

The final 2011 State Water Project Delivery Reliability Report is available from DWR online here.

If you have any questions concerning this report, please contact Hanspeter Walter or the KMTG attorney with whom you normally consult.

Thursday, July 19, 2012

Chief of DFG Fisheries Branch Identifies Poor Ocean Conditions As Primary Cause Of Recent Central Valley Chinook Salmon Decline

In a recent interview for the Sacramento Bee, Stafford Lehr, fisheries branch chief for the California Department of Fish and Game, stated that the Central Valley fall-run of Chinook salmon is expected to be “very healthy.” The fishing season for Central Valley rivers opened on July 16th for recreational anglers. State and federal officials estimate more than 800,000 adult Central Valley Chinook salmon will make the spawning run this year, a drastic improvement from the historic low of approximately 40,000 salmon in 2009.

Mr. Lehr attributed the increased salmon numbers to improved ocean conditions, stating: “the ocean conditions improved significantly, which increased food availability and adult survival out in the ocean.” When asked what caused the drastic decline in the fall-run Chinook salmon, starting in 2007, Mr. Lehr responded: “Among federal and state fishery managers, there’s consensus that it was ocean conditions—very poor ocean conditions—that did not produce enough food for adult salmon.” He believed that the recent decline in the Central Valley Chinook salmon has been “primarily linked to ocean conditions.”

Poor ocean conditions were identified as “major factors influencing west coast salmon populations” in the 5-year reviews for the threatened Central Valley spring-run and the endangered Sacramento River winter-run, prepared by the National Marine Fisheries Service and released on August 15, 2011. (Spring-run 5-year Review, at p. 25.) The 5-year review for the spring-run stated:
Ocean conditions, such as sea-surface temperatures and upwelling are major factors influencing west coast salmon populations (Wells et al. 2008), including those from the Central Valley (Lindley et al. 2009). As previously discussed, Lindley et al. (2009) found that poor ocean conditions in the spring of 2005 and 2006 led to poor growth and survival of Central Valley juvenile salmon entering the ocean in those years. Upwelling off the California coast was stronger than average in the spring of 2007 and 2008 indicating good ocean conditions for Central Valley spring-run Chinook salmon smolts entering the ocean during those years (Lindley et al. 2009). Since the unusual ocean conditions in 2006, more typical patterns of upwelling and sea-surface temperatures have returned (Williams et al. 2011). The poor ocean conditions in recent years clearly had adverse impacts on the CV spring-run Chinook ESU as discussed previously. 
(Spring-run 5-year Review, at pp. 25-26.)  Similarly, the 5-year review for the endangered winter-run stated:
The last five years has been a period of widespread decline in all Central Valley Chinook salmon stocks including the SR winter-run Chinook salmon ESU. An analysis by Lindley et al. (2009) found that unusual oceanic conditions led to poor growth and survival for juvenile salmon produced in the Central Valley during the spring of 2005 and 2006 and these conditions most likely contributed to the declining abundance of this ESU.
(Winter-run 5-year Review, at p. 30.)

If you have question regarding the Central Valley Chinook salmon, please contact Elizabeth Leeper, or the KMTG attorney with whom you normally consult.

Wednesday, July 18, 2012

Ninth Circuit Court of Appeals Rejects Challenges to 43 Federal Water Contracts

On July 17, 2012 the Ninth Circuit issued an important opinion rejecting challenges to the U.S. Bureau of Reclamation's renewal of 43 water contracts in 2004-2005.  The contracts at issue consisted of two general types - water service contracts in the Delta Mendota Canal Unit of the Central Valley Project and Sacramento River Settlement contracts. 

The case stems back to litigation over a 2005 biological opinion issued by the U.S. Fish and Wildlife Service on the effects of State and Federal water project operations on the threatened delta smelt.  That 2005 BiOp was challenged by environmental groups and ruled invalid by the district court.  In an attempt to ride the wave of that success, the same environmental groups then filed a supplemental complaint challenging the earlier contract renewals by the Bureau as invalid because they had partially incorporated the 2005 BiOp.  The district court rejected these claims because the water service contracts expressly provided and allowed for the Bureau to change CVP operations (including reducing deliveries) in any way required by the ESA, and therefore their execution and existence did not cause any actual harm to the delta smelt.  With respect to the settlement contracts, the district court generally found that the Bureau had no discretion to alter their terms and therefore the ESA consultation provisions did not apply to the renewal of those contracts. 

The Ninth Circuit Court of Appeals affirmed both district court rulings, rejecting challenges to both types of water contracts.  The opinion can be found here.

If you have any questions regarding this decision, please contact, Daniel J. O’HanlonHanspeter Walter, or Rebecca Akroyd.

Oral Argument Scheduled for Ninth Circuit Appeals in the Delta Smelt Consolidated Cases

On July 10, 2012, the United States Court of Appeals for the Ninth Circuit issued a notice of oral argument in the Consolidated Delta Smelt Cases appeals, Ninth Circuit Case Nos. 11-15871, 11-16617, 11-16621, 11-16623, 11-6624, 11-16660, 11-16662, and 11-17143.  The lead appeal is also referred to as San Luis & Delta-Mendota Water Authority, et al. v. Salazar, et al.  Hearing on the appeal will occur September 10, 2012, at 9:00 a.m. in the Lloyd D. George United States Courthouse in Las Vegas, Nevada.  The court will reveal the identity of panel members not earlier than the week before the case will be heard. 

The court will hear oral argument on appeals regarding two decisions from the United States District Court for the Eastern District of California: 1) the district court’s December 14, 2010 Memorandum Decision re Cross Motions for Summary Judgment, and the related May 18, 2011 final judgment, which held that the U.S. Fish and Wildlife Service’s (“FWS”) 2008 delta smelt biological opinion (“BiOp”) and Reasonable and Prudent Alternative (“RPA”) were arbitrary, capricious, and unlawful and remanded the BiOp and RPA to FWS; and 2) the district court’s August 31, 2011 decision that enjoined the federal government from implementing the so-called “Fall X2” measure, which, absent the injunction, would have restricted California’s water supply by hundreds of thousands of acre feet.

Briefing completed in the so-called “Merits Appeal” on May 25, 2012, while briefing completed in the so-called “X2 Appeal” on April 5, 2012.  An order granting the motion to consolidate the Merits Appeal and X2 Appeal, which were separately briefed, for oral argument, was filed on May 25, 2012.  

If you have any questions regarding this announcement, please contact Daniel J. O’Hanlon, Rebecca Akroyd, or Hanspeter Walter, or the KMTG attorney with whom you normally consult.

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Monday, July 9, 2012

Legislature Delays Vote On $11 Billion Water Bond Until 2014

On July 5, 2012 California lawmakers voted to delay voters’ consideration of an $11 billion water bond for another two years, from November 2012 to November 2014.

The California assembly approved AB 1422, sponsored by Democratic Assemblyman Henry Perea, in a vote of 69-6.  The Senate approved the bill on a 34-2 vote.  Although Governor Brown has not yet signed the bill, he is expected to do so.

The Safe, Clean, and Reliable Drinking Water Supply Act, which would authorize the issuance of bonds in the amount of $11.4 billion to finance a safe drinking water and water supply reliability program, was initially scheduled to be put to voters in 2010.  However, in August 2010, former Governor Arnold Schwarzenegger signed legislation delaying it until this year.

If you have any questions about the water bond measure, please contact Rebecca Akroyd from our office, or the KMTG attorney with whom you normally consult.

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