Friday, November 30, 2012

Department of Water Resources Announces Initial SWP Allocation for 2013

The California Department of Water Resources has announced an initial allocation of 30 percent of requested deliveries to State Water Project contractors in calendar year 2013.   This is not the final SWP allocation and it is almost certain to increase.  In fact, DWR's initial allocation – or water delivery estimate – is always conservative because it is made early in the storm season.   Because the state normally receives more than 90 percent of its snow and rain from December through April, the initial allocation generally increases as more storms bring rain and snow throughout the season.  A case in point is the series of heavy storms hitting Northern California this week, which should significantly increase water supply estimates.  DWR Director Mark Cowin stated “This week’s storms are giving us an early water supply boost, while at the same time putting our flood center on alert.”  Future postings will alert readers to DWR's updated SWP allocation estimates, which will take account of the water arriving in these storms. 

A copy of DWR's official initial SWP announcement for 2013 can be found by clicking here.

For additional information regarding this post, please contact Hanspeter Walter or the KMTG attorney with whom you normally consult.

Tuesday, November 20, 2012

"Pattern and Practice" Lawsuit Challenges State’s CEQA Compliance in Permitting Fracking

The oil and gas industry’s increased use of hydraulic fracturing or “fracking” continues to gain attention in California.  Several non-profit organizations recently filed a lawsuit against the California Department of Conservation, Division of Oil, Gas and Geothermal Resources (“DOGGR”) seeking declaratory relief that the Department is violating the California Environmental Quality Act (“CEQA”) in the permitting of oil and gas wells, by failing to consider the environmental impacts of oil and gas development, including the effects of fracking. (Center for Biological Diversity et. al. v. Cal. Dept. of Conservation, Div. of Oil, Gas and Geothermal Resources [Super. Ct. Alameda County, Case No. RG12652054].) The complaint also seeks injunctive relief, to enjoin DOGGR from approving any further permits for oil and gas wells where fracking may occur.

Rather than challenge any specific permit, the complaint raises a fairly novel "pattern and practice" claim, alleging that over a dozen of DOGGR's past permitting actions violated the mandates of CEQA. However, the complaint admits DOGGR prepared and filed CEQA Notices of Exemption or Negative Declarations for each such permit. The normal method to challenge CEQA compliance for any of these actions would have been for these groups to file suit 30 or 35 days after DOGGR took the permitting action and filed notice of such. Accordingly, another reason this case bears watching is to see how this novel "pattern and practice" claim is resolved.

By stipulation, the parties agreed to an extension of the time for DOGGR to respond to the complaint. The DOGGR now has until December 17, 2012, to respond to the complaint.

For additional information regarding this case, visit the court’s website, then enter case number RG12652054 under the "Case Summary" page.

Friday, November 16, 2012

KMTG Will Host MCLE Presentation By Delta Watermaster

On Friday, December 14, from 12 p.m. to 1 p.m. (pacific time), Kronick Moskovitz Tiedemann & Girard (KMTG) will be hosting a brown-bag lunch MCLE event, entitled "What is the Delta Watermaster's Role in Addressing California's Water Issues? Learn the Answers from the Delta Watermaster Himself, Craig Wilson."

In 2009, the California State Legislature passed major water reform legislation. Among other things, that legislation created the position of Delta Watermaster. The Legislature's intent in creating the Delta Watermaster is hotly debated. Some say it was to crack down on allegedly illegal water diversions in the Delta. Others say the position’s focus on Delta water diversions simply distracts attention from other causes of decline in the Delta ecosystem. The purpose of this program is to hear from the Delta Watermaster, Craig Wilson, about the activities undertaken in the two-plus years since the position was created and about planned future activities. These activities range from compliance and enforcement actions, investigations of water use, and preparation of policy level reports on key water issues.

The event is sponsored by the Environmental Law Section and Natural Resources Subsection of the Real Propery Section of the California State Bar.  The event may be attended at the KMTG Sacramento office or by webinar.  Attendees are eligible for 1.0 MCLE credit.  The event will be moderated by Rebecca Akroyd of KMTG.

To register for the webinar, please visit the State Bar's website.

To attend in-person, at the KMTG Sacramento Office (400 Capitol Mall, 27th Floor, Sacramento, CA 95814), please e-mail Lindsey Ono at

For additional information regarding this event, please contact Lindsey Ono or Rebecca Akroyd.

Friday, November 9, 2012

Appellate Court Holds That Regional Water Quality Control Board Approval Of Discharge Permit For Dairies Fails To Satisfy Anti-degradation Policy

In a decision filed on November 6, 2012, the Third District Court of Appeal held that the Central Valley Regional Water Quality Control Board (“Regional Water Board”) failed to comply with the State’s anti-degradation policy in issuing a waste discharge order regulating approximately 1,600 dairies.  In Asociacion de Gente Unida Agua v. Central Valley Regional Water Quality Control Board (Case No. C066410), the court held that the State’s anti-degradation policy (State Water Resources Control Board Resolution No. 68-16) applied to the waste discharge order (“Order”), because it allowed ongoing dairy discharges that might degrade high quality groundwater.  Although the Order made certain findings with respect to anti-degradation policy compliance, the court held that such findings were not supported by substantial evidence in the administrative record.  The court also held that the record failed to demonstrate that the Order would require the dairies to carry out the “best practicable treatment or control” required by the anti-degradation policy.

The appellate court remanded to the trial court with directions to grant the petition for writ of mandate and to issue a writ requiring the Regional Water Board to comply with the State’s anti-degradation policy.

For more information regarding this court decision, please contact Eric Robinson or Elizabeth Leeper or the KMTG attorney with whom you normally consult.

Wednesday, November 7, 2012

Yuba County Water Agency Gives 60-Day Notice of Intent to Sue Federal Government Under Endangered Species Act

The Yuba County Water Agency ("YCWA") today delivered a 60-day notice of intent to sue to the National Marine Fisheries Service ("NMFS"), also known as NOAA Fisheries, and the U.S. Army Corps of Engineers ("Corps").  The letter declares that these agencies have violated the Endangered Species Act ("ESA"), the Administrative Procedure Act ("APA"), and the National Environmental Policy Act ("NEPA").  The violations stem from the issuance and intended implementation of a 2012 biological opinion for the operation and maintenance of Englebright Dam and Reservoir and Daguerre Point Dam on the Yuba River. 

ESA issues on the Yuba River have been brewing for several years and have apparently reached a boil.  An earlier 2007 biological opinion issued by NMFS concluded that the operations of Englebright and Daguerre dams would not jeopardize the Central Valley spring-run Chinook salmon, Central Valley steelhead, and southern distinct population segment of the North American green sturgeon.  The 2007 BiOp was challenged as insufficiently protective by environmental groups.   In July 2010, the United States District Court for the Eastern District of California (J. Karlton) ruled that NMFS had not supported its conclusions and invalidated the 2007 BiOp, sending NMFS back to the drawing board to prepare a new one.  (South Yuba River Citizens League v. NMFS, 723 F.Supp.2d 1247) 

NMFS issued the new BiOp in February of 2012.   In the 2012 BiOp, NMFS reversed course and concluded that the proposed operations of Englebright and Daguerre would jeopardize the listed species and adversely modify their critical habitat.  Consequently, to comply with the ESA, the 2012 BiOp imposed requirements known in ESA parlance as reasonable and prudent alternatives ("RPA"), ostensibly to offset the jeopardizing effects of the action.  The RPA was extensive.  A separate press release and Frequently Asked Questions pamphlet distributed by YCWA indicate that the cost of implementing the RPA could be as high as $1 billion.  YCWA's press release and letter also fault NMFS for failing to adequately involve affected water users on the Yuba River and the Corps in the ESA consultation.

YCWA's 60-day notice letter states that the 2012 biological opinion's fundamental flaw is that it treats as effects of the proposed action numerous conditions and factors that are actually part of the environmental baseline.  Under the ESA regulations, an action agency may be held accountable only for effects caused by the discretionary portions of its proposed action.  Effects of the action therefore, do not include non-discretionary actions the agency must take because of prior legal, contractual, or other requirements.  Effects of the action also can not include the effects of other factors or actions that are not caused by agency's proposed action.  For example, the existence of a dam authorized by Congress and constructed years before the ESA was passed may impede salmonid passage upstream, but the existence of the dam and the effects of its existence (e.g., foreclosing access to upstream spawning grounds) are not effects of the action. 

The ESA requires that a 60-day notice be delivered to the agencies prior to filing a citizen suit to enable the agencies to remedy their violations without court intervention.  In its press release, however, YCWA indicates that it still seeks and hopes to cooperatively work with NMFS and the Corps to resolve these issues outside of the courthouse.  Time will tell if such efforts are fruitful.

YCWA's letter, press release, and FAQ can be viewed by clicking the following links:

60-day notice letter

YCWA press release


For additional information regarding this post, please contact Hanspeter Walter or the KMTG attorney with whom you normally consult.