On August 14, 2013, the U.S. District Court for the Eastern District of California extended a modified temporary restraining order (“TRO”) prohibiting excess releases of stored water into the Trinity River from the Central Valley Project's ("CVP") Trinity River Division.
Citing likely violations of the Central Valley Project Improvement Act's Trinity River Restoration Program Record of Decision ("TRROD") and the National Environmental Policy Act, the court extended the TRO to August 23 after finding “that Plaintiffs have demonstrated a likelihood of success on the merits and the possibility of irreparable harm that is not clearly outweighed by the equities on the other side."
Some 453,000 acre-feet of CVP water is already being released from the Trinity River Division in 2013 for the benefit of fall-run Chinook salmon in the Trinity River system pursuant to the TRROD. The court extended the TRO despite opposition from the Hoopa Valley and Yurok Tribes, the Pacific Coast Federation of Fishermen's Associations and federal government contending that the excess CVP storage releases may prevent a possible disease outbreak that could affect Chinook salmon in the lower Klamath River.
The TRO prohibits the Bureau of Reclamation (“Reclamation”) from releasing into the Trinity River up to 109,000 acre-feet of water from storage in the federal CVP's Trinity and Lewiston reservoirs, pending an expedited hearing in which Federal Defendants are ordered to show cause why the modified TRO should not be converted to a preliminary injunction.
In the modified TRO, the court acknowledges the potential economic and environmental harms to Plaintiffs if the water releases go forward, while acknowledging questions about “whether these augmentation flows are truly necessary to prevent fish kills like that experienced in 2002.”
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Showing posts with label San Luis and Delta-Mendota Water Authority. Show all posts
Showing posts with label San Luis and Delta-Mendota Water Authority. Show all posts
Friday, August 16, 2013
Tuesday, August 13, 2013
Temporary Restraining Order Granted in Lawsuit Challenging the Bureau of Reclamation's Planned August and September 2013 Supplemental Releases from Lewiston Dam
On August 13, 2013, the U.S. District Court for the Eastern District of California issued a temporary restraining order ("TRO") prohibiting the Bureau of Reclamation ("Reclamation") from releasing into the Trinity River up to 109,000 acre-feet of water from storage in the federal Central Valley Project's ("CVP") Trinity and Lewiston reservoirs between August 13 and September 30, 2013.
The TRO follows the filing of a Complaint on August 7, 2013, by the San Luis & Delta-Mendota Water Authority and Westlands Water District (“Plaintiffs”) challenging the Reclamation’s decision to make Trinity River storage releases above and beyond the existing 453,000 acre-feet of releases dedicated to fall-run Chinook salmon fishery restoration and maintenance in 2013.
The TRO follows the filing of a Complaint on August 7, 2013, by the San Luis & Delta-Mendota Water Authority and Westlands Water District (“Plaintiffs”) challenging the Reclamation’s decision to make Trinity River storage releases above and beyond the existing 453,000 acre-feet of releases dedicated to fall-run Chinook salmon fishery restoration and maintenance in 2013.
Reclamation had described the
additional 109,000 acre-feet of excess releases as needed for fall-run Chinook
salmon located below the confluence of the Trinity River and Klamath River
(i.e., lower Klamath River). The TRO cites the Complaint's argument that a year
2000 federal Record of Decision already dedicates 453,000 acre-feet of CVP water
from Trinity Reservoir for restoration and maintenance of fall-run Chinook salmon this year, and that Reclamation could have used that water to
provide the late summer flows at issue in the litigation. The TRO also cites
the Complaint's argument that Reclamation decided to make the excess late summer
CVP storage release without analyzing and disclosing resulting impacts to CVP
water users under the National Environmental Policy
Act.
The TRO enjoins Reclamation “from
making releases from Lewiston Dam to the Trinity
River in excess of 450 cubic feet per second (‘cfs’) for fishery
purposes through and including August 16, 2013.” The short duration of the restraining order
is designed to allow Plaintiffs to file reply papers and will afford the court
an opportunity to perform a more detailed analysis of the
issues.
The TRO was issued despite
opposition by federal defendants and defendant-intervenors (Hoopa Valley
Tribe, Pacific Coast Federation of Fishermen’s Associations, and Institute for
Fisheries Resources).
Wednesday, July 18, 2012
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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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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Thursday, August 4, 2011
KMTG Legal Alert: Sacramento Valley Farmers Have No Prior Right To Central Valley Project Water Under Area Of Origin Laws
Water users in the Sacramento Valley have no preferential right to delivery of Central Valley Project (“CVP”) water under the state’s so-called “area of origin” laws, according to the U.S. District Court in Fresno. The “area of origin” laws allow water users within an area where water originates to apply for new diversions, and to obtain priority for such diversions ahead of already existing diversions for export uses by the CVP and the State Water Project. However, this protection does not grant CVP contractors in the area of origin a right to a preferential allocation of water diverted and stored by the CVP. Instead, the Court ruled, the only preference granted by the area of origin laws applies when users in the area of origin seek a separate water right permit from the State Water Resources Control Board (“SWRCB”).
The August 2 summary judgment ruling rejects the claims of CVP contractors in the Sacramento Valley seeking higher deliveries of CVP water as against other CVP contractors in the San Joaquin Valley and San Francisco Bay Area. The Tehama Colusa Canal Authority (“TCCA”) initiated the litigation during the recent drought, during which the U.S. Bureau of Reclamation (“Bureau”) had reduced CVP water deliveries to much of the Sacramento and San Joaquin valleys. TCCA operates facilities delivering CVP water to 16 local water districts with CVP water service contracts, all of which serve primarily agricultural and some municipal users in the Sacramento Valley. TCCA claimed that reduced CVP water allocations to its members in times of water shortage, while still delivering CVP water to users in export areas, violated the area of origin protections. TCCA sought to establish an area of origin priority to CVP contract deliveries pursuant to California Water Code section 11460 et seq. By seeking a special priority to CVP contract water deliveries, TCCA’s suit threatened further reductions in CVP water deliveries to San Joaquin Valley and Bay Area users, particularly during droughts. Westlands Water District and the San Luis & Delta-Mendota Water Authority intervened in the litigation on behalf of the federal defendants.
The Court’s decision affirms the Bureau’s long-standing application of the area of origin laws. The Bureau has long recognized that these laws protect a priority for new diversions by users within the area of origin over diversions by the CVP, but the Bureau has further consistently maintained that these laws create no priority among CVP contractors to allocation of CVP water supplies. The ruling confirms the Bureau’s position that Sacramento Valley water service contractors have no priority to CVP supplies over CVP contractors located south of the Delta.
The Court’s 87-page ruling rejects all of TCCA’s claims and arguments and provides the most extensive analysis to date of the application of California’s area of origin laws to a federal water project. The Court’s ruling includes three major conclusions: (1) that the relevant federal and state statutes grant no priority to use of CVP water to TCCA’s members; (2) that TCCA’s claims for preference are contrary to the terms of the CVP water service contracts signed in 2005; and (3) that state court judgments pursuant to validation statutes and the doctrine of equitable estoppel barred the claims. Thus, the Court rejected TCCA’s claims on multiple grounds.
For a detailed discussion of the facts of this case, and the rationale behind the court's ruling, please see the full KMTG Legal Alert here. The court's opinion may be found here.
If you have any questions concerning this topic, please contact Daniel J. O'Hanlon, Hanspeter Walter, or Rebecca R. Akroyd from our office, or the KMTG attorney with whom you normally consult.
Related story: District Court Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority
The August 2 summary judgment ruling rejects the claims of CVP contractors in the Sacramento Valley seeking higher deliveries of CVP water as against other CVP contractors in the San Joaquin Valley and San Francisco Bay Area. The Tehama Colusa Canal Authority (“TCCA”) initiated the litigation during the recent drought, during which the U.S. Bureau of Reclamation (“Bureau”) had reduced CVP water deliveries to much of the Sacramento and San Joaquin valleys. TCCA operates facilities delivering CVP water to 16 local water districts with CVP water service contracts, all of which serve primarily agricultural and some municipal users in the Sacramento Valley. TCCA claimed that reduced CVP water allocations to its members in times of water shortage, while still delivering CVP water to users in export areas, violated the area of origin protections. TCCA sought to establish an area of origin priority to CVP contract deliveries pursuant to California Water Code section 11460 et seq. By seeking a special priority to CVP contract water deliveries, TCCA’s suit threatened further reductions in CVP water deliveries to San Joaquin Valley and Bay Area users, particularly during droughts. Westlands Water District and the San Luis & Delta-Mendota Water Authority intervened in the litigation on behalf of the federal defendants.
The Court’s decision affirms the Bureau’s long-standing application of the area of origin laws. The Bureau has long recognized that these laws protect a priority for new diversions by users within the area of origin over diversions by the CVP, but the Bureau has further consistently maintained that these laws create no priority among CVP contractors to allocation of CVP water supplies. The ruling confirms the Bureau’s position that Sacramento Valley water service contractors have no priority to CVP supplies over CVP contractors located south of the Delta.
The Court’s 87-page ruling rejects all of TCCA’s claims and arguments and provides the most extensive analysis to date of the application of California’s area of origin laws to a federal water project. The Court’s ruling includes three major conclusions: (1) that the relevant federal and state statutes grant no priority to use of CVP water to TCCA’s members; (2) that TCCA’s claims for preference are contrary to the terms of the CVP water service contracts signed in 2005; and (3) that state court judgments pursuant to validation statutes and the doctrine of equitable estoppel barred the claims. Thus, the Court rejected TCCA’s claims on multiple grounds.
For a detailed discussion of the facts of this case, and the rationale behind the court's ruling, please see the full KMTG Legal Alert here. The court's opinion may be found here.
If you have any questions concerning this topic, please contact Daniel J. O'Hanlon, Hanspeter Walter, or Rebecca R. Akroyd from our office, or the KMTG attorney with whom you normally consult.
Related story: District Court Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority
Monday, August 1, 2011
District Court Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority
On July 29, 2011, the United States District Court for the Eastern District of California issued a memorandum decision rejecting assertions by the Tehama-Colusa Canal Authority that California area of origin law entitled its member districts to priority deliveries of Central Valley Project water and that the Bureau of Reclamation acted in violation of law by delivering less than 100% of contract amounts during contractual "Conditions of Shortage."
In an almost 90-page decision by Honorable Judge Oliver Wanger, the court denied the Tehama-Colusa Canal Authority's motion for summary judgment and granted Federal Defendants' and Defendant-Intervenors San Luis & Delta-Mendota Water Authority and Westlands Water District's cross-motions for summary judgment. SLDMWA and Westlands are represented by KMTG in this case.
The district court's opinion in the case, Tehama-Colusa Canal Authority v. U.S.
If you have any questions concerning this topic, please contact Rebecca R. Akroyd from our office, or the KMTG attorney with whom you normally consult.
If you have any questions concerning this topic, please contact Rebecca R. Akroyd from our office, or the KMTG attorney with whom you normally consult.
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