Ninth Circuit Denies Petition for Rehearing of Area of Origin Decision

On October 15, 2013, the Ninth Circuit Court of Appeals issued an order denying the Petition for Rehearing filed by Tehama-Colusa Canal Authority (“TCCA”), which requested rehearing or rehearing en banc of the Ninth Circuit’s opinion in the case of Tehama-Colusa Canal Authority v. U.S. Dept. of the Interior, et al., Case No. 11-17199.

In its July 1, 2013 opinion, the Ninth Circuit rejected TCCA’s claim that California area of origin law entitled TCCA’s member districts to priority deliveries of Central Valley Project (“CVP”) water from the Bureau of Reclamation (“Bureau”). The court ruled that California area of origin laws, in particular Water Code section 11460, do not require the Bureau to prioritize the allocation of Federally-appropriated CVP water to Sacramento Valley CVP contractors. 

TCCA may still file a petition for a writ of certiorari seeking review of the Ninth Circuit’s opinion by the Supreme Court. 

Related Posts:

• Ninth Circuit Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority 
• District Court Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority
• Tehama-Colusa Canal Authority Appeals Area of Origin Decision
• KMTG Legal Alert: Sacramento Valley Farmers Have No Prior Right To Central Valley Project Water Under Area Of Origin Laws

Reminder: KMTG Will Host Presentation By Delta Watermaster This Friday

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 lono@kmtg.com

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

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 lono@kmtg.com

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

Oral Argument Scheduled For Ninth Circuit Appeals in Three Cases Involving the Central Valley Project

On October 9, 2012, the United States Court of Appeals for the Ninth Circuit issued a notice of oral argument in three cases involving the Central Valley Project and water rights.  The Ninth Circuit will hear argument in the cases of San Luis Unit Food Producers v. USA, Ninth Circuit Case No. 11-16122, Tehama-Colusa Canal Authority v. U.S. Department of the Interior, Ninth Circuit Case No. 11-17199, and Firebaugh Canal Water District v. USA, Ninth Circuit Case No. 11-17715, on December 5, 2012, at 9:00 a.m. in the James R. Browning United States Courthouse in San Francisco, California.  The court will reveal the identity of panel members not earlier than the week before the case will be heard.

In San Luis Unit Food Producers v. USA, the United States District Court for the Eastern District of California ruled that plaintiffs in the case lacked standing to sue the Department of the Interior.  Plaintiffs had alleged the government violated reclamation law by unlawfully withholding water for environmental purposes.  Briefing in the San Luis Unit Food Producers appeal completed on October 25, 2011. 

In Tehama-Colusa Canal Authority v. U.S. Department of the Interior, the Tehama-Colusa Canal Authority (“TCCA”) challenges the United States District Court for the Eastern District of California’s ruling that water users in the Sacramento Valley have no preferential right to deliver of Central Valley Project under California’s so-called “area of origin” laws.  Briefing in the TCCA appeal completed on July 2, 2012. 

Lastly, in Firebaugh Canal Water District v. USA, the issue on appeal is whether the San Luis Act imposes a clear legal duty on the Federal government to provide drainage for lands located outside the boundaries of the San Luis Unit of the Central Valley Project.  The origins of the litigation date back to 1988 and this appeal challenges the United States District Court for the Eastern District of California's ruling that the Federal government's interpretation of the San Luis Act, as imposing no mandatory duty to provide drainage service outside the San Luis Unit, is a reasonable and lawful interpretation, entitled to deference.  Briefing in the Firebaugh appeal completed on July 30, 2012.    

In each of the three appeals, the parties for each side are given twenty minutes for argument.

Related Stories:

• Tehama-Colusa Canal Authority Appeals Area of Origin Decision
• KMTG Legal Alert: Sacramento Valley Farmers Have No Prior Right to Central Valley Project Water under Area of Origin Laws
• District Court Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority

Judge Declares Russian River Frost Protection Regulation Constitutionally Void

On September 26^th, 2012, a Mendocino County Superior Court judge declared the Russian River frost protection regulation adopted by the State Water Resources Control Board ("State Water Board") in 2009 to be constitutionally void.  In the consolidated actions of Light v. State Water Resources Control Board and Russian River Water Users For The Environment v. State Water Resources Control Board (Case No. SCUK-CVG-11-59127), Judge Ann Moorman issued an order invalidating the frost protection regulation on several grounds.

The invalidated frost protection regulation declared the use of water within the Russian River watershed for frost protection purposes to be an unreasonable use of water, unless such use of water is in accordance with a water demand management program, approved by the State Water Board.  Water use for frost protection is a recognized beneficial use of water under California law, and Judge Moorman found that sprinklers are the only effective method available to Russian River farmers and vineyard owners to protect against certain frost events, known as advective frosts.   The regulation sought to limit water use for frost protection, based on concerns regarding impacts to fish from rapid decreases in river levels that can occur when there is a spike in such water use during frost events.  In reviewing the administrative record for the regulation, Judge Moorman found that the regulation was largely a response to an unprecedented set of circumstances in the Spring of 2008, which led to an instantaneous draw-down of Russian River water levels and two reports of stranding of young salmonid fish. 

The court concluded that the State Water Board exceeded its regulatory jurisdiction in adopting a regulation that declared water use for frost protection to be a per se unreasonable use of water.  Judge Moorman emphasized that the policy declaration of “reasonable use” in Article X, section 2 of the California Constitution is both a limit on water rights, and a protection of water rights.  The court concluded that the frost protection regulation was constitutionally void because the State Water Board failed to examine or make findings regarding each riparian and pre-1914 water right holder’s individual water use, and instead enacted a blanket regulation that treated all water users the same.  Judge Moorman concluded that the law clearly requires the State Water Board to make specific findings regarding water use by riparian, overlying, and pre-1914 water right holders before extinguishing their right to use water.

In addition, the court concluded it was improper for the State Water Board to make a sweeping determination that water use for frost protection was unreasonable and the Board’s failure to make findings regarding individual water use and the correlative risk to salmonids provided a separate ground for invalidating the regulation.

The judge also concluded that the regulation was invalid because it failed to provide for enforcement of the rule of priority for California water rights and also because it improperly delegated State Water Board functions to private boards established under the regulation.  Finally, the judge concluded that the State Water Board’s determination that the regulation was reasonably necessary was not supported by substantial evidence.

For additional information regarding the frost protection regulation and related litigation, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.

Related Stories:

Judge Stays Enforcement of Russian River Frost Control Regulation

KMTG Legal Alert: Frost Protection Water Use in Russian River Watershed, Even by Groundwater Pumpers, Now Conditional on SWRCB Approval of a Water Demand Management Program

State Water Resources Control Board Adopts Russian River Frost Protection Regulation

On Tuesday, September 20, 2011, the State Water Resources Control Board adopted a new regulation governing the diversion of water for frost protection in the Russian River stream system.  Under the regulation, any diversion of water, or pumping of hydraulically connected groundwater, within the Russian River system for frost protection purposes from March 15 through May 15 must be done in accordance with a Board-approved water demand management program (WDMP).  Diversions upstream of Coyote Dam or Warm Springs Dam are exempt from this requirement.  The regulation is codified as Section 862 of Division 3 of Title 23 of the California Code of Regulations.  A copy is available here.

The first WDMPs must be submitted to the State Water Board by February 1, 2012.  Any amendments are due by February 1 prior to each frost season.

The regulation states that the purpose of the WDMP is to "assess the extent to which diversions for frost protection affect stream stage and manage diversions to prevent cumulative diversions for frost protection from causing a reduction in stream stage that causes stranding mortality" of fish.  Each WDMP must include, at a minimum "(1) an inventory of frost diversion system in the area covered by the plan, (2) a stream stage monitoring program, (3) an assessment of the potential risk of stranding mortality due to frost diversions, (4) the identification and timelines for implementation of any corrective actions necessary to prevent stranding mortality caused by frost diversions, and (5) annual reporting of program data, activities, and results."

While individual diverters are not required to join a larger WDMP, the regulation appears to contemplate that multiple diverters will join together and adopt plans administered by a governing body.  However, each diverter must have a plan, whether individually or as part of a group.  Failure to adopt and submit a WDMP, or failure to implement the WDMP, particularly any corrective actions, could subject the diverter to State Water Board enforcement action.

If you have any questions concerning this regulation, please contact Andrew Tauriainen, or the KMTG attorney with whom you normally consult.