Department of Water Resources Announces 5% Initial Allocation for 2014

California's Department of Water Resources announced yesterday an initial 5% allocation of requested deliveries of Table A water to State Water Project contractors for 2014. 

This initial allocation for the 2014 water year is a significant decrease over last year's initial allocation of 30%, made in November 2012.  With the low rainfall and snowpack that followed, 2013’s final allocation only reached 35% of requests.  In contrast, the final allocations for 2012, 2011, 2010, and 2009 were 65%, 80%, 50%, and 40%, respectively.  The last 100 percent allocation was in 2006.

“We hope things improve with this winter’s storms, said DWR Director Mark Cowin in a Press Release, “but there is no guarantee that 2014 won’t be our third consecutive dry year.  Today’s allocation is a stark reminder that California’s fickle weather demands that we make year-round conservation a way of life.”

Low storage levels in the state’s major reservoirs are largely responsible for the low initial SWP allocation.  Lake Oroville in Butte County is at 41 percent of capacity (66 percent of its historical average for the date).  Lake Shasta north of Redding is at 37 percent of capacity (61 percent of average).  San Luis Reservoir in Merced County is at 25 percent of capacity (42 percent of average). 

A copy of DWR’s November 20 press release may be found here, and the notice to State Water Project contractors may be found here. 

California Department of Conservation Issues Notice of Proposed Regulations Regarding Hydraulic Fracturing

On November 15, 2013 the California Department of Conservation issued notice of proposed regulations regarding the use of well stimulation in oil and gas production. Well stimulation is a short term and non-continual process designed to enhance oil and gas production or recovery, and includes hydraulic fracturing, which is sometimes referred to as "fracking." Hydraulic fracturing is the high-pressure injection of a mix of fluids and proppants, used to fracture the rock of oil or gas reservoirs.   

The proposed regulations require the following:

1. Application for Permit: prior to commencing any well stimulation treatment, a well operator must submit an application to the Division of Oil, Gas, and Geothermal Resources (DOGGR) with information regarding the proposed treatment. The application must provide, among other information, a water management plan with an estimate of the amount and source of the water to be used in the treatment, as well as the anticipated disposal method for any recovered water in the flowback fluid. The application must also identify the names and estimated concentrations of the stimulation fluids that will be used in the treatment.
2. Permit: a well operator must obtain a valid permit from DOGGR prior to commencing any well stimulation treatment.
3. Notice to Nearby Landowners: a well operator must provide at least 30-day notice to adjacent landowners, with a copy of the well stimulation permit and notice of the availability of water sampling and testing of well water or surface water.
4. Evaluation of Geologic & Hydrologic Isolation: a well operator must perform an evaluation of the cement outside of the production casing and an evaluation of the well stimulation treatment area of influence, to ensure the geologic and hydrologic isolation of the oil and gas formation. These evaluations must be submitted as part of the permit application.
5. Pressure Testing: not more than 24 hours prior to commencing the well stimulation treatment, a well operator must perform pressure testing of the casing and tubing that will be utilized at a pressure equal to 125% of the pressure anticipated during the well stimulation treatment.
6. Monitoring: a well operator must continuously monitor several parameters during and after the well stimulation treatment.
7. Storage & Handling of Fluids: well stimulation treatment fluids must be stored in containers, in compliance with secondary containment requirements.
8. Public Disclosures: within 60 days after the cessation of a well stimulation treatment, an operator must post specified information to the Chemical Disclosure Registry, including the source, volume, composition and disposition of all water used and recovered as part of the well stimulation treatment.
9. Post-Treatment Report: within 60 days after the cessation of a well stimulation treatment, the well operator must submit a report to DOGGR describing the results of the treatment and how the treatment differs from what was anticipated in the well stimulation treatment design.

The deadline for submitting comments regarding the proposed regulations is 5:00 p.m. on January 14, 2014. For more information regarding the proposed regulations, please visit the DOGGR webpage.

State Agencies Release Draft “California Water Action Plan”

On October 31st the California Natural Resources Agency, the California Environmental Protection Agency and the California Department of Food and Agriculture released a detailed draft “California Water Action Plan.” A final form of the plan is expected to be released in early December. 

In May, Governor Edmund G. Brown Jr. directed the agencies to identify key actions for the next one to five years that address urgent needs and provide the foundation for sustainable management of California’s water resources.

The draft plan identifies the many challenges facing California’s water resources, including: uncertain water supplies; water scarcity/drought; declining groundwater basins; poor water quality; declining native fish species and loss of wildlife habitat; flood risks; and, supply disruptions.

The plan focuses on ten key actions to address these challenges:

1. Make Conservation a California Way of Life

2. Increase Local and Regional Self-Reliance

3. Achieve Co-Equal Goals for the Delta

4. Protect and Restore Important Ecosystems

5. Manage and Prepare for Dry Periods

6. Expand Water Storage Capacity

7. Provide Safe Drinking Water for All Communities

8. Improve Flood Protection

9. Increase Operational and Regulatory Efficiency

10. Identify Sustainable and Integrated Financing Opportunities

Comments and questions about the draft plan may be submitted to wateraction@water.ca.gov

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

KMTG Legal Alert: State Water Resources Control Board May Prevent Illegal Diversions Of Water, Even If Diverter Claims Riparian Or Pre-1914 Appropriative Water Right

In Young v. StateWater Resources Control Board (--- Cal.App.4th ----, Cal.App. 3 Dist., August 4, 2013), a California court of appeal considered whether the State Water Resources Control Board (“Water Board”) has the authority under Water Code section 1831 to issue a cease and desist order (“CDO”) against what it has determined is an unlawful diversion of water, even if the diverter claims a riparian or pre-1914 right.  The appellate court rejected an argument that the Water Board was required to first seek a judicial determination of the claimed riparian or pre-1914 rights.   

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.

If you have any questions concerning this topic, please contact Daniel J. O'Hanlon or Rebecca R. Akroyd from our office, or the KMTG attorney with whom you normally consult.

Update on Challenge to Reclamation's Supplemental Storage Releases from CVP's Lewiston Dam

Following a two day hearing, the U.S. District Court for the Eastern District of California on August 22, 2013, lifted a temporary restraining order (TRO) prohibiting excess releases of stored water into the Trinity River from the Central Valley Project’s Trinity River Division.  

The TRO had been in place since August 12.  In lifting the TRO and declining to issue a preliminary injunction, the court observed that the amount of CVP water slated for release had fallen to some 20,000 acre-feet, which is down from the more than 100,000 acre-feet originally contemplated by Reclamation.  In deciding not to enjoin the smaller storage release, the Court compared the risk of harm to fall-run Chinook salmon to the risk of harm from reducing water supplies for people.  The order acknowledges that “[b]oth sides of this dispute represent significant public interests. . . . Neither side holds veto power over the other.”

Related Posts:

• Court Extends Temporary Restraining Order Against Excess Storage Releases From CVP's Trinity River Division
• Temporary Restraining Order Granted in Lawsuit Challenging the Bureau of Reclamation's Planned August and September 2013 Supplemental Releases from Lewiston Dam

Court Extends Temporary Restraining Order Against Excess Storage Releases From CVP's Trinity River Division

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.”  

Related Post:

• Temporary Restraining Order Granted in Lawsuit Challenging the Bureau of Reclamation's Planned August and September 2013 Supplemental Releases from Lewiston Dam