New Complaint Charges NMFS with Allowing Overfishing of Key Forage Species

A complaint filed this week in the Northern District of California by Oceana charges the National Marine Fisheries Service (NMFS) with failing to protect key species, such as Pacific sardine and anchovy, that serve as the base of the ocean food web. The lawsuit claims NMFS fails to prevent overfishing, fails to account for the species’ ecological role when setting catch limits, and fails to adequately analyze the implications of their actions. A copy of the complaint may be found here.

“America’s fisheries laws mandate protection for the species that form the base of the ocean food web,” said Whit Sheard, Pacific Counsel and Senior Advisor for Oceana. “When the government fails in this task, the rest of the ocean ecosystem, as well as the industries that depend upon it, pay the long term costs.”

The lawsuit seeks to compel NMFS to do the following when managing forage species in the Coastal Pelagic Species Fishery Management Plan:

• Set an “optimum yield” catch level that includes leaving enough forage fish as prey for the other marine life that rely upon these important components of the food web.
• Set required limits and reference points to prevent overfishing.
• Use the best science in determining catch levels and overfishing limits.
• Consider the role of forage fish in the ecosystem and the impacts of removing large amounts of forage fish as part of the required environmental analysis.

Central to the complaint is Amendment 13 to the Coastal Pelagic Species Fishery Management Plan. Adopted by NMFS on November 14, 2011, the stated intent of Amendment 13 is to ensure that the management plan is consistent with recent NMFS guidelines, which describe fishery management approaches to meet the objectives of National Standard 1 (NS1) of section 301 of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). National Standard 1 states “[c]onservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield (OY) from each fishery for the U.S. fishing industry.” The complaint alleges that Amendment 13 violates the MSA in several respects, and contends that NMFS violated the National Environmental Policy Act (NEPA) by, among other things, failing to prepare a full environmental impact statement (EIS). Oceana contends that NMFS's actions are arbitrary and capricious, in violation of the Administrative Procedures Act. Oceana seeks an order vacating and remanding Amendment 13 and requiring the preparation of an EIS.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Court Overrules DFG's Demurrer to Complaint Challenging Lake and Streambed Alteration Program

The Siskiyou County Superior Court recently overruled a demurrer filed by the California Department of Fish and Game (DFG) in a case involving the interpretation of Fish and Game Code Section 1602. The case, filed by the Siskiyou County Farm Bureau (SCFB), seeks a judicial declaration that Section 1602 does not apply to the mere "act of extracting" water from a river or stream pursuant to a valid water right. A copy of the court's opinion may be found here.

In broad terms, Section 1602 requires than an entity notify DFG of any proposed activity that may substantially modify a river, stream, or lake. If DFG determines that the activity may substantially adversely affect fish and wildlife resources, a "Lake or Streambed Alteration Agreement" must be prepared. The agreement includes reasonable conditions necessary to protect those resources and must comply with the California Environmental Quality Act (CEQA). Additional information regarding DFG's lake and streambed alteration program may be found here.

According to the complaint, SCFB members have valid rights to extract water from the Scott and Shasta River watersheds. It charges that DFG has developed a "new and troubling application" of its lake and streambed alteration program, such that extracting water from rivers, streams, and lakes requires compliance with the program, irrespective of whether such extraction causes an alteration. SCFB contends that Section 1602 and related provisions "were never intended to apply to the mere act of extracting water in accordance with a valid water right, but were instead intended to apply only to watercourse-altering activities."

DFG demurred to SCFB's complaint. In overruling the demurrer, the court addressed DFG's chief arguments. First, DFG contended that the complaint is uncertain regarding the existence and nature of an actual controversy between the parties. The court dispensed with this contention, finding the allegations adequately clear and consistent, and sufficient to put DFG on notice of the claims against it. Second, the court rejected DFG's argument that the complaint fails to state an actual and present controversy, given the complaint's adequate description of the existence of a dispute. Third, DFG argued that the complaint is not ripe because it contains "myriad uncertainties and hypotheticals" and because there is no showing that any SCFB member is under imminent threat of prosecution or harm. The Court found that sufficient facts were pled by SCFB, which facts were effectively admitted by DFG through its own documents filed in a request for judicial notice, that a threat currently exists to the SCFB members "if they continue their established practice of using water from streams and rivers" before complying with section 1602. Finally, the court rejected DFG's laches argument, for the reasons set forth in SCFB's opposition to the demurrer.

The Court's decision on the demurrer clears the way for a judicial determination on the merits. DFG must now respond to the complaint within 30 days of the court's December 8 ruling.

For more information regarding this matter, please contact Danielle Teeters or Eric Adair, or the KMTG attorney with whom you normally consult.

House Passes Bill to Prevent EPA from Regulating Farm Dust

Last Thursday, the House passed a bill that would prevent the Environmental Protection Agency ("EPA") from regulating farm dust. H.R. 1633, the "Farm Dust Regulation Prevention Act of 2011," would prohibit the EPA from  proposing, finalizing, implementing, or enforcing any regulation revising the national primary or secondary ambient air quality standard applicable to particulate matter with an aerodynamic diameter greater than 2.5 micrometers under the Clean Air Act ("CAA") for one year.

Bill co-sponsor Representative Jeff Denham, whose district covers parts of Fresno, Madera, Mariposa, Tuolumne, and Stanislaus counties, commented:

The Administration’s excessive regulations have hindered business growth and job creation for too long. I co-sponsored this legislation because it will eliminate regulatory uncertainty and provide relief for Valley small businesses and farmers. Farmers, ranchers, and Valley businesses are already subject to costly federal and state requirements to control dust. This legislation would protect rural businesses from additional, excessive red tape in order to increase certainty among our job creators.

Opponents argued that the bill is unnecessary, given the EPA's stated position that it does not currently intend to regulate coarse particulate matter. In testimony on the bill, an EPA official explained:

EPA Administrator Jackson committed in an October 14, 2011 letter that EPA is prepared to propose to keep the PM10 national ambient air quality standard (NAAQS) as it is, with no change.  This existing standard has been in effect since 1987.  I am hopeful that this announcement ends the myth that the Agency has plans to tighten regulation of “farm dust.”

Despite such assurances, the bill passed 268-150, including unanimous Republican support and the votes of 33 Democrats. But it is not expected to pass in the Senate, and would likely face a Presidential veto in any event. In a statement on the bill, the Obama Administration stated:

The bill therefore, goes far beyond its stated intent of prohibiting the Environmental Protection Agency (EPA) from tightening national standards for coarse particles, which the Administration has repeatedly explained that it has no intention of doing. This ambiguously written bill would create high levels of regulatory uncertainty regarding emission control requirements that have been in place for years.

More information regarding this legislation may be found here. Materials from a hearing before the House Energy and Commerce Committee, including a video of the hearing and witness statements, may be found here.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Environmental Groups Challenge BLM Oil and Gas Leases

Yesterday, the Center for Biological Diversity ("CBD") and the Sierra Club filed a federal action in the Northern District of California challenging the Bureau of Land Management's ("BLM") leasing of property in Monterey and Fresno counties for oil and gas development. A copy of the action may be found here.

The suit arises from BLM's September 14, 2011, lease of three oil and gas parcels totaling approximately 2,500 acres to Vintage Production California, LLC, Lone Tree Energy & Associates, LLC, and a private individual. In the suit, CBD and the Sierra Club allege that BLM's decision to lease the land violates the National Environmental Policy Act ("NEPA") and the Mineral Leasing Act of 1920. Specifically, the suit contends that "BLM relied upon an environmental assessment ('EA') prepared pursuant to NEPA that failed to analyze many of the significant environmental effects of the oil and gas development that could occur upon development of the leases," citing concerns for endangered and sensitive species in the area. The suit also warns of potential impacts to water quality and other resources that allegedly result from hydraulic fracturing, or “fracking,” a method of oil and gas extraction that may be employed in the leased areas. It also complains that oil and gas activity on the property may result in spills and habitat contamination and emissions of methane gas. Ultimately, CBD and the Sierra Club seek to overturn the leases.

The central legal defect alleged by CBD and the Sierra Club centers on BLM's decision to prepare an EA and a Finding of No Significant Impact, or "FONSI," rather than prepare a full Environmental Impact Statement ("EIS"). The environmental groups filed a protest to BLM's decision to proceed with the oil and gas lease sale without an EIS. BLM dismissed their protest and proceeded with the sale, leading to yesterday's filing. Additional information may be found on BLM's website for its Hollister office.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

EPA Releases Findings of Ground Water Investigation in Pavillion, Wyoming

The Environmental Protection Agency ("EPA") recently released draft findings of a ground water investigation conducted in Pavillion, Wyoming. The report is available here. According to an EPA release, "[t]he draft report indicates that ground water in the aquifer contains compounds likely associated with gas production practices, including hydraulic fracturing."

Commenting on the investigation, Jim Martin, EPA's regional administrator in Denver, said:

EPA’s highest priority remains ensuring that Pavillion residents have access to safe drinking water. We will continue to work cooperatively with the State, Tribes, Encana and the community to secure long-term drinking water solutions. We look forward to having these findings in the draft report informed by a transparent and public review process. In consultation with the Tribes, EPA will also work with the State on additional investigation of the Pavillion field.

Some have hailed the draft report as evidence of the potential ground water impacts of fracking generally. Steve Jones of the Wyoming Outdoor Council noted that "[t]his is an important first indication there are potential problems with fracking that can impact domestic water wells. It's I think a clarion call to industry to make sure they take a great deal of care in their drilling practices." But the EPA has been careful not to generalize the results of its investigation, stating that its draft findings "are specific to Pavillion, where the fracturing is taking place in and below the drinking water aquifer and in close proximity to drinking water wells – production conditions different from those in many other areas of the country." And in an interview (video available here), EPA head Lisa P. Jackson confirmed that the particular formation in Wyoming may have contributed to the detection of chemicals in the ground water.

Encana, the company targeted by EPA's investigation, issued a statement that "[t]he EPA's draft report and current view is based on a possibility, not a conclusion built upon peer-reviewed science. The cause of the compounds in the water remains inconclusive. . . . Encana remains committed to seeing that the investigations into determining the source of the compounds found in the Pavillion groundwater are backed by sound science that is reviewed by independent peers." In a further release issued December 12, Encana identified a series of claimed discrepancies in the EPA's data and analysis, commenting that the EPA's "preliminary conclusions do not stand up to the rigor of a non-partisan, scientific-based review and that is of paramount importance to every natural gas producing community, every citizen and business that relies on natural gas and every industry worker."

The draft report will be available for a 45-day public comment period beginning December 14, following which a panel of independent scientists will subject the report to a 30-day peer review process. More information regarding EPA's investigation may be found on its website.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Related news coverage and commentary:

• EPA: Fracking may cause groundwater pollution
• Bad water found at fracking site
• Six Questions for EPA on Pavillion

EPA Announces Urban Waters Small Grants

The Environmental Protection Agency (EPA) recently announced that it will provide funding for projects across the country to protect Americans’ health and help restore urban waters by improving water quality and supporting community revitalization. The funding is part of EPA’s Urban Waters program, which supports communities in their efforts to access, improve, and benefit from their urban waters and the surrounding land.

According to the EPA, the purpose of the small grants is to fund projects, training, and research that will advance restoration of urban waters by improving water quality and community access. EPA expects to award $1.8 million in grants for projects across the country. Examples of projects eligible for funding may include:

• Education and training for water quality improvement or green infrastructure jobs
• Public education about ways to reduce water pollution
• Local water quality monitoring programs
• Engaging diverse stakeholders to develop local watershed plans
• Innovative projects that promote local water quality and community revitalization goals

Funding proposals must be received by EPA by January 23, 2012. The applications may be found here. Answer to frequently asked questions, such as applicant eligibility, project eligibility, and timing may be found here. EPA will hold two web-based seminars on this funding opportunity on December 14, 2011, and January 5, 2012. Registration for the seminars is available here. EPA expects to award the grants in summer 2012.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Congressional ESA Oversight Hearing Materials Available Online

As we recently reported, the House Natural Resources Committee conducted a full committee oversight hearing today, December 6, 2011, on the Endangered Species Act (“ESA”), specifically looking at the impacts of ESA litigation on the economy and species recovery.

In a release issued by the Committee, Chairman Doc Hastings said:

The purpose of the ESA is to recover endangered species – yet this is where the current law is failing – and failing badly. Of the species listed under the ESA in the past 38 years, only 20 have been declared recovered. That’s a 1 percent recovery rate. I firmly believe that we can do better. In my opinion, one of the greatest obstacles to the success of the ESA is the way in which it has become a tool for excessive litigation. Instead of focusing on recovering endangered species, there are groups that use the ESA as a way to bring lawsuits against the government and block job-creating projects. By strengthening and updating the Endangered Species Act, improvements can be made so it’s no longer abused through lawsuits and instead can remain focused on fulfilling its true and original goal of species recovery.

The Committee heard testimony from eight witnesses, listed below with their affiliations and links to their written testimony:

• Dan Ashe, U.S. Fish and Wildlife Service (testimony)
• Eric Schwaab, National Oceanic and Atmospheric Administration (testimony)
• Karen Budd-Falen, Budd-Falen Law Offices (testimony)
• Doug Miller, Public Utility District #2 of Pacific County (testimony)
• Kieran Suckling, Center for Biological Diversity (testimony)
• Jay Tuchton, WildEarth Guardians (testimony)
• John Leshy, UC-Hastings College of Law (testimony)
• Brandon Middleton, Pacific Legal Foundation (testimony)

A video of the hearing may be viewed here.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Related stories and media coverage:

• Congressional Committee Will Hold Oversight Hearing On Endangered Species Act Litigation
• The Endangered Species Act: Reviewing the Nexus of Science and Policy
• Court Denies "Fall X2" Motions and Finds Agency Bad Faith
• Court Finds 2009 Salmonid Biological Opinion Arbitrary and Capricious and Remands to National Marine Fisheries Services
• House panel probes workings of ESA

Congressional Committee Will Hold Oversight Hearing On Endangered Species Act Litigation

On Tuesday, December 6, at 10:00 am EST, the House Natural Resources Committee will hold a full committee oversight hearing on the Endangered Species Act (“ESA”), specifically looking at the impacts of ESA litigation on the economy and species recovery.  The oversight hearing, entitled “The Endangered Species Act:  How Litigation is Costing Jobs and Impeding True Recovery Efforts,” promises to be the first of many hearings that the Committee will hold to examine the efficacy of the ESA and to consider how the Act could be improved.

In a release issued by the Committee, Chairman Doc Hastings said:

It has been over two decades since the ESA was last reauthorized and it’s the responsibility of Congress to undertake a thoughtful analysis of the law to see what improvements could be made to ensure that it works for both species and people. The goal of the ESA is to conserve key domestic species, yet it’s being used by special interest groups to file lawsuits and drain resources away from real recovery efforts. This hearing will specifically look at the impacts of ESA litigation on jobs, our economy and species recovery.

The hearing is open to the public and will be broadcast by live video stream.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Related stories:

• The Endangered Species Act: Reviewing the Nexus of Science and Policy
• Court Denies "Fall X2" Motions and Finds Agency Bad Faith
• Court Finds 2009 Salmonid Biological Opinion Arbitrary and Capricious and Remands to National Marine Fisheries Services

DWR and EPA Release "Climate Change Handbook for Regional Water Planning"

Today, California's Department of Water Resources (DWR) and the U.S. Environmental Protection Agency (EPA) announced the release of "Climate Change Handbook for Regional Water Planning", a publication designed to guide water resource managers and planners as they adapt and navigate the complexities of climate change.

In announcing the release of the handbook, EPA Region 9 Administrator Jared Blumenfeld said:

Climate change will directly affect water supplies and how they are managed. With this guide, EPA is giving water agencies the practical tools they need to effectively manage this precious resource.

DWR Director Mark Cowin added:

Our scientists, engineers and planners are on the cutting edge of analyzing and preparing for the effects of climate change on our water supply. For example, climate change is considered in Integrated Regional Water Management (IRWM), one of our primary strategies for improving water management at the local, regional, and state level.

IRWM is a collaborative effort to manage all aspects of water resources in a region. IRWM attempts to address the issues and differing perspectives of all the entities involved through mutually beneficial solutions. Since 2002, California voters have approved $1.8 billion for IRWM planning and project implementation. The handbook uses the IRWM planning framework as a model into which analysis of climate change impacts and potential adaptation measures can be integrated.

The handbook also provides a checklist for identifying and prioritizing the vulnerability of local watersheds. The checklist includes questions about water demand and supply, wildlife and habitat, sea level rise, critical infrastructure, and hydropower.

The handbook includes:

• Advice on how water resource managers can take climate change into consideration
• A summary of climate change science with links to resources and tools
• Tools for evaluating greenhouse gas emissions for a project
• Tools for measuring regional climate change impacts
• Case studies of communities already incorporating climate change into water resource management

The handbook may be found here.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Webinar: Current Litigation on California Area of Origin Law

On Friday, December 2, at 12:00 p.m. PST, the Natural Resources subsection of California's Real Property Law section will offer an informative presentation by Jennifer Spaletta and Daniel J. O’Hanlon regarding current litigation on California area of origin law. Event participants will learn about pending efforts in state and federal court to apply statutes to give priority deliveries of Central Valley Project and State Water Project water supplies to area of origin users.

In addition to a brief overview of California area of origin law and its historical applications, participants will hear about Solano County Water Agency v. Department of Water Resources, currently pending in Sacramento Superior Court. In this litigation, Solano County Water Agency and other agencies who serve water to northern California communities located in areas of origin filed suit against the California Department of Water Resources. Counsel for plaintiffs will be on hand to explain arguments for having DWR operate the State Water Project to give plaintiffs priority to their full contract supplies before exporting water south.

Similar arguments in the federal litigation, Tehama-Colusa Canal Authority v. U.S. Department of Interior, will be discussed by counsel for defendant-intervenors in that case. In federal court, plaintiffs sought and were denied operation of the Central Valley Project that would give priority allocations to area of origin users before water is exported south of the delta. This matter is currently on appeal.

The event will be hosted at Kronick Moskovitz Tiedemann & Girard, 400 Capitol Mall, 27th Floor, Sacramento, California 95814. To attend in-person, please email Lindsey Ono at Lono@kmtg.com.

To participate via webinar, see Origin Law.

For more information regarding this webinar, please contact Eric Adair or the KMTG attorney with whom you normally consult.

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

California Fish And Game Commission May List American Pika Under CESA

California's Fish and Game Commission recently declared the American Pika a candidate species under the California Endangered Species Act (CESA).

The Commission had rejected an earlier petition to list the Pika as threatened or endangered, but will now take up to 12 months to reevaluate the biological data and determine whether listing the Pika under CESA is warranted. The American Pika is an alpine species that lives virtually above the tree line in the Sierra Nevada and other high mountain ranges. It emerges only briefly in the summer to feast on budding alpine vegetation, and then survives harsh winters by hibernating deep within scree and boulder piles.

The petition to list the Pika cited global warming as the key threat to this species. The Pika, with its very fast metabolism, cannot withstand unseasonably warm summer temperatures. Unfortunately, data indicate that summer peak temperatures in the Sierra and other mountain ranges have been trending upwards toward the Pika's lethal tolerance level. Many point to climate change as the cause of the temperature trend, and some cite human greenhouse gas emissions and other activities as leading contributors to that change. What makes the Pika's potential listing under CESA so intriguing is that there really is no direct threat to the species from human activity due to its remote alpine habitat. Thus, listing it under CESA may be more symbolic than practical.  However, if the Pika is listed under CESA, some may use that listing to challenge various human activities that purportedly jeopardize the Pika indirectly by contributing to climate change in the Pika's native mountain habitat. There is no indication CESA was intended to address such a diffuse threat to a species, and the law is ill-suited to the task. But this may offer an avenue for certain groups to seek to use CESA to achieve these ends. The Pika's status and the Commission's forthcoming listing determination merit attention for this very reason.

The Department of Fish and Game will submit a written report within a year, pursuant to Section 2074.6 of the Fish and Game Code, indicating whether the petition to list the Pika is warranted. Written comments related to the petition should be directed to the Fish and Game Commission, 1416 Ninth Street, Box 944209, Sacramento, California 94244–2090.

The Fish and Game Commission's Notice of Findings may be found here, at page 1826.

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

Court Affirms Agency Discretion in Selection of Project Baseline Under CEQA

Pfeiffer v. City of Sunnyvale, a November 28, 2011, decision by California's Sixth District Court of Appeals, has added to the ongoing debate over the proper baseline from which to analyze project impacts under the California Environmental Quality Act (CEQA).

Several recent cases involving challenges to traffic analyses had suggested that a lead agency must use existing conditions as the baseline in all circumstances. In Pfeiffer, however, the Sixth District reaffirmed that lead agencies have some discretion to select the baseline or baselines, so long as the selection is supported by substantial evidence and furthers CEQA's goal of providing accurate environmental impact analysis and full public disclosure. Importantly, the case also reaffirms CEQA's requirement that challengers must do more than simply attack the chosen baseline method as flawed by providing evidence and explanation for why the selected baseline could distort the analysis of a proposed project's environmental effects. This should end the cookie-cutter baseline challenges that have been increasing since the new line of CEQA cases suggested that only existing conditions may serve as the baseline.

Pfeiffer also found that the lead agency's use of several baselines to represent current and future conditions was not erroneous because it provided the best assessment and disclosure of the full traffic impacts of the proposed project, and the lead agency had clearly explained its choice. In upholding the lead agency's choice, the court injected some reasonableness into what had begun to appear to be a rigid and inflexible approach to CEQA baseline selection. Such an inflexible approach was unsuited for particularly complex, unique, or other novel circumstances. CEQA practitioners should still be wary when selecting a baseline that differs from existing conditions.  Nonetheless, Pfeiffer provides support for selection of a different method when circumstances warrant, so long as that selection is explained, supported in the administrative record, and designed to lead to a full and accurate analysis and disclosure of the potential impacts of a project.

The court's opinion may be found here.

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

Department of Water Resources Announces 60% Initial Allocation for 2012

California's Department of Water Resources announced yesterday an initial 60% allocation of requested deliveries to State Water Project contractors for 2012.

This initial allocation for the 2012 water year is a significant increase over last year's initial allocation of 25%, made in November 2010. With the significant rainfall and a near-record snowpack that followed, 2011's final allocation reached 80% of requests. In contrast, the final allocations for 2010, 2009, 2008, and 2007 were 50%, 40%, 35%, and 60%, respectively. The favorable initial allocation for 2012 is relatively high due to carryover storage from unusually wet conditions last winter. Even a normal winter will significantly increase yesterday's 60% allocation.

"We are off to a promising start for next year's water supply," said DWR Director Mark Cowin. "We are cautious not to be overly optimistic, but last winter's near-record snowpack and rainfall promises that even average precipitation this winter should give us adequate supplies for our farms, cities and businesses."

Lake Oroville in Butte County, the State Water Project's principal storage reservoir with a capacity of 3.5 million acre-feet, is at 80 percent of capacity with 2,825,422 acre-feet held in Lake Oroville. That is 130 percent of normal for the date.

A copy of DWR's November 18 press release may be found here, and the notice to State Water Project contractors may be found here. More information about the State Water Project contractors, including links to their water supply contracts, may be found here. Additional information may be obtained from DWR's Public Affairs Office.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Center for Irrigation Technology Releases Report on California Agricultural Water Use

The Center for Irrigation Technology at California State University, Fresno, has released its report on "Agricultural Water Use in California: A 2011 Update." A copy of the report may be found here.

According to its executive summary, the report "is a thorough review of published research and technical data as well as State of California publications to assess the overall potential for agricultural water use efficiency to provide new water supplies. The report found that little potential exists for new water unless large swaths of agricultural land are taken out of production, which technically is not water use efficiency." The report later explains that enhanced agricultural water conservation will never result in sufficient new water to solve the problems of water management or at least provide the volumes of water desired by all users in California.

The key findings of the report include:

• The estimated potential new water from agricultural water use efficiency is 1.3 percent of the current amount used by the state’s farmers – about 330,000 acre-feet per year (at funding level PL-5 of the Department of Water Resources latest California Water Plan Update 2009). That represents about 0.5 percent of California’s total water use of 62.66 million acre-feet.
• Groundwater overdraft of about 2 million acre-feet per year continues to be a serious problem in certain regions of California because of inconsistent and uncertain surface water supplies.
• Changes in irrigation practices, such as switching from flood irrigation to drip, have the effect of rerouting flows within a region (or basin) but generally do not create new water outside of the basin.
• Previous reallocations of agricultural water supplies for environmental purposes represent at least 5 percent of farm water diversions depending on water year.
• On-farm water conservation efforts can affect downstream water distribution patterns, with potential impacts on plants and animals, recreation, as well as human and industrial consumptive uses. The effects can be positive or negative and also inconsistent (e.g., on-farm conservation could reduce a city’s water supply but improve the nonpoint source situation).

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

North Coast RWQCB CEQA Scoping Meeting and Workshop Scheduled for November 8

The North Coast Regional Water Quality Control Board has scheduled a CEQA scoping meeting and workshop for November 8, 2011, to consider a proposed amendment to add an Aquatic Ecosystem Restoration Policy ("AERP") to the Water Quality Control Plan ("Basin Plan") for the North Coast Region.

Regional Board staff is a proposing a Basin Plan amendment that will demonstrate the support of the Regional Board for the use of aquatic system restoration as one of several existing tools to be used in the restoration and maintenance of the chemical, physical, and biological integrity of the region’s waters. Staff has proposed the AERP to set forth eligibility criteria and provide a description of the process for obtaining (1) an exemption from certain discharge prohibitions and/or (2) authorization for discharges that may cause temporary exceedances of certain water quality objectives.

The November 8 workshop will be held from 9:00 a.m. to 11:00 a.m. at the Trinity Public Utilities District Office located at 26 Ponderosa Lane, Weaverville, California.

The deadline for comments on the CEQA scoping document is November 18, 2011. Comments must be mailed to:

North Coast Regional Water Quality Control Board
5550 Skylane Blvd., Suite A
Santa Rosa, CA 95403
Attn: Alydda Mangelsdorf

Comments may also be sent by email to: AMangelsdorf@waterboards.ca.gov.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Related documents:

• Water Quality Control Plan for the North Coast Region 
• Policy for Aquatic Ecosystem Restoration CEQA Scoping Document 
• Revised Notice of Public Workshop and CEQA Scoping Meeting For the Proposed Aquatic Ecosystem Restoration Policy

EPA Announces Final Study Plan to Assess Hydraulic Fracturing

On November 3, 2011, the EPA announced its final research plan on hydraulic fracturing, or fracking, a drilling methodology designed to recover natural gas and oil from deep shale formations by injecting water, sand and chemicals to break apart the rock formations and release hydrocarbons.

EPA announced in March 2010 that it would conduct a research study to investigate the potential impacts of hydraulic fracturing on drinking water resources, under direction from Congress in its fiscal year 2010 Appropriations Committee Conference Report. EPA published a draft plan on February 7, 2011. The plan has now been finalized following a series of public meetings and a review conducted by the Science Advisory Board. EPA's response to specific Board comments may be found here.

As stated in the research plan,

The overall purpose of this study is to elucidate the relationship, if any, between hydraulic fracturing and drinking water resources. More specifically, the study has been designed to assess the potential impacts of hydraulic fracturing on drinking water resources and to identify the driving factors that affect the severity and frequency of any impacts. Based on the increasing development of shale gas resources in the US, and the comments EPA received from stakeholders, this study emphasizes hydraulic fracturing in shale formations.

Study results are expected to be released publicly in 2012. At that point, EPA expects to have results from data analysis, modeling and retrospective case studies available to inform a preliminary assessment of potential impacts of hydraulic fracturing on drinking water resources. The final report is expected in 2014, when EPA will have additional results from data analysis and modeling, as well as additional laboratory and case study results to expand its assessment.

More detail on hydraulic fracturing may be found on EPA's website.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Related documents:

• Plan to Study the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources
• Press release on EPA's final hydraulic fracturing study plan
• Science Advisory Board Review of EPA’s Draft Hydraulic Fracturing Study Plan
• Questions and Answers About EPA's Hydraulic Fracturing Study

OCAP Annual Independent Science Review Panel to Convene November 8-9, 2011

The 2011 Operations Criteria and Plan ("OCAP") annual independent science review will take place on November 8-9, 2011, in Sacramento. The meeting announcement and agenda, with instructions on participating via the internet, may be found here.

Under the auspices of the Delta Science Program ("DSP"), an independent science panel comprised of various academics and experts will convene to review the implementation of the OCAP for the prior year’s operations. The purpose of the review is to provide critical information to the National Marine Fisheries Service ("NMFS") and the U.S. Fish and Wildlife Service ("FWS") about the effectiveness of the prior year’s water operations and regulatory actions. NMFS and FWS have issued biological opinions and reasonable and prudent alternatives ("RPA") on the long-term operations of the Central Valley Project and State Water Project relative to salmonids and smelt, respectively. The agencies have requested that the DSP convene the panel to provide a technical review on the implementation of the biological opinions and RPAs. The specific charge to the panel may be found here.

The panelists are:

• James Anderson, Ph.D., University of Washington
• James Gore, Ph.D., University of Tampa
• Ron Kneib, Ph.D., RTK Consulting & University of Georgia (Emeritus)
• Mark Lorang, Ph.D., University of Montana
• John Van Sickle, Ph.D., U.S. Environmental Protection Agency’s Western Ecology Division

The annual review will be conducted Tuesday, November 8, from 9:00 a.m. to 5:00 p.m., and Wednesday, November 9, from 2:00 p.m. to 5:00 p.m. Both days' sessions will take place at 650 Capitol Mall, Stanford Room (first floor), in Sacramento. Sessions should be available on the internet.

Copies of all materials for the annual review, including review materials and background information, may be found here.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Delta Stewardship Council Releases Draft Environmental Impact Report for Delta Plan

As we reported yesterday, the Delta Stewardship Council has released the draft Environmental Impact Report ("EIR") for the Delta Plan. The EIR is now available on the Council's website.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Related stories:

• Delta Stewardship Council to Release Draft Environmental Impact Report for the Delta Plan on November 4
• Delta Stewardship Council to Discuss Delta Plan on August 26
• Delta Stewardship Council Releases Draft Version of Delta Plan

Delta Stewardship Council to Release Draft Environmental Impact Report for the Delta Plan on November 4

The Delta Stewardship Council issued a public notice today advising that the Delta Plan Environmental Impact Report ("EIR") will be released tomorrow, November 4, 2011.

The Delta Plan, a mandate of SBX7-1 of California's landmark 2009 water legislation, requires that the Council develop, adopt and carry out a comprehensive long-term management plan for the Delta (“Delta Plan”). The Delta Plan must include measures that promote: (1) viable populations of aquatic and terrestrial species; (2) functional corridors for migratory species; (3) diverse habitats; (4) reduced threats; (5) more reliable water supplies; (6) improved water quality; and (7) the economic vitality of the State. It must also include recommendations promoting statewide water conservation, options for new and improved infrastructure relating to water conveyance in the Delta, and in-Delta disaster and risk reduction considerations.

According to the Council's public notice,

[T]he Delta Plan sets forth regulatory policies, and recommendations, that seek to influence the actions, activities and projects of cities, counties, and State, federal, regional and local agencies toward meeting the goals in the five topic areas. Examples of the types of actions/activities the Delta Plan seeks to influence include, but are not limited to: new or expanded water storage reservoirs; wetlands and riparian restoration; invasive species management; water flow patterns in the Delta; water, wastewater, stormwater and agricultural runoff water treatment; levee modification and construction; floodplain expansion; new/improved active and passive recreation opportunities in the Delta.

The draft Delta Plan is the proposed project to be evaluated in the EIR. The EIR will be available online at the Council's website, and we will also post a link to the EIR here on the blog.

The Council will accept public comments on the Delta Plan EIR until January 3, 2012. Comments may be sent via regular mail to "EIR Comments", Delta Stewardship Council, 980 Ninth Street, Suite 1500, Sacramento, California 95814. Comments may also be submitted electronically through the Council's website or via email with the subject line “Draft EIR” to eircomments@deltacouncil.ca.gov.

The Council will also accept public comments, either in writing or orally, at two meetings:

Thursday, November 17, 2011

1:00 p.m. to 4:30 p.m.

Sheraton Grand Hotel, 1230 J Street, Sacramento

Thursday, December 15, 2011

1:00 p.m. to 4:30 p.m.

California State Capitol, Room 447, Sacramento

A PowerPoint presentation prepared by the Council on the status of the development of the EIR may be found here.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Related stories:

• Delta Stewardship Council Releases Draft Version of Delta Plan
• Delta Stewardship Council to Discuss Delta Plan on August 26

United States Supreme Court Declines To Review Commerce Clause Challenge To Delta Smelt Biological Opinion

On October 31, 2011, the United States Supreme Court rejected a petition for certiorari by several San Joaquin Valley farm companies in Stewart & Jasper Orchards v. Salazar, et al., a case partially consolidated with the Delta Smelt Consolidated Cases.

The Ninth Circuit Court of Appeals had previously rejected an argument by Stewart & Jasper Orchards, Arroyo Farms, LLC, and King Pistachio Grove that application of the federal Endangered Species Act (ESA) violated the Commerce Clause. The Ninth Circuit determined that "the protection of threatened or endangered species implicates economic concerns." Accordingly, the lower appellate court rejected the farm companies' argument that Congress lacked the authority to impose environmental restrictions under the ESA because the delta smelt were strictly an intrastate species. Yesterday's Supreme Court's decision leaves the Ninth Circuit's earlier ruling intact.

If you have any questions concerning this matter, please contact Rebecca R. Akroyd or the KMTG attorney with whom you normally consult.

Additional coverage may be found on the Pacific Legal Foundation's website.

Related stories:

• Court Denies "Fall X2" Motions and Finds Agency Bad Faith
• Federal District Court Enjoins Water Supply Restrictions Under Delta Smelt Biological Opinion

The Endangered Species Act: Reviewing the Nexus of Science and Policy

A Congressional hearing was conducted recently by the Investigations and Oversight Subcommittee of the Committee on Science, Space, and Technology.  The focus of the hearing was "The Endangered Species Act: Reviewing the Nexus of Science and Policy."  The hearing was convened, at least in part, in response to Judge Oliver Wanger's September 16, 2011, decision in the Delta smelt case, in which he made an express find of bad faith on the part of the United States Fish and Wildlife Service.

According to the Subcommittee's press release,

Witnesses highlighted recent events at the Department of Interior that have called into question how science informs policy related to the ESA.  On September 16, 2011 U.S. District Court Judge Oliver Wanger of California sharply criticized the work and testimony concerning the Delta Smelt Biological Opinion by two Federal scientists, one from the Fish and Wildlife Service (FWS) and one from the Bureau of Reclamation.  Commenting upon the FWS scientist, Judge Wanger stated “I find her testimony to be that of a zealot.”  In further comments about the Bureau of Reclamation scientist, he stated  “…the only inference that the Court can draw is that it is an attempt to mislead and to deceive the Court into accepting what is not only not the best science, it's not science.”  Mr. Gary Frazer, Assistant Director , Endangered Species, U.S. Fish and Wildlife Service, announced that the “Department has instructed the scientific integrity officers of the Service and the Bureau of Reclamation to retain independent experts to evaluate the allegations made by Judge Wanger.”

Among the speakers at the hearing was former Assistant Secretary for Fish and Wildlife and Parks in the U.S. Department of the Interior, The Honorable Craig Manson (currently general counsel for Westlands Water District, a client of Kronick Moskovitz Tiedemann & Girard).  Mr. Manson explained:

“Although not intended by the drafters, implementation of the ESA has become a win-lose adversarial process…The politicization of the ESA began at its inception and has carried on through every Administration and Congress since then.”  Manson continued, “When scientists and policymakers don't understand each other, then chaos and strife will reign in their relationships. The ESA exists at the confluence of science, law, and policy.  It is not a purely scientific decision scheme.”

The full text of Mr. Manson's testimony may be found here.

Other speakers at the hearing included:

• Mr. Jonathan Adler, Professor, Case Western Reserve University School of Law (Testimony)
• Mr. Gary Frazer, Assistant Director, Endangered Species, U.S. Fish and Wildlife Service (Testimony)
• Mr. Douglas Vincent-Lang, Special Assistant, Alaska Department of Fish and Game (Testimony)
• Dr. Neal Wilkins, Director, Institute of Renewable Natural Resources, Texas A&M University (Testimony)
• Dr. Francesca T. Grifo, Senior Scientist and Director, Scientific Integrity Program, Union of Concerned Scientists (Testimony)

A video of the hearing may be found here.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Related story: Court Denies "Fall X2" Motions and Finds Agency Bad Faith

U.S. Fish and Wildlife Service Determines That California Golden Trout Does Not Warrant Protection Under the Endangered Species Act

California’s official state fish, the California Golden Trout, is not an endangered species, according to the United States Fish and Wildlife Service (FWS).  On October 7, 2011, after more than a decade of evaluating the Golden Trout’s status, FWS announced that the species does not warrant protection under the federal Endangered Species Act.

In 2000, Trout Unlimited petitioned FWS to list the Golden Trout as an endangered subspecies, based on concerns regarding habitat degradation, genetic hybridization, and predation.  In 2004, the state and federal fish and wildlife agencies forged a cooperation conservation agreement with interest groups, to address the threats to the Golden Trout.  The agreement provided for habitat restoration projects, decreased cattle grazing, and more studies of the fish.  In concluding that the Golden Trout was not an endangered species, FWS considered the conservation measures and benefits already in place under this agreement.

Additional actions taken under the species’ Conservation Strategy to protect the Golden Trout from genetic dilution and competition were also identified as contributing to the species’ health and population.  FWS concluded that these past conservation actions and continuing commitments provided protection for the Golden Trout, and that an endangered listing was not warranted.

FWS's press release regarding this listing decision may be found here.

For a draft of the Federal Register Notice "Endangered and Threatened Wildlife and Plants; 12-Month Finding for a Petition to List the California Golden Trout as Endangered," click here.

If you have any questions concerning this matter, please contact Rebecca R. Akroyd or the KMTG attorney with whom you normally consult.

Court Rejects Lawsuit That Would Have Closed 2011 Sacramento Fall-Run Chinook Salmon Season

On September 30, 2011, the United States District Court for the Eastern District of California rejected a lawsuit filed by the San Joaquin River Group Authority ("SJRGA").  The lawsuit challenged the Pacific Fisheries Management Council's adoption of fishing management measures for Sacramento River fall-run Chinook salmon for the 2011 fishing season and the National Marine Fisheries Service's approval of those  management measures.

In a memorandum decision authored by now-retired Judge Oliver Wanger, the court first dismissed the Pacific Fisheries Management Council as a defendant on the ground that it was not an "agency" within the meaning of the Administrative Procedures Act:

The court next concluded that SJRGA lacked standing to bring such a lawsuit against the National Marine Fisheries Service, describing the failure by SJRGA to prove that the alleged harm from the 2011 management measures was "sufficiently imminent" or that the alleged risk of additional burdens on SJRGA's water rights was causally linked to the 2011 management measures.  The court found that SJRGA failed to demonstrate a likelihood that the challenged action would cause any harm to its members' water rights.

After finding that SJRGA lacked standing, the court went on to consider the merits of the case.  The court rejected SJRGA's arguments that the federal defendants had violated the Magnuson-Stevens Act, National Environmental Policy Act, and Administrative Procedures Act.

The district court's memorandum decision and order in the case, San Joaquin River Group Authority v. National Marine Fisheries Service, et al., Case No. 1:11-CV-00725, may be found here and here, respectively. 

If you have any questions concerning this decision, please contact Rebecca R. Akroyd or the KMTG attorney with whom you normally consult.

KMTG Legal Alert: Court Invalidates Urban Development Project EIR For Failing To Disclose And Address Water Supply Uncertainties

In Madera Oversight Coalition, Inc. et al. v. County of Madera (--- Cal.App.4th ---, Fifth Dist., September 13, 2011) (Madera), the Fifth District Court of Appeals provided guidance on completing California Environmental Quality Act review for a major urban development project. The opinion addresses: disclosure of uncertainties regarding water supply; limits on agency discretion in establishing an environmental baseline for analyzing impacts; standards for creating, augmenting and challenging the administrative record; and findings for mitigation of impacts to archeological resources.

In Madera, petitioners challenged the Madera County’s 2008 approval of the mixed-use Tesoro Viejo development project, claiming that its Environmental Impact Report was inadequate. The trial court ruled for the petitioners based on deficiencies in the EIR’s discussion of uncertainties regarding the Project’s water supply. Both sides cross-appealed.

For a detailed discussion of the Fifth District Court of Appeals' ruling on the parties' cross-appeals and the facts of this case, please see the full KMTG Legal Alert here.

A copy of the court's opinion may be found here.

If you have any questions concerning this topic, please contact Janet K. Goldsmith or Eric N. Robinson from our office, or the KMTG attorney with whom you normally consult.

Related story:

• Court Invalidates EIR For Failing To Disclose Legal Uncertainty Affecting Availability Of Water To Serve Development Project

EPA Releases Final Health Assessment for TCE

On September 28, the Environmental Protection Agency announced the release of its Final Health Assessment for trichloroethylene.  The final assessment characterizes the chemical as carcinogenic to humans and as a human noncancer health hazard.

TCE is one of the most common man-made chemicals found in the environment.  A chlorinated hydrocarbon, it was widely used as an industrial solvent and is now prevalent at Superfund and other sites across the country.  EPA already has set a maximum contaminant level for TCE at 5 parts per billion, with a maximum contaminant level goal of 0 ppb.  It has also established standards for cleaning up TCE at Superfund sites throughout the country.  Additional information regarding TCE may be found at the U.S. Department of Health and Human Services' website.

Paul Anastas, assistant administrator for the EPA's Office of Research and Development, reported:

This assessment is an important first step, providing valuable information to the state, local and federal agencies responsible for protecting the health of the American people.  It underscores the importance of EPA's science and, in particular, the critical value of the IRIS database for ensuring that government officials and the American people have the information they need to protect their health and the health of their children.

TCE toxicity values as reported in the assessment will be considered in:

• Establishing cleanup methods at the 761 Superfund sites where TCE has been identified as a contaminant;
• Understanding the risk from vapor intrusion as TCE vapors move from contaminated groundwater and soil into the indoor air of overlying buildings;
• Revising EPA’s Maximum Contaminant Level for TCE as part of the carcinogenic volatile organic compounds group in drinking water, as described in the agency’s drinking water strategy; and
• Developing appropriate regulatory standards limiting the atmospheric emissions of TCE – a hazardous air pollutant under the Clean Air Act.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

EPA Orders $60 Million Cleanup of Aerojet Superfund Site in Sacramento County

The Environmental Protection Agency announced today that it is ordering a $60 million clean-up of rocket fuel-polluted groundwater at the Aerojet Superfund Site in Sacramento County.

In its press release, the EPA stated that a 27-square mile swath of groundwater underneath and around the former aerospace facility is polluted with several compounds, including very high levels of perchlorate – a main component of rocket fuel – and a known developmental toxin.  Aerojet, under the direction of the EPA, will contain the underground plume to prevent it from spreading into nearby rivers and streams.  Future plans will also treat groundwater within the site’s boundaries.

Speaking of the order, EPA Region 9 Administrator Jared Blumental said:

This cleanup tackles the worst areas first to prevent toxic chemicals from fouling any additional water sources.  Not only is EPA holding Aerojet accountable for its pollution, but we want to assure local residents that they will have safe drinking water for years to come as the company works to restore the underground aquifer.

The Aerojet site, according to the EPA, covers 8,500 acres near Rancho Cordova, 15 miles east of Sacramento, and is about 1/2 mile from the American River.  Since 1953, Aerojet and its subsidiaries have manufactured liquid and solid propellant rocket engines for military and commercial applications and have formulated a number of chemicals, including rocket propellant agents, agricultural, pharmaceutical, and other industrial chemicals.  In addition, the Cordova Chemical Company operated chemical manufacturing facilities on the Aerojet complex from 1974 to 1979.

Additional information regarding the Aerojet Superfund site may be found at the EPA’s site overview page.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Judge Oliver Wanger Gives Radio Interview Before Leaving Federal Bench

Judge Oliver Wanger, who is scheduled to leave the federal bench at the end of this week, gave a radio interview to KQED's The California Report. The interview may be heard at this link.

Related stories:  

• Court Finds 2009 Salmonid Biological Opinion Arbitrary and Capricious and Remands to National Marine Fisheries Services
• Court Denies "Fall X2" Motions and Finds Agency Bad Faith
• Federal District Court Enjoins Water Supply Restrictions Under Delta Smelt Biological Opinion
• District Court Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority

KMTG Legal Alert: Water District’s New Rate Structure Failed To Comply With Requirements Of Proposition 218

In City of Palmdale v. Palmdale Water District (--- Cal.Rptr.3d ----, Cal.App. 2 Dist., August 9, 2011), a court of appeal considered whether the new water rate structure of a water district met the constitutional requirements of Proposition 218. The court held the rate structure did not meet Proposition 218’s proportionality requirement because the district’s tier structure establishes that certain customers are charged disproportionate rates without any showing by the district that there is a disparity in the cost of providing water to the customers at different tiers within the structure.

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.

A copy of the court's opinion may be found here.

If you have any questions concerning this topic, please contact Jeffrey L. Massey or Jon Goetz from our office, or the KMTG attorney with whom you normally consult.

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.

Court Finds 2009 Salmonid Biological Opinion Arbitrary and Capricious and Remands to National Marine Fisheries Services

On September 20, 2011, the United States District Court for the Eastern District of California issued a memorandum decision that finds the 2009 Salmonid Biological Opinion ("BiOp") and Reasonable and Prudent Alternative ("RPA") arbitrary, capricious, and unlawful.

In a 279-page decision by Honorable Judge Oliver Wanger, the court found several scientific and legal errors in the BiOp and RPA that warranted remand.  On multiple occasions, the court found "clear error" or a failure to use the "best available science."  The court concluded:

Some of NMFS's analyses rely upon equivocal or bad science to impose RPA Actions without clearly explaining or otherwise demonstrating why specific measures imposed are essential to avoid jeopardy and/or adverse modification.  Given the potential serious impacts of these measures, the agency must do more to comply with the law.

The district court's opinion in the case, San Luis & Delta-Mendota Water Authority et al. v. Locke et al., Case No. 1:09-CV-1053, may be found here.  A KMTG Legal Alert with a detailed analysis of the court's ruling will be posted in the near future.

If you have any questions concerning this decision, please contact Rebecca R. Akroyd, K. Eric Adair, Daniel J. O'Hanlon, or Hanspeter Walter, or the KMTG attorney with whom you normally consult.

Court Denies "Fall X2" Motions and Finds Agency Bad Faith

Judge Oliver Wanger conducted a hearing today on the motions filed by the United States Fish and Wildlife Service and the Natural Resources Defense Council (collectively, "Defendants") to stay his August 31 order.  In that order, Judge Wanger enjoined the federal government from implementing the “Fall X2” measure under the Delta smelt biological opinion.  Absent the injunction, the Fall X2 measure would have restricted California’s water supply by many hundreds of thousands of acre feet.

At today’s hearing, the court denied Defendants' motions to stay the August order.  In announcing its decision, the court incorporated its prior findings of fact and conclusions of law regarding the request for injunctive relief.

Significantly, the court made an express finding of agency bad faith, describing the testimony of witnesses for the federal government, Mr. Frederick V. Feyrer and Dr. Jennifer M. Norris, as "riddled with inconsistency."  The court found both witnesses to be incredible, discounting their testimony that the injunctive relief previously granted would jeopardize the continued existence of the Delta smelt.

The court modified the injunction so that it will become effective October 16, 2011, based on evidence that natural conditions and other operating parameters will keep the location of X2 at approximately 74 kilometers until that date.

For more information regarding this matter, please contact Rebecca Akroyd, Hanspeter Walter, Daniel O’Hanlon, Eric Adair, or the KMTG attorney with whom you normally consult.

Update: Additional analysis of today's hearing may be found at the PLF Liberty Blog and on the ACWA website.

Related stories:

• Federal District Court Enjoins Water Supply Restrictions Under Delta Smelt Biological Opinion
• NRDC Seeks to Stay Injunction of Fall X2 Action Under Delta Smelt Biological Opinion
• Hearing on Motion to Stay Fall X2 Injunction Set for September 16

Related documents:

• Findings of Fact and Conclusions of Law re Plaintiffs' Request for Injunctive Relief Against Implementation of RPA Component 3 (Action 4)
• NRDC Motion for Stay of Fall X2 Injunction Pending Appeal
• Federal Defendants' Motion for Stay Pending Appeal of the Court's Order Enjoining Action 4
• Plaintiffs' Opposition to Defendants-Intervenors' Motion for Stay of Fall X2 Injunction Pending Appeal
• Plaintiffs' Opposition to Federal Defendants' Motion for Stay Pending Appeal of the Court's Order Enjoining Action 4

Court Invalidates EIR For Failing To Disclose Legal Uncertainty Affecting Availability Of Water To Serve Development Project

Where the United States questions whether a federal water supply contract may be used to serve a proposed urban development project, that project’s environmental impact report (“EIR”) must disclose the government’s position and address the resulting uncertainty in the project’s water supply. 

The Fifth District Court of Appeal reached that holding in a September 13, 2011, opinion in Madera Oversight Coalition v. County of Madera (App.Case No. F059153).  The opinion affirms a Superior Court judgment setting aside the EIR for a 5,200-unit mixed-use development project located in unincorporated Madera County.

The Court of Appeal addressed several recurring CEQA issues, including: (1) preparation of CEQA administrative records and challenges to trial court rulings on record augmentation motions; (2) compliance with CEQA’s requirements for analyzing and mitigating effects to cultural, historical, and archaeological resources; (3) use of the existing environmental conditions versus projected future conditions as the baseline for assessing the significance of project impacts; (4) cumulative impact analysis; and (5) analysis of water supply availability.

Of particular interest is the appellate holding that the water supply adequacy determination in Madera County’s EIR violated CEQA’s mandate for full disclosure and informed decisionmaking by failing to disclose key factors affecting the availability of a federal “holding contract” water supply that the project’s SB 610 Water Supply Assessment (“WSA”) and EIR identified to serve the proposed project.  Although the WSA and EIR determinations were based on a legal opinion concluding that the holding contract water may be used to serve the proposed project, neither that opinion, the WSA nor the EIR disclosed and addressed evidence indicating that the holding contract supply might not be available to serve the project absent a contract amendment.

The EIR process failed to disclose and address a letter by the U.S. Bureau of Reclamation questioning whether the water available under the holding contract could be used to serve commercial, industrial and other urban uses approved as part of the new development project.  The EIR process also failed to disclose and address a recent superior court ruling, arising from separate litigation, that questioned the availability of water supplies to serve a different development project under a different, but similar, federal holding contract.

The Court of Appeal rejected arguments that the WSA and EIR determination of water supply adequacy should be upheld as supported by substantial evidence.  Focusing on the failure to disclose and address the Bureau of Reclamation letter and separate court ruling, the Court of Appeal held that the question of full EIR disclosure presents “a question of law.”  The appellate court explained:

Ultimately, this case comes down to whether the discussion in the EIR regarding the project’s water supply is adequate despite the nondisclosure of information concerning uncertainties surrounding the proposed use of Holding Contract No. 7 as the project’s source of water.

From there, the appellate court reasoned that those omissions:

[R]esulted in the public and decisionmakers being deprived of a full disclosure of the uncertainties related to the project’s water supply.  The basis for this conclusion is relatively simple.  Would two objectively reasonable persons – one presented with only the water supply assessment and the other presented with both the water supply assessment and the [Bureau of Reclamation’s] letter – come to the same conclusion as to the level of uncertainty of the project’s water supply?  We conclude they would not and, thus, the water supply assessment did not provide a full disclosure of relevant information.

The case serves as a reminder that a comprehensive and detailed water supply availability analysis is critical to preparing legally defensible CEQA documents for proposed development projects.

KMTG will publish a Legal Alert with a more detailed analysis of the opinion's broad CEQA holdings.  In the meantime, a copy of the court's opinion may be found here.

For more information regarding this matter, please contact Hanspeter Walter, Andrew Tauriainen, Eric Robinson, or the KMTG attorney with whom you normally consult.