Federal District Court Enjoins Water Supply Restrictions Under Delta Smelt Biological Opinion

On August 31, 2011, the United States District Court for the Eastern District of California enjoined the federal government from implementing the so-called “Fall X2” measure, which, absent the injunction, would have restricted California’s water supply by hundreds of thousands of acre feet.

In his 140-page Findings of Fact and Conclusions of Law, Judge Oliver W. Wanger granted a motion filed by State Water Contractors, Metropolitan Water District of Southern California, Kern County Water Agency, Coalition for a Sustainable Delta, San Luis & Delta-Mendota Water Authority, and Westlands Water District to enjoin implementation of the Fall X2 Action.  The Fall X2 Action is part of the Reasonable and Prudent Alternative set forth in the United States Fish and Wildlife Service's December 15, 2008, biological opinion, which addressed impacts of the coordinated operations of the federal Central Valley Project and the State Water Project on the threatened Delta smelt.

Intended as a measure to improve fall habitat for Delta smelt growth and rearing, the Fall X2 Action would require sufficient Delta outflow to maintain a monthly average location of two parts per thousand salinity (X2) at or more westward than 74 kilometers from the Golden Gate Bridge in 2011, a "wet" water year.  Absent an injunction, "[t]he estimated cost to water users [of implementing Component 3] is 670,000 acre feet ('AF') of water if 2012 is a critically dry or dry year, or 300,000 AF if [2012] is a below normal or above normal year."  (Findings at p. 3.)

The court held that "the record reveals no support for a direct link between X2 and smelt abundance."  (Findings at p. 134.)  The court further explained:

The scientific evidence in support of imposing any Fall X2 action is manifestly equivocal.  There is essentially no biological evidence to support the necessity of the specific 74 km requirement set to be triggered in this 'wet' water year.  The agencies still 'don't get it.'  They continue to believe their 'right to be mistaken' excuses precise and competent scientific analysis for actions they know will wreak havoc on California's water supply.

(Findings at p. 139.)  "Balancing the imperiled status of the species, the equivocal and highly disputed support for the X2 action, and the even weaker and unjustified support for position X2 at 74 km, against the substantial and damaging water supply impact of doing so," the court enjoined the Fall X2 Action or any other attempt by Federal Defendants to set Fall X2 westward of 79km.  The court held that "limiting the X2 position to 80 km or 79 km achieves equity."  (Findings at p. 140.)

This latest ruling in the Consolidated Delta Smelt Cases follows a December 2010 decision by the court, in which it found that restrictions on Delta pumping under the biological opinion were not adequately justified, and a May 2011 final judgment that remanded the biological opinion and required issuance of a new biological opinion by December 1, 2013.

A complete copy of the court's Findings of Fact and Conclusions of Law can be found here.

The biological opinion for Delta smelt may be found here.

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

Governor to Propose Reductions in $11 Billion Water Bond

Governor Jerry Brown will take steps to reduce the size of the $11 billion water bond proposed as part of the 2009 state water legislation package but pulled from last year's statewide election, the Sacramento Bee reported.

The governor expressed concern that the bond will not pass in its current form, explaining: "We have to figure out a way to make [the bond] more politically acceptable," according to the Bee. 

A two-thirds vote of both houses of the Legislature is required to amend the water bond, which is scheduled to be on the November 2012 ballot.  Proposals to reduce costs have been suggested, but not brought to a vote.

If you have any questions about the water bond measure, please contact Rebecca Akroyd from our office, or the KMTG attorney with whom you normally consult.

Delta Stewardship Council to Discuss Delta Plan on August 26

The Delta Stewardship Council will meet on August 26, 2011, to receive a staff briefing on the fifth staff draft of the Delta Plan.  The meeting will be held in the Fresno/El Dorado room of the Holiday Inn Capitol Plaza, located at 300 J Street in Sacramento.

We previously reported on the release of the fifth staff draft of the Delta Plan in early August.  On Friday, staff will provide a report on the draft plan to the Council.  According to the Executive Officer's summary of the upcoming meeting:

Although [the draft plan] will be initially discussed by the Council at this meeting, we will have a more in depth review in September and the public comment period will continue through September 30, 2011. The pending Environmental Impact Report (EIR) is being reviewed by our attorneys and consultants, and scheduled for release on September 1, 2011. We anticipate a public hearing on the EIR in mid or late September. The 45-day comment period for the EIR will extend into October, 2011.

September, October, and November will be for final reviews and adjustments to the Delta Plan. As always, it is necessary to ensure the development process remains transparent and that all stakeholders are fully aware of the updated comment periods.

Public comments have begun to roll in on the fifth staff draft of the Delta Plan.  Comments have been received from the California Water Commission, the Regional Council of Rural Counties, and G. Fred Lee & Associates.

For more information concerning the Delta Plan, please contact K. Eric Adair from our office or the KMTG attorney with whom you normally consult.

California Supreme Court Issues Decision On Moss Landing Powerplant Expansion

On August 15, 2011, the California Supreme Court issued its decision in Voices of the Wetlands v. State Water Resources Control Board, et al., resolving a decade-long dispute over expansion of the Moss Landing Powerplant near Monterey Bay, California.

Dynegy Moss Landing LLC (Dynegy), the current owner of the facility, sought approval from the State Energy Commission to expand the plant and modify the cooling intake.  This expansion also required issuance or renewal of a cooling water intake permit from the Regional Water Quality Control Board.  An environmental group, Voices of the Wetlands, sued to challenge the Regional Board's issuance of the intake permit on the primary ground that it did not require the "the best technology available for minimizing adverse environmental impact" as required by federal Clean Water Act section 316(b).  The debate over technological and environmental standards, and the procedures for judicial and administrative review of the action in the trial and appellate courts, finally found its way to the California Supreme Court.

In a lengthy and detailed ruling, the Court addressed several important procedural and jurisdictional issues affecting such projects, including the following.  First, the Court rejected an argument raised by Dynegy and the Energy Commission as amicus curiae that the Warren-Alquist Act granted the Energy Commission and the Court exclusive jurisdiction over powerplant permitting decisions and any matters that could be raised in such proceedings, including water permitting deficiencies.  The Court held that the Warren-Alquist Act did not preclude the superior court from exercising jurisdiction over challenges to the Regional Board's decision to renew the power facility's cooling water intake permit.

Second, the Court upheld the superior court’s decision to order an interlocutory remand, in lieu of issuing the writ of mandate sought by petitioner.  On finding deficiencies in the Regional Board’s findings, the superior court had retained jurisdiction and ordered an interlocutory remand, allowing the Regional Board to receive new evidence and make new findings, after which the court entered judgment in favor of the Regional Board.  Despite protests that this procedure had improperly denied petitioner a meritorious judgment on the writ and prevented a challenge to the new findings, the Supreme Court ruled that the trial court was within its discretion under Code of Civil Procedure section 1094.5.

Third, the Court also ruled that the Regional Board properly utilized a cost-benefit analysis, and in particular a "wholly disproportionate" cost-benefit standard, to conclude that the existing cooling intake design, as upgraded to accommodate plant expansion, reflected "the best technology available for minimizing adverse environmental impact" under Clean Water Act section 316(b).

A complete copy of the decision can be found here.

If you have any questions regarding this decision, please contact Hanspeter Walter or the KMTG attorney with whom you normally consult.

Trial Court Decertifies EIR For Marin County Desalination Project

A Marin County Superior Court judge has ruled that further environmental review is required before a new desalination plant may be constructed to improve water supply availability in San Rafael, Mill Valley and other communities within the Marin Municipal Water District service area.

The August 16, 2011, ruling in North Coast Rivers Alliance et al. vs. Marin Municipal Water District Board of Directors (Case No. CV094809) grants a petition for a writ of mandate setting aside the water district's certification of an Environmental Impact Report (EIR) for a proposed desalination plant that would transform water from San Rafael Bay into drinking water to alleviate chronic water reliability issues during drought periods. 

The lengthy court ruling resolves a wide range of claimed deficiencies in the water district's EIR, rejecting some claims and embracing others.  The ruling finds that the district violated the California Environmental Quality Act because its EIR inadequately addressed environmental impacts with respect to: entrainment of aquatic life at the plant intake; visual impacts from a new water storage tank; consistency with local land use planning designations; seismic effects; noise impacts from construction; energy impacts; and greenhouse gas impacts.  The ruling found the EIR to be adequate with respect to many claims, including: effects from discharging brine through an existing municipal wastewater outfall; air quality; drinking water quality; and growth inducement.

A complete copy of the trial court's ruling may be found here.

If you have any questions regarding this decision, please contact Hanspeter Walter or the KMTG attorney with whom you normally consult.

Federal and State Agencies Announce Schedule for Bay Delta Conservation Plan Environmental Review and Effects Analysis

On August 11, 2011, the U.S. Department of the Interior, the U.S. Department of Commerce, and the California Natural Resources Agency announced an agreed-upon schedule for completing an effects analysis and a combined environmental impact statement/environmental impact report as part of the Bay Delta Conservation Plan.  That review is to be completed by June 2012.  The agencies also agreed upon a suite of alternatives for evaluation in identifying a proposed project.

“This is an aggressive schedule that will allow us to move clearly forward with BDCP and take the guess work out of next steps,” said California Secretary for Natural Resources John Laird.  “Meeting the dual goals of ecosystem restoration and water supply reliability demand a deep commitment from all parties involved.”

The schedule outlined at the August 11 public meeting targets May 2012 for release of the draft BDCP for public review and a June 2012 release of a draft EIR/EIS for public review.  The final BDCP is scheduled to be released in December 2012, followed by a February 2013 record of decision/notice of determination for the EIR/EIS.  The suite of alternatives to be evaluated vary in terms of the amount of acreage designated for habitat restoration and protection and the means of water conveyance.

The BDCP is a conservation plan for the Sacramento-San Joaquin River Delta, and is being developed pursuant to the federal Endangered Species Act and California Natural Communities Conservation Planning Act.  The BDCP is intended to help meet California’s co-equal goals for Delta management: water supply reliability and ecosystem restoration.  The public draft BDCP will include a set of actions to redesign and re-operate state and federal water projects in the Delta; restore native fish, wildlife, and plant habitat; and address other ecological stressors in the Delta such as invasive plant species, barriers to fish migration, and predation of native fish.  As a conservation plan, the BDCP is subject to environmental review under the California Environmental Quality Act and National Environmental Policy Act.

For more information concerning this topic, please contact K. Eric Adair from our office, or the KMTG attorney with whom you normally consult.

Related links:

Press release

Public meeting presentation 

BDCP milestones schedule handout

EIR/EIS fact sheet handout

August 9, 2011 California Natural Resources Agency correspondence

August 10, 2011 Department of the Interior correspondence

Coho Salmon Hearing Scheduled for August 16 in Sacramento

The California State Assembly’s Joint Committee on Fisheries and Aquaculture will convene an informational hearing on the topic of “Coho Salmon on the Brink: Understanding the Depth of the Crisis and Recovery Strategies.”  The hearing will be conducted on August 16 at 10:00 a.m. in room 4202 of the State Capitol in Sacramento.  It is also expected to be available online.

In a press release, Assemblymember Wesley Chesbro, Chair of the Joint Committee, stated:

"At one time Coho salmon in California were abundant across their entire range from, Santa Cruz to the Oregon border," Chesbro said. "Today they are in danger of disappearing, particularly from their southern range, and are listed under state and federal Endangered Species Acts. This hearing will examine the status of the Coho in California and identify strategies to bring back this important fishery. The Committee will hear testimony from fisheries experts, commercial and recreational fisherman, tribal representatives and other concerned Californians."

More than thirty speakers and panelists are scheduled to participate, including John McCammon, Director of California’s Department of Fish and Game, Rod McInnis, Regional Administrator for the Southwest Region of the National Marine Fisheries Service, and Catherine Kuhlman, Executive Director of the North Coast Regional Water Quality Control Board.  They will address a wide variety of topics affecting Coho, including current status and recovery efforts, population trends, stream flow problems and solutions, rearing habitat, and others.  The meeting agenda and presenter information are available here.  Related presentations and documents can be found here.

For more information concerning this hearing, please contact K. Eric Adair from our office, or the KMTG attorney with whom you normally consult.

California Department of Fish and Game Releases Draft Ecosystem Restoration Program for the Delta

On August 2, 2011 the California Department of Fish and Game (“DFG”) issued a draft restoration plan for the Sacramento-San Joaquin Delta, titled "Draft Ecosystem Restoration Program Conservation Strategy."  The Ecosystem Restoration Program ("ERP") identifies promising ecosystem restoration opportunities in the Sacramento-San Joaquin Delta and Sacramento and San Joaquin Valley Regions and provides the rationales for proposed restoration actions.

The ERP is designed to be part of a long-term comprehensive plan to restore ecosystem health and improve water management.  The ERP recognizes that the Delta Stewardship Council has also been directed to develop a Comprehensive Plan for the Delta ("Delta Plan") and notes that future coordination between DFG and the Delta Stewardship Council is planned.

DFG will accept comments on the current draft ERP until August 22, 2011.  Subsequently, it will develop a final draft in coordination with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service.

If you have any questions about the ERP, please contact Rebecca Akroyd from our office, or the KMTG attorney with whom you normally consult.

Related story: Delta Stewardship Council Releases Draft Version of Delta Plan

Related link: DFG Presentation to BDCP Public Meeting

$11 Billion Water Bond Likely To Appear On Ballot

The $11 billion water bond that was pulled from last year's statewide election will likely appear on a future ballot, according to State Senator Fran Pavley (D-Santa Monica).

According to online publication The Acorn, Senator Pavley acknowledged that "[a]ny change in that water bond, whether it’s split in half or reprioritized, requires a two-third vote from legislators. We have not yet heard the governor take a position on when this bond should go on the ballot."

The fate of proposed changes to the bond measure remains unknown.  Assembly Bill 157, for example, was introduced in January 2011 to cut the bond measure to $8.25 billion.  That bill is now pending in committee.  

If you have any questions about the water bond measure, please contact Rebecca Akroyd from our office, or the KMTG attorney with whom you normally consult.

Delta Stewardship Council Releases Draft Version of Delta Plan

On August 3, 2011, the Delta Stewardship Council issued a further (fifth) draft of the Delta Plan.  As we explained in our November 2009 Legal Alert on California's sweeping water legislation, the statutorily-created Delta Stewardship Council must adopt a Delta Plan by January 1, 2012, to accomplish ecosystem restoration and water delivery reliability for 25 million Californians and millions of acres of the world’s most productive farm land.  The 2009 water legislation describes coequal goals “of providing a more reliable water supply for California and protecting, restoring, and enhancing the Delta ecosystem” and explains that the legislation’s purpose is to “establish a governance structure that will direct efforts across state agencies to develop a legally enforceable 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.

The Delta Stewardship Council will accept comments on the current draft Delta Plan and the forthcoming Draft Environmental Impact Report (scheduled for release later this month) no later than September 30, 2011.  Council meetings will be announced on the Council's website and broadcast online.  Thereafter, two additional drafts of the Delta Plan are scheduled to be released in November and December 2011, respectively.  The final EIR is scheduled to be released in December 2011, with the seventh draft of the Delta Plan.

For more information concerning the Delta Plan, please contact K. Eric Adair from our office or the KMTG attorney with whom you normally consult.

Related links:

Fifth staff draft of the Delta Plan

Fifth staff draft Appendices

Fourth to fifth staff draft Policies and Recommendations Comparison Chart

Cover Letter from the DSC Executive Officer

Department of Water Resources to Hold Hearings on Agricultural Water Use Efficiency Regulations

The California Department of Water Resources ("DWR") has adopted an emergency regulation and begun a public comment and hearing process on formal regulations to implement agricultural water use efficiency requirements established in SB 7, part of the significant water legislation package adopted in 2009.  The new regulations require most agricultural water suppliers providing water to 25,000 irrigated acres or more (excluding acres receiving only recycled water), as well as some that provide water to as few as 10,000 acres, to "measure surface and groundwater that it delivers to its customers" pursuant to certain accuracy standards.  The suppliers must retain measurement records and report certain information regarding the records in their Agricultural Water Management Plan updates.  DWR will accept written comments on the proposed regulations through September 6, 2011, and will hold hearings in Sacramento on August 24, and in Fresno on September 8.  More information is available here.

The new regulations are the first step towards implementing the SB 7 agricultural water use requirements.  Next, DWR will prepare and adopt regulations requiring water suppliers to adopt pricing structures for customers based at least in part on volumetric deliveries.  KMTG will continue to track the developments.

If you have any questions regarding the new regulations, or regarding Agricultural Water Management Plans in general, please contact Eric Robinson or Andrew Tauriainen, or the KMTG attorney with whom you normally consult.

Department of Water Resources Unveils Online Submittal Tool for Urban Water Management Plans

The California Department of Water Resources ("DWR") has unveiled its Online Submittal Tool ("DOST") for Urban Water Management Plan ("UWMP") updates.  The DOST website is available here and the online user manual is available here.

The Urban Water Management Planning Act requires urban water suppliers to submit their 2010 Urban Water Management Plan updates in both printed and electronic form.  While suppliers are not required to submit their electronic copies through DOST, DWR states that UWMP updates submitted through DOST will receive priority review.

The Urban Water Management Planning Act requires most water suppliers to submit Urban Water Management Plans and periodic updates.  The most recent round of updates was due July 1, 2011.  In 2009, the California Legislature enacted SB 7, which significantly altered the scope of the information required in most Urban Water Management Plans, particularly regarding water conservation measures.  Water suppliers that fail to submit required Urban Water Management Plan updates will be ineligible for many types of DWR water management grants and loans, and may be at risk of a lawsuit.  More information is available here.

If you have any questions regarding Urban Water Management Plan updates, please contact Eric Robinson or Andrew Tauriainen, or the KMTG attorney with whom you normally consult.

Eastern District Orders Interim Remedies to Protect ESA-Listed Species

On July 26, 2011, Senior Judge Lawrence K. Karlton of California's Eastern District Federal Court issued a remedy order in an Endangered Species Act case.  In the case, South Yuba River Citizens League and Friends of the River v. National Marine Fisheries Service et al., environmental groups successfully proved their claim that a biological opinion issued by the National Marine Fisheries Service to the U.S. Army Corps of Engineers for operation of Englebright and Daguerre dams on the Yuba River was arbitrary and capricious.  The court required the agency to issue a legally sufficient opinion by December 12, 2011.  The environmental plaintiffs then filed a motion seeking additional physical protections for three ESA-protected species during the interim period before completion of the new opinion.  The court granted the motion in part and denied it in part.  Among the interim remedies ordered by the court were that the federal agencies prepare studies, make physical improvements, and conduct routine inspections of the water facilities so as to avoid jeopardizing the species.  The court's opinion can be found here.

If you have any questions concerning this topic, please contact Hanspeter Walter from our office, or the KMTG attorney with whom you normally consult.

KMTG Legal Alert: Sacramento Valley Farmers Have No Prior Right To Central Valley Project Water Under Area Of Origin Laws

Water users in the Sacramento Valley have no preferential right to delivery of Central Valley Project (“CVP”) water under the state’s so-called “area of origin” laws, according to the U.S. District Court in Fresno. The “area of origin” laws allow water users within an area where water originates to apply for new diversions, and to obtain priority for such diversions ahead of already existing diversions for export uses by the CVP and the State Water Project. However, this protection does not grant CVP contractors in the area of origin a right to a preferential allocation of water diverted and stored by the CVP. Instead, the Court ruled, the only preference granted by the area of origin laws applies when users in the area of origin seek a separate water right permit from the State Water Resources Control Board (“SWRCB”).

The August 2 summary judgment ruling rejects the claims of CVP contractors in the Sacramento Valley seeking higher deliveries of CVP water as against other CVP contractors in the San Joaquin Valley and San Francisco Bay Area. The Tehama Colusa Canal Authority (“TCCA”) initiated the litigation during the recent drought, during which the U.S. Bureau of Reclamation (“Bureau”) had reduced CVP water deliveries to much of the Sacramento and San Joaquin valleys. TCCA operates facilities delivering CVP water to 16 local water districts with CVP water service contracts, all of which serve primarily agricultural and some municipal users in the Sacramento Valley. TCCA claimed that reduced CVP water allocations to its members in times of water shortage, while still delivering CVP water to users in export areas, violated the area of origin protections. TCCA sought to establish an area of origin priority to CVP contract deliveries pursuant to California Water Code section 11460 et seq. By seeking a special priority to CVP contract water deliveries, TCCA’s suit threatened further reductions in CVP water deliveries to San Joaquin Valley and Bay Area users, particularly during droughts. Westlands Water District and the San Luis & Delta-Mendota Water Authority intervened in the litigation on behalf of the federal defendants.

The Court’s decision affirms the Bureau’s long-standing application of the area of origin laws. The Bureau has long recognized that these laws protect a priority for new diversions by users within the area of origin over diversions by the CVP, but the Bureau has further consistently maintained that these laws create no priority among CVP contractors to allocation of CVP water supplies. The ruling confirms the Bureau’s position that Sacramento Valley water service contractors have no priority to CVP supplies over CVP contractors located south of the Delta.

The Court’s 87-page ruling rejects all of TCCA’s claims and arguments and provides the most extensive analysis to date of the application of California’s area of origin laws to a federal water project. The Court’s ruling includes three major conclusions: (1) that the relevant federal and state statutes grant no priority to use of CVP water to TCCA’s members; (2) that TCCA’s claims for preference are contrary to the terms of the CVP water service contracts signed in 2005; and (3) that state court judgments pursuant to validation statutes and the doctrine of equitable estoppel barred the claims. Thus, the Court rejected TCCA’s claims on multiple grounds.

For a detailed discussion of the facts of this case, and the rationale behind the court's ruling, please see the full KMTG Legal Alert here.  The court's opinion may be found here.

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

Related story: District Court Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority

District Court Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority

On July 29, 2011, the United States District Court for the Eastern District of California issued a memorandum decision rejecting assertions by the Tehama-Colusa Canal Authority that California area of origin law entitled its member districts to priority deliveries of Central Valley Project water and that the Bureau of Reclamation acted in violation of law by delivering less than 100% of contract amounts during contractual "Conditions of Shortage." 

In an almost 90-page decision by Honorable Judge Oliver Wanger, the court denied the Tehama-Colusa Canal Authority's motion for summary judgment and granted Federal Defendants' and Defendant-Intervenors San Luis & Delta-Mendota Water Authority and Westlands Water District's cross-motions for summary judgment.  SLDMWA and Westlands are represented by KMTG in this case.

The district court's opinion in the case, Tehama-Colusa Canal Authority v. U.S. Dept. of the Interior, et al., Case No. 1:10-cv-0712 OWW DLB, may be found here.

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