Siskiyou Superior Court Rules that the Act of Diverting Water is Not Subject to Regulation Under California Fish and Game Code section 1602

On December 24, 2012, the Siskiyou Superior Court issued its decision in Siskiyou County Farm Bureau v. California Department of Fish and Game, Case No. SC SC CV 11-00418.  In the decision, the court finds that the Legislature did not intend to include the act of diverting water pursuant to a water right to be within the regulatory scope of Water Code section 1602, and enjoins the California Department of Fish and Game (DFG) from seeking to enforce against agricultural water diverters for failing to notify the Department of the diverter’s intention to exercise his water right absent alteration to the bed, bank, or stream.

A copy of the court’s decision is available here.

For additional information regarding this post, please contact Rebecca R. Akroyd or the KMTG attorney with whom you normally consult.

DWR Increases 2013 State Water Project Allocation to 40 Percent

The California Department of Water Resources (DWR), which had previously announced an initial State Water Project (SWP) contract allocation of 30 percent on November 29, 2012, increased that allocation on December 21, 2012 to 40 percent.

Early season storms have been identified as responsible for the increase in DWR’s water delivery estimate. These early season storms have replenished reservoirs and deepened the mountain snow pack. 

Lake Oroville and Shasta Lake, the State Water Project’s and federal Central Valley Project’s principal storage reservoirs, respectively, are each measuring over 100 percent of normal for the date.  Additionally, the mountain snowpack held 93 percent of average water content for the date. 

The SWP allocation is expected to further increase as more winter storms roll in.

A copy of DWR's official notice to SWP contractors can be found by clicking here.

For additional information regarding this post, please contact Rebecca R. Akroyd or the KMTG attorney with whom you normally consult.

Related Stories:

• Department of Water Resources Announces Initial SWP Allocation for 2013

Reminder: KMTG Will Host Presentation By Delta Watermaster This Friday

On Friday, December 14, from 12 p.m. to 1 p.m. (pacific time), Kronick Moskovitz Tiedemann & Girard (KMTG) will be hosting a brown-bag lunch MCLE event, entitled "What is the Delta Watermaster's Role in Addressing California's Water Issues? Learn the Answers from the Delta Watermaster Himself, Craig Wilson."

In 2009, the California State Legislature passed major water reform legislation. Among other things, that legislation created the position of Delta Watermaster. The Legislature's intent in creating the Delta Watermaster is hotly debated. Some say it was to crack down on allegedly illegal water diversions in the Delta. Others say the position’s focus on Delta water diversions simply distracts attention from other causes of decline in the Delta ecosystem. The purpose of this program is to hear from the Delta Watermaster, Craig Wilson, about the activities undertaken in the two-plus years since the position was created and about planned future activities. These activities range from compliance and enforcement actions, investigations of water use, and preparation of policy level reports on key water issues.

The event is sponsored by the Environmental Law Section and Natural Resources Subsection of the Real Propery Section of the California State Bar.  The event may be attended at the KMTG Sacramento office or by webinar.  Attendees are eligible for 1.0 MCLE credit.  The event will be moderated by Rebecca Akroyd of KMTG.

To register for the webinar, please visit the State Bar's website.

To attend in-person, at the KMTG Sacramento Office (400 Capitol Mall, 27th Floor, Sacramento, CA 95814), please e-mail Lindsey Ono at lono@kmtg.com

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

Department of Water Resources Announces Initial SWP Allocation for 2013

The California Department of Water Resources has announced an initial allocation of 30 percent of requested deliveries to State Water Project contractors in calendar year 2013.   This is not the final SWP allocation and it is almost certain to increase.  In fact, DWR's initial allocation – or water delivery estimate – is always conservative because it is made early in the storm season.   Because the state normally receives more than 90 percent of its snow and rain from December through April, the initial allocation generally increases as more storms bring rain and snow throughout the season.  A case in point is the series of heavy storms hitting Northern California this week, which should significantly increase water supply estimates.  DWR Director Mark Cowin stated “This week’s storms are giving us an early water supply boost, while at the same time putting our flood center on alert.”  Future postings will alert readers to DWR's updated SWP allocation estimates, which will take account of the water arriving in these storms. 

A copy of DWR's official initial SWP announcement for 2013 can be found by clicking here.

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

"Pattern and Practice" Lawsuit Challenges State’s CEQA Compliance in Permitting Fracking

The oil and gas industry’s increased use of hydraulic fracturing or “fracking” continues to gain attention in California.  Several non-profit organizations recently filed a lawsuit against the California Department of Conservation, Division of Oil, Gas and Geothermal Resources (“DOGGR”) seeking declaratory relief that the Department is violating the California Environmental Quality Act (“CEQA”) in the permitting of oil and gas wells, by failing to consider the environmental impacts of oil and gas development, including the effects of fracking. (Center for Biological Diversity et. al. v. Cal. Dept. of Conservation, Div. of Oil, Gas and Geothermal Resources [Super. Ct. Alameda County, Case No. RG12652054].) The complaint also seeks injunctive relief, to enjoin DOGGR from approving any further permits for oil and gas wells where fracking may occur.

Rather than challenge any specific permit, the complaint raises a fairly novel "pattern and practice" claim, alleging that over a dozen of DOGGR's past permitting actions violated the mandates of CEQA. However, the complaint admits DOGGR prepared and filed CEQA Notices of Exemption or Negative Declarations for each such permit. The normal method to challenge CEQA compliance for any of these actions would have been for these groups to file suit 30 or 35 days after DOGGR took the permitting action and filed notice of such. Accordingly, another reason this case bears watching is to see how this novel "pattern and practice" claim is resolved.

By stipulation, the parties agreed to an extension of the time for DOGGR to respond to the complaint. The DOGGR now has until December 17, 2012, to respond to the complaint.

For additional information regarding this case, visit the court’s website, then enter case number RG12652054 under the "Case Summary" page.

KMTG Will Host MCLE Presentation By Delta Watermaster

On Friday, December 14, from 12 p.m. to 1 p.m. (pacific time), Kronick Moskovitz Tiedemann & Girard (KMTG) will be hosting a brown-bag lunch MCLE event, entitled "What is the Delta Watermaster's Role in Addressing California's Water Issues? Learn the Answers from the Delta Watermaster Himself, Craig Wilson."

In 2009, the California State Legislature passed major water reform legislation. Among other things, that legislation created the position of Delta Watermaster. The Legislature's intent in creating the Delta Watermaster is hotly debated. Some say it was to crack down on allegedly illegal water diversions in the Delta. Others say the position’s focus on Delta water diversions simply distracts attention from other causes of decline in the Delta ecosystem. The purpose of this program is to hear from the Delta Watermaster, Craig Wilson, about the activities undertaken in the two-plus years since the position was created and about planned future activities. These activities range from compliance and enforcement actions, investigations of water use, and preparation of policy level reports on key water issues.

The event is sponsored by the Environmental Law Section and Natural Resources Subsection of the Real Propery Section of the California State Bar.  The event may be attended at the KMTG Sacramento office or by webinar.  Attendees are eligible for 1.0 MCLE credit.  The event will be moderated by Rebecca Akroyd of KMTG.

To register for the webinar, please visit the State Bar's website.

To attend in-person, at the KMTG Sacramento Office (400 Capitol Mall, 27th Floor, Sacramento, CA 95814), please e-mail Lindsey Ono at lono@kmtg.com

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

Appellate Court Holds That Regional Water Quality Control Board Approval Of Discharge Permit For Dairies Fails To Satisfy Anti-degradation Policy

In a decision filed on November 6, 2012, the Third District Court of Appeal held that the Central Valley Regional Water Quality Control Board (“Regional Water Board”) failed to comply with the State’s anti-degradation policy in issuing a waste discharge order regulating approximately 1,600 dairies.  In Asociacion de Gente Unida Agua v. Central Valley Regional Water Quality Control Board (Case No. C066410), the court held that the State’s anti-degradation policy (State Water Resources Control Board Resolution No. 68-16) applied to the waste discharge order (“Order”), because it allowed ongoing dairy discharges that might degrade high quality groundwater.  Although the Order made certain findings with respect to anti-degradation policy compliance, the court held that such findings were not supported by substantial evidence in the administrative record.  The court also held that the record failed to demonstrate that the Order would require the dairies to carry out the “best practicable treatment or control” required by the anti-degradation policy.

The appellate court remanded to the trial court with directions to grant the petition for writ of mandate and to issue a writ requiring the Regional Water Board to comply with the State’s anti-degradation policy.

For more information regarding this court decision, please contact Eric Robinson or Elizabeth Leeper or the KMTG attorney with whom you normally consult.

Yuba County Water Agency Gives 60-Day Notice of Intent to Sue Federal Government Under Endangered Species Act

The Yuba County Water Agency ("YCWA") today delivered a 60-day notice of intent to sue to the National Marine Fisheries Service ("NMFS"), also known as NOAA Fisheries, and the U.S. Army Corps of Engineers ("Corps").  The letter declares that these agencies have violated the Endangered Species Act ("ESA"), the Administrative Procedure Act ("APA"), and the National Environmental Policy Act ("NEPA").  The violations stem from the issuance and intended implementation of a 2012 biological opinion for the operation and maintenance of Englebright Dam and Reservoir and Daguerre Point Dam on the Yuba River. 

ESA issues on the Yuba River have been brewing for several years and have apparently reached a boil.  An earlier 2007 biological opinion issued by NMFS concluded that the operations of Englebright and Daguerre dams would not jeopardize the Central Valley spring-run Chinook salmon, Central Valley steelhead, and southern distinct population segment of the North American green sturgeon.  The 2007 BiOp was challenged as insufficiently protective by environmental groups.   In July 2010, the United States District Court for the Eastern District of California (J. Karlton) ruled that NMFS had not supported its conclusions and invalidated the 2007 BiOp, sending NMFS back to the drawing board to prepare a new one.  (South Yuba River Citizens League v. NMFS, 723 F.Supp.2d 1247) 

NMFS issued the new BiOp in February of 2012.   In the 2012 BiOp, NMFS reversed course and concluded that the proposed operations of Englebright and Daguerre would jeopardize the listed species and adversely modify their critical habitat.  Consequently, to comply with the ESA, the 2012 BiOp imposed requirements known in ESA parlance as reasonable and prudent alternatives ("RPA"), ostensibly to offset the jeopardizing effects of the action.  The RPA was extensive.  A separate press release and Frequently Asked Questions pamphlet distributed by YCWA indicate that the cost of implementing the RPA could be as high as $1 billion.  YCWA's press release and letter also fault NMFS for failing to adequately involve affected water users on the Yuba River and the Corps in the ESA consultation.

YCWA's 60-day notice letter states that the 2012 biological opinion's fundamental flaw is that it treats as effects of the proposed action numerous conditions and factors that are actually part of the environmental baseline.  Under the ESA regulations, an action agency may be held accountable only for effects caused by the discretionary portions of its proposed action.  Effects of the action therefore, do not include non-discretionary actions the agency must take because of prior legal, contractual, or other requirements.  Effects of the action also can not include the effects of other factors or actions that are not caused by agency's proposed action.  For example, the existence of a dam authorized by Congress and constructed years before the ESA was passed may impede salmonid passage upstream, but the existence of the dam and the effects of its existence (e.g., foreclosing access to upstream spawning grounds) are not effects of the action. 

The ESA requires that a 60-day notice be delivered to the agencies prior to filing a citizen suit to enable the agencies to remedy their violations without court intervention.  In its press release, however, YCWA indicates that it still seeks and hopes to cooperatively work with NMFS and the Corps to resolve these issues outside of the courthouse.  Time will tell if such efforts are fruitful.

YCWA's letter, press release, and FAQ can be viewed by clicking the following links:

60-day notice letter

YCWA press release

YCWA FAQ

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

KMTG Legal Alert: Development Project EIR Set Aside Due To Inadequate Water Supply Assessment, Deferred Mitigation

In Preserve Wild Santee et al. v. City of Santee et al. (--- Cal.App.4th ---, Fourth Appellate District Case No. D055215 [October 19, 2012]), the Court of Appeal for California’s Fourth Appellate District held that the environmental impact report (“EIR”) for a nearly 1,400-unit residential development project violated the California Environmental Quality Act (“CEQA”) because it failed to provide an adequate water supply analysis and improperly deferred mitigation for biological impacts. The court further held that not all EIR inadequacies require a project approval and EIR certification to be entirely vacated.

The decision in Preserve Wild Santee addresses a range of recurring CEQA compliance issues, like cumulative biological impacts involving listed species, deferred mitigation and the scope of judicial remedies when CEQA documents are found to be partially inadequate.  For a detailed summary of the  decision, please see the full KMTG Legal Alert here.

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

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

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

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

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

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

Related Stories:

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

Judge Declares Russian River Frost Protection Regulation Constitutionally Void

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

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

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

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

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

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

Related Stories:

Judge Stays Enforcement of Russian River Frost Control Regulation

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

State Water Resources Control Board Issues Draft Order Staying Provisions of Central Coast Agricultural Order

On September 10, 2012, the State Water Resources Control Board (“State Board”) issued a Draft Order which, if adopted, will stay certain provisions of the agricultural order and related monitoring and reporting program orders issued by the Central Coast Regional Water Quality Control Board (“Regional Board”). The State Board received five petitions for review of the Regional Board’s Order No. R3-2012-0011, Conditional Waiver of Waste Discharge Requirements for Discharges from Irrigated Lands (“Agricultural Order”), and Monitoring and Reporting Program Orders Nos. R3-2012-0011-01, R3-2012-0011-02, and R3-2012-0011-03 (“Monitoring and Reporting Orders”). A copy of the Agricultural Order and Monitoring and Reporting Orders are available here. In addition to petitioning for State Board review of those orders, the petitioners also requested that the State Board stay all or certain provisions of the orders, pending State Board review.

The Draft Order stays the following requirements and compliance deadlines of the Agricultural Order and Monitoring and Reporting Program Orders:

• the compliance deadline for installation of backflow prevention devices (stayed until March 1, 2013);
• the requirements related to containment structures (stayed until the petitions for review are resolved);
• the requirements related to practice effectiveness verification (stayed until the petitions for review are resolved);
• the requirements related to calculation of nitrate loading risk factors and crop nitrogen uptake (stayed until the petitions for review are resolved); and
• the compliance deadline for photo monitoring of streams and riparian and wetland area habitat (stayed until June 1, 2013).

The Draft Order states that the State Board expects to resolve the petitions for review by October 2013.

The comment deadline on the Draft Order will be September 14, 2012, by noon. The final State Board stay order is scheduled for adoption at the State Board’s September 19, 2012, public meeting. 

For additional information regarding the State Board’s Draft Order, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult. Additional information is also available through the State Board website.

Related Story:

State Water Resources Control Board Decides To Stay Provisions Of Central Coast Agricultural Order

Delta Stewardship Council Will Consider Proposed Final Draft Of Delta Plan

The Delta Stewardship Council (Council) will consider the proposed final draft of the Delta Plan at its September 13, 2012, meeting.  The Delta Plan is a comprehensive, long-term management plan for the Sacramento-San Joaquin River Delta (Delta), consisting of a mix of legally-enforceable “policies” and guiding “recommendations.”  State and local agencies undertaking actions covered by the Delta Plan will be required to file a certification of consistency with the Council, to ensure that the “covered action” is consistent with the applicable Delta Plan policies.

For more information concerning the Delta Plan, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.

Related Story:

Delta Stewardship Council To Discuss Final Staff Draft Of Delta Plan

Ninth Circuit Heard Oral Argument in the Consolidated Delta Smelt Cases

On September 10, 2012, the United States Court of Appeals for the Ninth Circuit heard approximately an hour of oral argument in the Consolidated Delta Smelt Cases appeals, Ninth Circuit Case Nos. 11-15871, 11-16617, 11-16621, 11-16623, 11-6624, 11-16660, 11-16662, and 11-17143.  The lead appeal is also referred to as San Luis & Delta-Mendota Water Authority, et al. v. Salazar, et al.  An audio recording of the oral argument is available here.

The Ninth Circuit panel, comprised of Ninth Circuit judges Johnnie Rawlinson and Jay Bybee, and Eighth Circuit Judge Morris Arnold (sitting by designation), heard oral argument from Department of Justice attorney Robert Oakley (representing Federal defendants), Natural Resources Defense Council attorney Katherine Poole (representing the Natural Resources Defense Council and The Bay Institute), Best Best & Krieger LLP attorney Gregory Wilkinson (representing the State Water Contractors), Kronick Moskovitz Tiedemann & Girard attorney Daniel O’Hanlon (representing San Luis & Delta-Mendota Water Authority and Westlands Water District), and California Deputy Attorney General Clifford Lee (representing the California Department of Water Resources). 

The appeals are now under submission and the parties are awaiting the Ninth Circuit’s opinion. 

Related Stories:

Oral Argument Scheduled for Ninth Circuit Appeals in the Delta Smelt Consolidated Cases
Ninth Circuit Dismisses "Fall X2" Appeal for Mootness

State Water Resources Control Board Decides To Stay Provisions Of Central Coast Agricultural Order

Following its August 30, 2012 hearing, the State Water Resources Control Board (“State Board”) decided to stay or extend the compliance deadline for some provisions of the agricultural order and related monitoring and reporting program orders issued by the Central Coast Regional Water Quality Control Board (“Regional Board”). The State Board received five petitions for review of the Regional Board’s Order No. R3-2012-0011, Conditional Waiver of Waste Discharge Requirements for Discharges from Irrigated Lands (“Agricultural Order”), and Monitoring and Reporting Program Orders Nos. R3-2012-0011-01, R3-2012-0011-02, and R3-2012-0011-03 (“Monitoring and Reporting Orders”). A copy of the Agricultural Order and Monitoring and Reporting Orders are available here. In addition to petitioning for State Board review of those orders, the petitioners also requested that the State Board stay all or certain provisions of the orders, pending State Board review.

The Agricultural Order regulates both landowners and operators of irrigated lands within the Central Coast region where water is applied for producing commercial crops, from which runoff could affect water quality. Under the Agricultural Order, growers are categorized in tiers, based on the risk their farms pose to ground and surface water. The Agricultural Order scales the monitoring and reporting requirements into three tiers and imposes more requirements for the higher tiers. Each tier has a corresponding Monitoring and Reporting Order, which specifies the monitoring and reporting requirements that apply to that tier. All of the tiers are required to develop and implement a Farm Water Quality Management Plan and to collect monthly water samples from receiving waters. Several of the monitoring and reporting requirements have a compliance deadline of October 1, 2012.

After the August 30th hearing regarding the stay requests, the State Board decided to stay or extend the deadline for some provisions of the Agricultural Order and the Monitoring and Reporting Orders, but the State Board did not indicate which provisions would be stayed or extended. The State Board will release a draft order regarding its stay decision on September 10, 2012. The comment deadline on the draft order will be September 14, 2012, by noon. The final State Board stay order is scheduled for adoption at the State Board’s September 19, 2012, public meeting.

For additional information regarding the State Board’s stay decision, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult. Additional information is also available through the State Board website.

Seventeen Central Valley Levee Systems Lose Eligibility For Federal Rehab Assistance

On August 23, 2012, the U.S. Army Corps of Engineers (“Corps”) announced that 17 Central Valley levee systems are now ineligible for federal rehabilitation assistance, after a temporary agreement between the Corps and the state of California extending eligibility for deficient levees expired in June.  The 17 levee systems received unacceptable maintenance ratings in their most recent Corps inspections.  To regain active status in the Corps Rehabilitation and Inspection Program, the California Central Valley Flood Protection Board, as the manager of levee systems, must either fix the deficiencies identified by the Corps or submit a system-wide improvement framework that outlines a long-term strategy for bringing the levees into compliance with the Corps’ standards.

As reported in one news article, approximately 180 miles of levees are now ineligible for federal rehabilitation assistance should they be damaged in a flood, including 40 miles of levees that protect most of the Sacramento area population.

For additional information regarding the affected levee systems, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.

Related Story:
Central Valley Flood Protection Board Receives Public Draft 2012 Central Valley Flood Protection Plan

Ninth Circuit Dismisses "Fall X2" Appeal for Mootness

On August 23, 2012, the United States Court of Appeals for the Ninth Circuit issued an order in San Luis & Delta Mendota Water Authority, et al. v. Salazar, et al., Appeal No. 11-17143, granting Appellees' motion to dismiss the appeal. 

The Fall X2 Action is an action in the Reasonable and Prudent Alternative identified in the 2008 U.S. Fish & Wildlife Service biological opinion regarding the effects of the long-term operation of the Central Valley Project and State Water Project on the delta smelt.  In the August 23, 2012 order, the Ninth Circuit held: "Because the implementation period for the Fall X2 Action has passed, any challenge to the district court's injunction is moot." 

As a result of the order, the scheduled oral argument for the two Delta Smelt Consolidated Cases appeals will no longer include oral argument on the propriety of the district court's August 31, 2011 decision that enjoined the federal government from implementing the Fall X2 Action, which, absent the injunction, would have restricted California's water supply by hundreds of thousands of acre feet.

Related Stories:

• Oral Argument Scheduled for Ninth CircuitAppeals in the Delta Smelt Consolidated Cases
• Federal District Court Enjoins Water Supply Restrictions Under Delta Smelt Biological Opinion

 

State Board Posts Public Comments on Delta Ecosystem Change and the Low Salinity Zone

The State Water Resources Control Board has posted public comments that it received from interested persons for Workshop 1 (Ecosystem Change and the Low Salinity Zone) related to the Comprehensive Review of the Bay-Delta Plan.

The comments are posted on the Board's website and can be accessed by clicking here. 

For additional information regarding the Comprehensive Review of the Bay-Delta Plan, please contact Hanspeter Walter, Cliff Schulz, or the KMTG attorney with whom you normally consult.
  

Court Orders State Water Resources Control Board To Vacate Instream Flow Policy For Northern Coastal Streams

On August 9, 2012, the Alameda County Superior Court issued its Statement of Decision and Judgment in the case of Living Rivers Council v. State Water Resources Control Board (Case No. RG10-543923). The Living Rivers case challenged the adequacy of the California Environmental Quality Act (“CEQA”) review performed by the State Water Resources Control Board (“State Water Board”) in connection with its Policy For Maintaining Instream Flows In Northern California Coastal Streams (“Flow Policy”). The court found: 1) that the State Water Board failed to evaluate and disclose a feasible mitigation measure; and 2) that the State Water Board failed to disclose the limited mitigation measures available to address the indirect environmental impacts of the Flow Policy. Due to these deficiencies in the State Water Board’s CEQA review, the court ordered the State Water Board to vacate its approval of the Flow Policy.

Background
In late 2007, the State Water Board released a draft Flow Policy to meet its statutory requirement to adopt principles and guidelines for maintaining instream flows in northern coastal streams, as part of a state policy for water quality control for the purposes of water right administration. The Flow Policy, as a policy for water quality control, is a regulatory program that is exempt from CEQA’s requirements to prepare either an environmental impact report or a negative declaration. Therefore, compliance with CEQA required the State Water Board to prepare a substitute environmental document (“SED”) for the draft Flow Policy. After distributing the draft Flow Policy and SED and responding to comments on those documents, the State Water Board certified the SED as compliant with CEQA and adopted the Flow Policy on May 4, 2010.

The Flow Policy applies to applications to appropriate water from coastal streams within Marin, Sonoma and portions of Napa, Mendocino, and Humboldt Counties. The Flow Policy prescribes protective measures regarding the season of diversion, minimum bypass flows, and maximum cumulative diversion rates for the protection of fishery resources. The SED found that the Flow Policy could result in potentially significant indirect environmental impacts, including increased groundwater pumping, in response to the Flow Policy’s limitations on stream diversions.

Living Rivers Decision
In evaluating the adequacy of the SED prepared by the State Water Board, the Living Rivers court found that the State Water Board failed to satisfy the substantive provisions of CEQA. The court found that the SED failed to evaluate and disclose a potentially feasible mitigation measure for the anticipated increased use in percolating groundwater resulting from the Flow Policy. In addition, the court found that the SED failed to effectively disclose the State Water Board’s limited ability to monitor and mitigate the impact of the anticipated increase in the use of percolating groundwater. To remedy the identified CEQA inadequacies, the court ordered the State Water Board to vacate its certification of the SED and its approval of the Flow Policy. However, the court noted that the State Water Board retains its regulatory authority to issue water permits with conditions, and therefore, the Board could treat the vacated Flow Policy as a “guideline” for processing water right applications until the CEQA process is completed.

Conclusion
The Living Rivers judgment orders the State Water Board to disclose the implications of its limited regulatory jurisdiction over percolating groundwater. To satisfy the court’s writ of mandate, the State Water Board will need to disclose the scope of its regulatory authority over percolating groundwater and also disclose that the increased groundwater use resulting from the Flow Policy is unlikely to be subject to future CEQA review. The amended SED will likely provide a useful articulation of the State Water Board’s regulatory jurisdiction over percolating groundwater.

For additional information regarding the Flow Policy or the Living Rivers case, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult. Additional information regarding the Flow Policy is also available here.

Revised Schedule For Public Workshops On Bay-Delta Plan Review

Yesterday, the State Water Resources Control Board ("State Water Board") issued a Revised Notice Of Public Workshops And Request For Information for the comprehensive review and update to the 2006 Water Quality Control Plan for the San Francisco/Sacramento-San Joaquin Delta Estuary ("Bay-Delta Plan").  Public Workshop 2, on the topic of "Bay-Delta Fishery Resources," is now scheduled for October 1 and 2, 2012, in the Coastal Hearing Room.  Any written information to be considered by the State Water Board for Workshop 2 must be emailed to the State Water Board by noon on Friday, September 14, 2012. Public Workshop 3, on the topic of "Analytical Tools for Evaluating Water Supply, Hydrodynamic and Hydropower Effects," is now scheduled for November 13 and 14, 2012, in the Sierra Hearing Room.  Any written information to be considered by the State Water Board for Workshop 3 must be emailed to the State Water Board by noon on Friday, October 26, 2012.

The schedule for Public Workshop 1, on the topic of "Ecosystem Changes and the Low Salinity Zone," remains unchanged and is scheduled for Wednesday, September 5, 2012, in the Coastal Hearing Room.  The deadline for written documents to be considered for Workshop 1 was today, August 17th, at noon. All the public workshops are scheduled for 9:00 a.m. to 5:00 p.m. at the Environmental Protection Agency Building, located at 1001 I Street in Sacramento.

Additional information regarding the Comprehensive Review of the Bay-Delta Plan is available here.  If you have questions regarding the Comprehensive Review of the Bay-Delta Plan, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.

Ninth Circuit Issues Opinion Regarding ESA Consultation & NEPA Review

In an opinion issued on August 13, 2012, the federal Ninth Circuit Court of Appeals held that the issuance of an annual operating plan for the Glen Canyon Dam by the Bureau of Reclamation (“Reclamation”) is not subject to the consultation requirements of the Endangered Species Act (“ESA”), nor the environmental review requirements of the National Environmental Policy Act (“NEPA”).

The appeal in Grand Canyon Trust v. U.S. Bureau of Reclamation (9th Cir. Case No. 11-16326) involved a challenge to Reclamation’s issuance of an annual operating plan for operation of the Glen Canyon Dam, which impounds the Colorado River. Pursuant to the Colorado River Basin Project Act of 1968 (“CRBPA”), the Secretary of the Interior (“Secretary”) is required to adopt criteria for the long-term operation of the Glen Canyon Dam (“Dam”) and to transmit annual operating plans (“AOPs”) for the Dam to Congress and the Colorado River Basin States. The AOPs must describe the actual operation under the adopted criteria for the preceding water year and the anticipated project operation for the current water year.

In Grand Canyon Trust, the primary issues on appeal were: 1) whether the issuance of an AOP for the Glen Canyon Dam is a discretionary act that triggers the ESA’s consultation requirement; and 2) whether the issuance of an AOP is a major federal action that triggers NEPA’s environmental review requirements. Under section 7(a)(2) of the ESA, a federal agency must consult with the appropriate fish and wildlife agency if the agency action may affect any species listed under the ESA. Under NEPA, a federal agency must prepare an environmental impact statement (“EIS”) for every major federal action significantly affecting the quality of the human environment.

The factual history of the Grand Canyon Trust case is critical to understanding the Court’s holdings. In 1995, Reclamation prepared an EIS in which it evaluated several operational alternatives for managing the Dam, including a modified low fluctuating flow (“MLFF”) regime and a seasonally-adjusted steady flow regime. In 1996, the Secretary selected MLFF as the Dam’s specific operating criteria in a NEPA-required Record of Decision. In 2008, the Grand Canyon Trust filed its original complaint against Reclamation, alleging that Reclamation violates the ESA by not consulting with FWS on the development of each AOP for the Dam and that Reclamation violates NEPA by not preparing an environmental assessment (“EA”) or EIS for each AOP. After three summary judgment decisions and two remands by the district court, the issue of whether an AOP is subject to NEPA and the ESA consultation requirement finally reached the Ninth Circuit.

ESA Section 7 Consultation
In addressing the issue of whether the issuance of an AOP is a discretionary act that triggers the ESA’s consultation requirement, the Court began its analysis by stating the rule that the consultation requirement only applies to federal action in which there is discretionary Federal involvement or control. The Court concluded that in issuing an AOP, Reclamation does not exercise discretion signifying agency action requiring ESA consultation because the CRBPA requires Reclamation to prepare an AOP which describes Dam operations under the adopted criteria. The Court emphasized that Reclamation does not have the discretion to select different operating criteria for the Dam by saying so in an AOP because Reclamation has a specific, non-discretionary obligation to implement the adopted criteria, which in this case, is the MLFF selected in the 1996 Record of Decision. Thus, the Court held that Reclamation does not violate the ESA by issuing an AOP without formally consulting with the Fish and Wildlife Service because Reclamation does not exercise discretion that inures to the benefit of a listed species in preparing an AOP.

NEPA Environmental Review
In addressing the issue of whether the issuance of an AOP is a major federal action triggering NEPA review, the Court stated that an agency must prepare an EIS if an ongoing project undergoes changes which themselves amount to “major Federal actions.” However, the Court concluded that Reclamation is not making material changes to the operating criteria for the Dam when it prepares and issues an AOP. The Court stated that the time for Reclamation to take a “hard look at the environmental consequences” should be at the points where Reclamation established the operating criteria for the Dam, or embarks on some significant shift in direction in operating policy, not merely when there is routine and required annual reporting. Thus, the Court held that AOP preparation does not trigger compliance with NEPA’s procedural requirements.

Conclusion
The Grand Canyon Trust decision provides instructive Ninth Circuit authority regarding the type of federal actions which trigger the ESA consultation requirement and NEPA review. The decision warrants careful review by any federal litigator or administrative practitioner.

For additional information regarding the Grand Canyon Trust decision, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.

Pacific Legal Foundation Files Petition To De-List Killer Whale

In a petition to de-list filed today, attorneys from the Pacific Legal Foundation assert that the 2005 listing of the Southern Resident killer whale distinct population segment (“DPS”) as endangered under the Endangered Species Act (“ESA”) is illegal. The petition, filed on behalf of a non-profit organization and two San Joaquin Valley farms, petitions the Department of Commerce and the National Oceanic and Atmospheric Administration to de-list the Southern Resident killer whale DPS as endangered. The Southern Resident killer whale DPS was listed as endangered in 2005 and is the only population of killer whale that is listed under the ESA.

The principal argument asserted in the petition to de-list is that the Southern Resident killer whale DPS is a DPS of a subspecies, and the listing of a DPS of a subspecies is not authorized by the ESA. The petition asserts that because the ESA only authorizes the listing of a species, subspecies, and DPSs of species, the listing of a DPS of a subspecies is not authorized.

In addition, the petition argues that the National Marine Fisheries Service (“NMFS”) should de-list the Southern Resident DPS because “the subspecies designation on which it is founded is without scientific basis.” The petition asserts that NMFS’s designation of a North Pacific resident subspecies is not supported by genetic data, and that many of the differences between populations of killer whales can be explained as learned behaviors or responses to varying environmental conditions, rather than genetic differences.

Two of the petitioners are farms located in the San Joaquin Valley, who suffered severe water supply cutbacks in 2009, “in part due to the protections afforded the killer whale under the ESA.” The Southern Resident DPS was one of the species considered in a 2009 Biological Opinion issued by NMFS, which concluded that the ongoing operations of the State Water Project (“SWP”) and the federal Central Valley Project (“CVP”) would jeopardize the continued existence of several species, including the Southern Resident killer whale. That Biological Opinion, in part, resulted in severe water supply cutbacks to the farmers that rely on water from the SWP and CVP. The petition identifies “the delisting of the killer whale [as] one necessary step in preventing further catastrophic water cutbacks.”

The 2009 Biological Opinion was found to be arbitrary and capricious by a federal district court and was remanded back to NMFS. See Consolidated Salmonid Cases, 791 F. Supp. 2d 802 (E.D. Cal. 2011). That district court decision is now the subject of multiple appeals before the Ninth Circuit Court of Appeal. (Ninth Circuit Case Nos. 12-15144, 12-15289, 12-15290, 12-15291, 12-15293, and 12-15296.)

For additional information regarding the petition to de-list the killer whale, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.  Additional information regarding the listing of Southern Resident DPS is available here.

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

Governor Announces Preferred Water Conveyance Alternative For Bay Delta Conservation Plan

On July 25, 2012, California Governor Edmund G. Brown Jr., Secretary of the Interior Ken Salazar, and National Oceanic and Atmospheric Administration Assistant Administrator for Fisheries Eric Schwaab announced a preferred alternative in the ongoing Bay Delta Conservation Plan (BDCP).

An overview of the preferred alternative is described in the San Jose Mercury News. Under the preferred alternative, two large, side-by-side underground tunnels, each 33 feet in diameter, would transport fresh water 37 miles from the Sacramento River, under the Sacramento-San Joaquin River Delta (Delta), to federal and state pumps at Tracy. Then, the water would flow into canals operated by the State Water Project and the Central Valley Project from the Bay Area to San Diego, to irrigate three million acres of farmland. The tunnels would cost an estimated $14 billion to build, and would be financed by farmers and other water users that stand to benefit from the project. The preferred alternative also focuses on restoring the Delta.

The preferred alternative’s conveyance facilities would rely on gravity flow to increase energy efficiency and decrease environmental impacts. The proposed total capacity of the water intake facilities was reduced from an earlier proposal of 15,000 cubic feet per second (cfs) to 9,000 cfs. Officials explained that the preferred alternative will be designed to help restore endemic species, protect water quality, and enhance the reliability of water supplied from the State Water Project and Central Valley Project.

All officials stressed the Delta’s ongoing problems, such as habitat loss, threats to levee stability, and reduced water supply. They indicated that resolving these issues required a balancing of economic concerns and environmental interests. Underscoring the need for reevaluating California’s current water system, Secretary Salazar stated, “Through our joint federal-state partnership, and with science as our guide, we are taking a comprehensive approach to tackling California’s water problems when it comes to increasing efficiency and improving conservation.” The comprehensive approach unveiled today includes consideration of science, conservation, governance, financing, adaptive management, sustaining Delta communities, protecting upstream water users, and improving water management State-wide.

The details announced today are not final and other alternatives will still be evaluated in the BDCP process. The agencies intend to issue a draft Bay Delta Conservation Plan and Environmental Impact Report/Environmental Impact Statement this fall. Once the proposed project is fully defined, it will be submitted for public comment, and review under the federal Endangered Species Act (ESA), California’s Natural Community Conservation Planning Act (NCCPA), and NEPA/CEQA.

Additional information regarding the proposed revisions to the BDCP is available here.  For further information regarding the BDCP, please contact Hanspeter Walter, Rebecca Akroyd, or Elizabeth Leeper, or the KMTG attorney with whom you normally consult.

(This blog post was drafted by KMTG Summer Associate Jessica Almendarez, with assistance from the blog editors.)

DWR Releases New State Water Project Delivery Reliability Report

The California Department of Water Resources (DWR) has released the final version of the 2011 State Water Project (SWP) Delivery Reliability Report.  The report is the latest in a series of reports that began in 2002, which report the delivery reliability of California's State Water Project, the largest state-built and operated water and power system in the United States.  The SWP provides at least some of the water consumed by 25 million Californians and used to irrigate about 750,000 farmland acres. Of SWP water deliveries, about 70 percent goes to cities and 30 percent to farms.

The newest report updates estimates of current (2011) and future (through 2031) SWP deliveries, taking into account pumping restraints to protect Delta smelt, salmon, and other fish species as well as variations in precipitation and impacts of climate change.  The perspective applied assumes no significant changes will be made to convey water past the Sacramento-San Joaquin Delta or to store the more variable runoff expected with climate change.

Due to increased public interest in pumping water from the Delta, a new chapter focuses specifically on SWP exports at the system's Harvey O. Banks Pumping Plant in the Delta. The report documents that the SWP continues to be subject to delivery reductions caused by fishery agency Biological Opinions intended to safeguard threatened and endangered fish.

While the report is very detailed and includes the results of extensive computer modeling, a few basic conclusions in the executive summary include:

1. Estimated average annual SWP exports under 2011 conditions are 12% less than the estimates made for 2005 conditions.
2. Estimated average annual SWP exports decrease 86,000 acre-feet per year (about 3%) between the existing- and future-conditions scenarios.

DWR also states that California's population has grown rapidly in recent years.  From 1990 to 2005, the state's population increased from about 30 million to about 36.5 million. Based on this trend, California's population could exceed 47.5 million by 2020.  By 2050, the population could rise to nearly 60 million -- virtually double the 1990 population -- according to trends cited in the 2009 Update to the California Water Plan.

The final 2011 State Water Project Delivery Reliability Report is available from DWR online here.

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

Chief of DFG Fisheries Branch Identifies Poor Ocean Conditions As Primary Cause Of Recent Central Valley Chinook Salmon Decline

In a recent interview for the Sacramento Bee, Stafford Lehr, fisheries branch chief for the California Department of Fish and Game, stated that the Central Valley fall-run of Chinook salmon is expected to be “very healthy.” The fishing season for Central Valley rivers opened on July 16th for recreational anglers. State and federal officials estimate more than 800,000 adult Central Valley Chinook salmon will make the spawning run this year, a drastic improvement from the historic low of approximately 40,000 salmon in 2009.

Mr. Lehr attributed the increased salmon numbers to improved ocean conditions, stating: “the ocean conditions improved significantly, which increased food availability and adult survival out in the ocean.” When asked what caused the drastic decline in the fall-run Chinook salmon, starting in 2007, Mr. Lehr responded: “Among federal and state fishery managers, there’s consensus that it was ocean conditions—very poor ocean conditions—that did not produce enough food for adult salmon.” He believed that the recent decline in the Central Valley Chinook salmon has been “primarily linked to ocean conditions.”

Poor ocean conditions were identified as “major factors influencing west coast salmon populations” in the 5-year reviews for the threatened Central Valley spring-run and the endangered Sacramento River winter-run, prepared by the National Marine Fisheries Service and released on August 15, 2011. (Spring-run 5-year Review, at p. 25.) The 5-year review for the spring-run stated:

Ocean conditions, such as sea-surface temperatures and upwelling are major factors influencing west coast salmon populations (Wells et al. 2008), including those from the Central Valley (Lindley et al. 2009). As previously discussed, Lindley et al. (2009) found that poor ocean conditions in the spring of 2005 and 2006 led to poor growth and survival of Central Valley juvenile salmon entering the ocean in those years. Upwelling off the California coast was stronger than average in the spring of 2007 and 2008 indicating good ocean conditions for Central Valley spring-run Chinook salmon smolts entering the ocean during those years (Lindley et al. 2009). Since the unusual ocean conditions in 2006, more typical patterns of upwelling and sea-surface temperatures have returned (Williams et al. 2011). The poor ocean conditions in recent years clearly had adverse impacts on the CV spring-run Chinook ESU as discussed previously. 

(Spring-run 5-year Review, at pp. 25-26.)  Similarly, the 5-year review for the endangered winter-run stated:

The last five years has been a period of widespread decline in all Central Valley Chinook salmon stocks including the SR winter-run Chinook salmon ESU. An analysis by Lindley et al. (2009) found that unusual oceanic conditions led to poor growth and survival for juvenile salmon produced in the Central Valley during the spring of 2005 and 2006 and these conditions most likely contributed to the declining abundance of this ESU.

(Winter-run 5-year Review, at p. 30.)

If you have question regarding the Central Valley Chinook salmon, please contact Elizabeth Leeper, or the KMTG attorney with whom you normally consult.

Ninth Circuit Court of Appeals Rejects Challenges to 43 Federal Water Contracts

On July 17, 2012 the Ninth Circuit issued an important opinion rejecting challenges to the U.S. Bureau of Reclamation's renewal of 43 water contracts in 2004-2005.  The contracts at issue consisted of two general types - water service contracts in the Delta Mendota Canal Unit of the Central Valley Project and Sacramento River Settlement contracts. 

The case stems back to litigation over a 2005 biological opinion issued by the U.S. Fish and Wildlife Service on the effects of State and Federal water project operations on the threatened delta smelt.  That 2005 BiOp was challenged by environmental groups and ruled invalid by the district court.  In an attempt to ride the wave of that success, the same environmental groups then filed a supplemental complaint challenging the earlier contract renewals by the Bureau as invalid because they had partially incorporated the 2005 BiOp.  The district court rejected these claims because the water service contracts expressly provided and allowed for the Bureau to change CVP operations (including reducing deliveries) in any way required by the ESA, and therefore their execution and existence did not cause any actual harm to the delta smelt.  With respect to the settlement contracts, the district court generally found that the Bureau had no discretion to alter their terms and therefore the ESA consultation provisions did not apply to the renewal of those contracts. 

The Ninth Circuit Court of Appeals affirmed both district court rulings, rejecting challenges to both types of water contracts.  The opinion can be found here.

If you have any questions regarding this decision, please contact, Daniel J. O’Hanlon, Hanspeter Walter, or Rebecca Akroyd.
    

Oral Argument Scheduled for Ninth Circuit Appeals in the Delta Smelt Consolidated Cases

On July 10, 2012, the United States Court of Appeals for the Ninth Circuit issued a notice of oral argument in the Consolidated Delta Smelt Cases appeals, Ninth Circuit Case Nos. 11-15871, 11-16617, 11-16621, 11-16623, 11-6624, 11-16660, 11-16662, and 11-17143.  The lead appeal is also referred to as San Luis & Delta-Mendota Water Authority, et al. v. Salazar, et al.  Hearing on the appeal will occur September 10, 2012, at 9:00 a.m. in the Lloyd D. George United States Courthouse in Las Vegas, Nevada.  The court will reveal the identity of panel members not earlier than the week before the case will be heard. 

The court will hear oral argument on appeals regarding two decisions from the United States District Court for the Eastern District of California: 1) the district court’s December 14, 2010 Memorandum Decision re Cross Motions for Summary Judgment, and the related May 18, 2011 final judgment, which held that the U.S. Fish and Wildlife Service’s (“FWS”) 2008 delta smelt biological opinion (“BiOp”) and Reasonable and Prudent Alternative (“RPA”) were arbitrary, capricious, and unlawful and remanded the BiOp and RPA to FWS; and 2) the district court’s August 31, 2011 decision that enjoined the federal government from implementing the so-called “Fall X2” measure, which, absent the injunction, would have restricted California’s water supply by hundreds of thousands of acre feet.

Briefing completed in the so-called “Merits Appeal” on May 25, 2012, while briefing completed in the so-called “X2 Appeal” on April 5, 2012.  An order granting the motion to consolidate the Merits Appeal and X2 Appeal, which were separately briefed, for oral argument, was filed on May 25, 2012.  

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

Related Stories:

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

Legislature Delays Vote On $11 Billion Water Bond Until 2014

On July 5, 2012 California lawmakers voted to delay voters’ consideration of an $11 billion water bond for another two years, from November 2012 to November 2014.

The California assembly approved AB 1422, sponsored by Democratic Assemblyman Henry Perea, in a vote of 69-6.  The Senate approved the bill on a 34-2 vote.  Although Governor Brown has not yet signed the bill, he is expected to do so.

The Safe, Clean, and Reliable Drinking Water Supply Act, which would authorize the issuance of bonds in the amount of $11.4 billion to finance a safe drinking water and water supply reliability program, was initially scheduled to be put to voters in 2010.  However, in August 2010, former Governor Arnold Schwarzenegger signed legislation delaying it until this year.

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.

Related Stories:

• Governor To Propose Reductions In $11 Billion Water Bond

National Research Council Releases New Report That Estimates Higher Rates Of Sea Level Rise Than Previously Reported

A report released Friday June 22, 2012 by the National Research Council projects that the sea level off most of California is expected to rise about one meter over the next century, an amount slightly higher than projected for global sea levels, and will likely increase damage to the state's coast from storm surges and high waves.  

The report presents data indicating that global sea level rose during the 20th century, and provides estimates that it will rise at a higher rate during the 21st century.  A warming climate causes sea level to rise primarily by warming the oceans -- which causes the water to expand -- and melting land ice, which transfers water to the ocean.  However, sea-level rise is uneven and varies from place to place.  Along the U.S. west coast it depends on the global mean sea-level rise and regional factors, such as ocean and atmospheric circulation patterns, melting of modern and ancient ice sheets, and tectonic plate movements.   

Among its key findings, the committee that wrote the report projected that global sea level will rise 8 to 23 centimeters by 2030, relative to the 2000 level, 18 to 48 centimeters by 2050, and 50 to 140 centimeters by 2100.  The 2100 estimate is substantially higher than the United Nation's Intergovernmental Panel on Climate Change's projection made in 2007 of 18 to 59 centimeters with a possible additional 17 centimeters if rapid changes in ice flow are included. 

For the California coast south of Cape Mendocino, the committee projected that sea level will rise 4 to 30 centimeters by 2030, 12 to 61 centimeters by 2050, and 42 to 167 centimeters by 2100.  For the Washington, Oregon, and California coast north of Cape Mendocino, sea level is projected to change between falling 4 centimeters to rising 23 centimeters by 2030, falling 3 centimeters to rising 48 centimeters by 2050, and rising between 10 to 143 centimeters by 2100.  The committee noted that as the projection period lengthens, uncertainties, and thus ranges, increase. 

Interestingly, the committee noted that tectonic activity may also be a factor in predicting impacts of sea level rise on the west coast.  For instance, the committee's projections for the California coast south of Cape Mendocino are slightly higher than its global projections because much of that coastline is subsiding, exacerbating the effects of rising waters.  The lower sea levels projected for northern California, Washington, and Oregon coasts are because the land there is rising.  In this region, the ocean plate is descending below the continental plate at the Cascadia Subduction Zone, pushing up the coast. 

The study was sponsored by the states of California, Washington, and Oregon; National Oceanic and Atmospheric Administration; U.S. Geological Survey; and U.S. Army Corps of Engineers.  More information and a link to the entire report can be found on the National Academy of Sciences website by clicking 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.

California Department of Water Resources Finalizes Climate Action Plan

The California Department of Water Resources ("DWR") recently finalized and approved a Climate Action Plan ("Plan").  The first phase of this Climate Action Plan is a Greenhouse Gas Emissions Reduction Plan, which will guide State Water Project development and decision making with respect to energy use and greenhouse gas ("GHG") emissions. The Plan outlines how DWR will make substantial reductions in its GHG emissions in the near-term (present to 2020) and how it will continue to reduce emissions beyond 2020 to achieve its long-term (2050) GHG emissions reduction goals. To this end, the Plan lays out both near-term and long-term GHG emissions reduction goals to guide decision making though 2050.  DWR's goals are:

• Near-term goal—reduce emissions by 50 percent below 1990 levels by 2020
• Long-term goal—reduce emissions by 80 percent below 1990 levels by 2050

In order to meet these GHG emissions reduction goals, DWR has identified eleven GHG emission reduction measures that it will implement. These eleven GHG emissions reduction measures include DWR’s termination of its participation and associated delivery of electricity from a coal-fired power plant in Nevada, efficiency improvements to DWR’s existing facilities, purchase and development of renewable and high efficiency electricity supplies, comprehensive improvements to DWR’s construction practices, and improvements to DWR’s business activities.

In total, DWR estimates that these measures will reduce annual GHG emissions in 2020 by over 1 million metric tons and by over 2.5 million metric tons in 2050.

The DWR Climate Action Plan Phase I: Greenhouse Gas Reduction Plan and associated California Environmental Quality Act Initial Study and Negative Declaration were approved and adopted respectively by DWR director Mark Cowin on May 24, 2012 and were filed with the State Clearinghouse on June 1^st, 2012.  These documents and more information on the Plan 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.

State Water Resources Control Board and the California Department of Water Resources Weigh in on Area of Origin Debate

On June 5, 2012, the State Water Resources Control Board (“SWRCB”) and the California Department of Water Resources (“DWR”) filed a brief as amici curiae in support of affirmance of the district court in the pending Ninth Circuit appeal of Tehama-Colusa Canal Authority v. U.S. Department of Interior, et al., Case No. 11-17199.

As we previously reported (here, here, and here), the United States District Court for the Eastern District of California ruled in August 2011 that water users in the Sacramento Valley have no preferential right to delivery of Central Valley Project water under California’s so-called “area of origin” laws.

In the amicus curiae brief, DWR and the SWRCB make the following concluding remarks:

It is undisputed that the Tehama-Colusa agreed to a water delivery contract with the Bureau that imposed a pro-rata shortage provision and did not recognize any preference based on California’s Area-of-Origin Statute.  It is also undisputed that Appellant did not try to obtain a water right from the SWRCB, even if Appellant believes it had an Area-of-Origin priority by virtue of its contract with the Bureau. These facts alone are sufficient to affirm the district court’s order granting summary judgment in favor of the United States.

Appellant Tehama-Colusa Canal Authority must file its final appellate brief in Tehama-Colusa Canal Authority v. U.S. Department of Interior, et al., by June 28, 2012.  Oral argument will be scheduled following the completion of briefing.

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 Stories:

• 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
• Tehama-Colusa Canal Authority Appeals Area of Origin Decision

Public Policy Institute of California Releases Report—“Water and the California Economy”

A report released yesterday by the Public Policy Institute of California (PPIC), entitled “Water and the California Economy,” examines the key economic issues related to water management in California and identifies seven priorities that policymakers and water managers must address to support the state's economic vitality. The report, authored by a wide-ranging group of experts, recommends the following actions:

1. Modernize water measurement and pricing with better estimates of water use and prices that reflect water’s economic value.

2. Reduce vulnerability to water supply interruptions, particularly for the large parts of the state that rely on water exported through the Sacramento–San Joaquin Delta, where supplies are susceptible to levee failures and measures to protect endangered species.

3. Strengthen water markets by clarifying and streamlining the approval process for the sale and lease of water rights and addressing infrastructure gaps.

4. Improve local groundwater management to facilitate groundwater banking and reduce overdraft.

5. Reduce exposure to catastrophic flood risk by targeting flood protection dollars and making better land use decisions.

6. Improve environmental management through more integrated, coordinated, and accountable approaches.

7. Develop more reliable funding, especially for environmental management, flood pro­tection, and statewide data collection and analysis.

The Report states that “[c]ontrary to conventional wisdom, the primary [economic] concern at the statewide level is not periodic drought or even longer-term declines in water availability from climate change.” Instead, catastrophic supply interruptions that could result from earthquakes and levee failures, along with long-term unreliability in water supplies, particularly in water coming from the Delta, pose the greatest economic risks for the state. In addition, the Report concludes that declining groundwater basins and an increasing risk of catastrophic floods create economic vulnerability.

In general, the Report recommends that California make its water supply more efficient, diverse and flexible and that California take action to protect its water supply from catastrophic disruptions. It also identifies the need for more reliable funding for both flood management and environmental management, and the need for an ecosystem approach to environmental management. In addition, the Report recommends reducing permitting delays for water transfers by preparing programmatic environmental impact reviews (EIRs) for the river and stream systems most likely to sell water.

For more information regarding the PPIC report, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.

Related Stories:
Central Valley Flood Protection Board Receives Public Draft 2012 Central Valley Flood Protection Plan

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

Center for Irrigation Technology Releases Report on California Agricultural Water Use