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