Department of Water Resources Announces 5% Initial Allocation for 2014

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

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

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

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

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

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

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

The proposed regulations require the following:

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

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

State Agencies Release Draft “California Water Action Plan”

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

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

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

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

1. Make Conservation a California Way of Life

2. Increase Local and Regional Self-Reliance

3. Achieve Co-Equal Goals for the Delta

4. Protect and Restore Important Ecosystems

5. Manage and Prepare for Dry Periods

6. Expand Water Storage Capacity

7. Provide Safe Drinking Water for All Communities

8. Improve Flood Protection

9. Increase Operational and Regulatory Efficiency

10. Identify Sustainable and Integrated Financing Opportunities

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

Ninth Circuit Denies Petition for Rehearing of Area of Origin Decision

On October 15, 2013, the Ninth Circuit Court of Appeals issued an order denying the Petition for Rehearing filed by Tehama-Colusa Canal Authority (“TCCA”), which requested rehearing or rehearing en banc of the Ninth Circuit’s opinion in the case of Tehama-Colusa Canal Authority v. U.S. Dept. of the Interior, et al., Case No. 11-17199.

In its July 1, 2013 opinion, the Ninth Circuit rejected TCCA’s claim that California area of origin law entitled TCCA’s member districts to priority deliveries of Central Valley Project (“CVP”) water from the Bureau of Reclamation (“Bureau”). The court ruled that California area of origin laws, in particular Water Code section 11460, do not require the Bureau to prioritize the allocation of Federally-appropriated CVP water to Sacramento Valley CVP contractors. 

TCCA may still file a petition for a writ of certiorari seeking review of the Ninth Circuit’s opinion by the Supreme Court. 

Related Posts:

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

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

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

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

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

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

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

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

Related Posts:

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

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

On August 14, 2013, the U.S. District Court for the Eastern District of California extended a modified temporary restraining order (“TRO”) prohibiting excess releases of stored water into the Trinity River from the Central Valley Project's ("CVP") Trinity River Division.

Citing likely violations of the Central Valley Project Improvement Act's Trinity River Restoration Program Record of Decision ("TRROD") and the National Environmental Policy Act, the court extended the TRO to August 23 after finding “that Plaintiffs have demonstrated a likelihood of success on the merits and the possibility of irreparable harm that is not clearly outweighed by the equities on the other side."

Some 453,000 acre-feet of CVP water is already being released from the Trinity River Division in 2013 for the benefit of fall-run Chinook salmon in the Trinity River system pursuant to the TRROD.  The court extended the TRO despite opposition from the Hoopa Valley and Yurok Tribes, the Pacific Coast Federation of Fishermen's Associations and federal government contending that the excess CVP storage releases may prevent a possible disease outbreak that could affect Chinook salmon in the lower Klamath River.

The TRO prohibits the Bureau of Reclamation (“Reclamation”) from releasing into the Trinity River up to 109,000 acre-feet of water from storage in the federal CVP's Trinity and Lewiston reservoirs, pending an expedited hearing in which Federal Defendants are ordered to show cause why the modified TRO should not be converted to a preliminary injunction.

In the modified TRO, the court acknowledges the potential economic and environmental harms to Plaintiffs if the water releases go forward, while acknowledging questions about “whether these augmentation flows are truly necessary to prevent fish kills like that experienced in 2002.”  

Related Post:

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

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

On August 13, 2013, the U.S. District Court for the Eastern District of California issued a temporary restraining order ("TRO") prohibiting the Bureau of Reclamation ("Reclamation") from releasing into the Trinity River up to 109,000 acre-feet of water from storage in the federal Central Valley Project's ("CVP") Trinity and Lewiston reservoirs between August 13 and September 30, 2013.

The TRO follows the filing of a Complaint on August 7, 2013, by the San Luis & Delta-Mendota Water Authority and Westlands Water District (“Plaintiffs”) challenging the Reclamation’s decision to make Trinity River storage releases above and beyond the existing 453,000 acre-feet of releases dedicated to fall-run Chinook salmon fishery restoration and maintenance in 2013.

Reclamation had described the additional 109,000 acre-feet of excess releases as needed for fall-run Chinook salmon located below the confluence of the Trinity River and Klamath River (i.e., lower Klamath River).  The TRO cites the Complaint's argument that a year 2000 federal Record of Decision already dedicates 453,000 acre-feet of CVP water from Trinity Reservoir for restoration and maintenance of fall-run Chinook salmon this year, and that Reclamation could have used that water to provide the late summer flows at issue in the litigation.  The TRO also cites the Complaint's argument that Reclamation decided to make the excess late summer CVP storage release without analyzing and disclosing resulting impacts to CVP water users under the National Environmental Policy Act.

The TRO enjoins Reclamation “from making releases from Lewiston Dam to the Trinity River in excess of 450 cubic feet per second (‘cfs’) for fishery purposes through and including August 16, 2013.”  The short duration of the restraining order is designed to allow Plaintiffs to file reply papers and will afford the court an opportunity to perform a more detailed analysis of the issues.

The TRO was issued despite opposition by federal defendants and defendant-intervenors (Hoopa Valley Tribe, Pacific Coast Federation of Fishermen’s Associations, and Institute for Fisheries Resources).

Ninth Circuit Rejects Claims to Area of Origin Priority by Tehama-Colusa Canal Authority

On July 1, 2013, the Ninth Circuit Court of Appeals issued an opinion rejecting assertions by Tehama-Colusa Canal Authority (“TCCA”) that California area of origin law entitled its member districts to priority deliveries of Central Valley Project (“CVP”) water and that the Bureau of Reclamation (“Bureau”) acted in violation of law by delivering less than 100% of contract amounts during contractual “Conditions of Shortage.”  With the opinion, the Ninth Circuit affirmed the 2011 decision by the United States District Court for the Eastern District of California, discussed here.

In an opinion by Judge Johnnie B. Rawlinson, the court ruled that California area of origin laws, in particular Water Code section 11460, do not require the Bureau to prioritize the allocation of Federally-appropriated CVP water to Sacramento Valley CVP contractors. 

In addition, the court concluded that the “clear contract language” of TCCA members’ water service contracts provides that TCCA members are not entitled to the full amount of water contracted for, and “may have to endure pro rata reduction in times of shortage, along with other CVP contractors.”

Finally, the court held that validation judgments foreclosed TCCA and its members from seeking to “circuitously undo the contract provisions to which they previously acceded.”  The validation judgments, which became final in 2005, validated the water service contracts under California law. 

The Ninth Circuit’s opinion in the case, Tehama-Colusa Canal Authority v. U.S. Dept. of the Interior, et al., Case No. 11-17199, may be found here.

Related Posts:

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

Seven Lawsuits Filed Challenging the Delta Stewardship Council’s Delta Plan and Environmental Review Document

Seven lawsuits challenging the Delta Stewardship Council’s Delta Plan and final environmental document  were filed by the June 17 deadline.  The groups challenging the Council’s actions represent a range of interests: export contractors, environmental and fishing industry groups, a city, and in-Delta residents.  Links to the parties’ complaints and/or petitions are provided here:

• San Luis & Delta-Mendota Water Authority et al. v. Delta Stewardship Council (Sacramento Co. Case No. 34-2013-80001500)
• City of Stockton v. Delta Stewardship Council (San Joaquin Co. Case No. 39-2013-00298188)
• State Water Contractors et al. v. Delta Stewardship Council (Sacramento Co. Case No. 34-2013-80001530)
• California Water Impact Network et al. v. Delta Stewardship Council (San Francisco Case No. CPF-13-513047)
• North Coast Rivers Alliance et al. v. Delta Stewardship Council (Sacramento Co. Case No. 34-2013-80001534)
• Central Delta Water Agency et al. v. Delta Stewardship Council (San Francisco Case No. CPF-13-513048)
• Save the California Delta Alliance v. Delta Stewardship Council (San Francisco Case No. CPF-13-513049)

The Delta Plan, adopted on May 16, 2013, by the Delta Stewardship Council, was developed in response to legislative mandate in the 2009 Delta Reform Act.  The Council certified its CEQA document, or Final Programmatic Environmental Impact Report (PEIR), on May 16, 2013.  The PEIR was prepared to evaluate the potential environmental impact of the proposed Delta Plan.

Although filed by disparate interests, the various lawsuits assert claims that fall into three general categories: (1) alleged CEQA violations, (2) alleged Delta Reform Act violations, and (3) alleged Public Trust Doctrine violations.  Because cases have been filed in three different counties, a threshold procedural issue will be whether all the cases should be coordinated before a single judge in one county.  

Show me the Water! Presentation

Join KMTG water law attorney Eric Robinson and adjunct professor Jennifer Harder at their upcoming presentation, "Show Me The Water! SB 610, CEQA & SB 221 Compliance Strategies for Development Projects & Urban Planning," sponsored by the Association of Environmental Professionals (AEP).  

The presentation is on Tuesday, June 25, 2013 from 8:00 a.m. to 12:00 p.m. at the West Sacramento Community Center.  For more information and to register, see here.  

Delta Stewardship Council Adopts Delta Plan And Proposed Implementing Regulations

On Thursday, May 16th, the Delta Stewardship Council adopted the final Delta Plan and the proposed regulations for the implementation of the Delta Plan, and certified the final Programmatic Environmental Impact Report for the Delta Plan. The Delta Stewardship Council is an independent agency established under the Sacramento-San Joaquin Delta Reform Act Of 2009 (Water Code, § 85000 et seq.). The Delta Stewardship Council is responsible for developing and adopting a Delta Plan that furthers the coequal goals of providing a more reliable water supply for California and protecting, restoring and enhancing the Sacramento-San Joaquin Delta (“Delta”) ecosystem. (Water Code, §§ 85054, 85300.) The Delta Plan must “include subgoals and strategies to assist in guiding state and local agency actions related to the Delta” and may also “identify specific actions that state or local agencies may take to implement the subgoals and strategies.” (Water Code, § 85300.)

The Delta Stewardship Council will now submit the package of proposed regulations and a Statement of Reason to the State Office of Administrative Law (“OAL”). If the OAL approves those documents they will be submitted to the California Secretary of State. If approved by that office, the proposed policies in the Delta Plan become enforceable regulations.

The final Delta Plan is available here, the proposed implementing regulations are available here, and the Programmatic Environmental Impact Report is available here.

Report Shows State's Significant Exposure To Flood Risk

On April 3, 2013, the California Department of Water Resources (DWR) and the U.S. Army Corps of Engineers released the public draft of California's Flood Future: Recommendations for Managing the State's Flood Risk. The draft report finds that $580 billion in assets are exposed to flood risk throughout the state, and 7 million Californians live in a floodplain. The report finds California is at catastrophic risk for devastating floods and flooding is a statewide problem.

The report includes seven strategic recommendations intended to inform local, state, and federal decisions about flood management policies and financial investments:

1) Conduct regional flood risk assessments to better understand statewide flood risk;

2) Increase public and policymaker awareness about flood risks to facilitate informed decisions;

3) Increase support for flood emergency preparedness, response and recovery programs to reduce flood impacts;

4) Encourage land use planning practices that reduce the consequences of flooding;

5) Implement flood management from regional, system-wide and statewide perspectives to provide multiple benefits;

6) Increase collaboration among public agencies to improve flood management planning, policies and investments; and

7) Establish sufficient and stable funding mechanisms to reduce flood risk.

The report is available through DWR's website.  There is a 45-day public comment period for the draft report.

State Water Project Allocation Reduced 5 Percent

The State Water Contractors issued a press release announcing that the California Department of Water Resources (DWR) has reduced this year's expected water allocations from the State Water Project from 40% down to 35% as a result of a record dry January and February, coupled with a grim outlook for rain conditions in March, and pumping restrictions that were imposed in December and January to protect Delta smelt and salmon. The press release states that recent pumping restrictions resulted in more than 550,000 acre-feet of water lost from the State Water Project and more than 300,000 acre-feet of water lost from the Central Valley Project – water that could have been stored and would have provided an important safety net during this record dry spell. DWR rarely lowers allocation projections. In fact, allocations have only been reduced 3 times since 1970.

"This reduction in allocations illustrates the need for water infrastructure that is flexible enough to capture supplies when they are available,” said Terry Erlewine, general manager of the State Water Contractors. “There is no way to predict the amount of rain and snow we will get each year, which is why it is vital that we capture water when it is available so we can save it for these dry spells. The Bay Delta Conservation Plan will provide this flexibility so water can be captured and delivered reliably to the 25 million Californians who rely on water from the Delta.”

For more information on this issue or other natural resource developments please contact Hanspeter Walter or the KMTG attorney with whom you normally consult.

 

 

Bureau of Reclamation Reduces 2013 CVP Allocations by 5 Percent

The U.S. Bureau of Reclamation today decreased the Water Year 2013 water supply allocations for the Central Valley Project, citing the extremely dry conditions in California.  Reclamation's announcement is quoted below:

Following a wet start to the water year in November and December 2012, the January – March period is tracking to be the driest on record, resulting in a critical classification for both the Sacramento and San Joaquin river basins based on the 90-percent exceedence forecast. Reclamation is announcing a decrease in the allocation for the following South-of-Delta water service contractors:

• Agricultural water service contractors’ allocation is decreased from 25 to 20 percent of their contract supply.

• Municipal & Industrial contractors’ allocation is decreased from 75 to 70 percent of their historic use.

The initial CVP allocation in February was low, based in part on pumping restrictions needed to protect threatened fish species under the Endangered Species Act; however, this decreased allocation for South-of-Delta contractors is based on the critical water year classification, the projection of reduced Delta inflows this spring, significant loss of reservoir storage to support pumping this summer and water quality permit requirements.

“We are facing a challenging water year, but we continue to look for opportunities to facilitate supplemental water supplies through water transfer and exchange programs and new arrangements that could lead to additional flows in the system,” stated Mid-Pacific Regional Director David Murillo. “We are exploring all options to assist in alleviating the serious impacts of these drought conditions.”

The decreased allocations have occurred despite recent actions being taken by Reclamation to help shore up water supplies.  Some of these actions include the completion of the Delta-Mendota Canal/California Aqueduct Intertie in May 2012 and the securing of water to supplement CVP supplies as a result of the Yuba Accord.

“Reclamation continues working with our partners to find a comprehensive, long-term solution to achieve the dual goals of a reliable water supply for California and a healthy Bay Delta ecosystem that supports the state’s economy,” Murillo said. “It should be noted that the successful completion of the Bay Delta Conservation Plan would include a new diversion and conveyance facility utilizing state-of-the-art protections for endangered fish species, which would improve water supply reliability even in years such as this, while improving environmental conditions in the Delta.”

For more information on this issue or other natural resource developments please contact Hanspeter Walter or the KMTG attorney with whom you normally consult.

Brown Administration Releases First Four Of Twelve Chapters of Bay Delta Conservation Plan

Today the administration of California Governor Edmund G. Brown Jr. released the first four of 12 chapters of the Bay Delta Conservation Plan (BDCP). The four chapters released today include:

• Introduction: background, planning goals, regulatory context, a description of the scope of the plan, overview of the planning process, and details of how the plan is organized.
• Existing Ecological Conditions: historic and current ecological conditions in the Delta.
• Conservation Strategy: biological goals and objectives and details of the 22 conservation measures.
• Covered Activities: activities for which permits will be sought from regulatory agencies as a result of project proponents agreeing to implement the components of the plan upon its approval.

The chapters released today can be viewed here. A public meeting to discuss these chapters is scheduled for March 20 from 1:30 p.m. to 4:30 p.m. at the Ramada Inn, 1250 Halyard Drive in West Sacramento.

Chapters to be released in coming weeks include those that describe:

• the effects of the plan on ecosystem processes
• plan implementation
• governance structure
• costs and funding sources
• analysis of alternative ways to minimize harm to protected species
• the role of independent science in the creation and implementation of the plan. 

The schedule for the BDCP can be viewed here.

For additional information regarding the BDCP please visit http://baydeltaconservationplan.com or contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.

 

Governor Announces Appointments To State Water Resources Control Board

Governor Brown today made the following anouncements with respect to the State Water Resources Control Board:

Tam Doduc, 46, of Sacramento, has been appointed to the State Water Resources Control Board, where she has served since 2005. Doduc has held multiple positions at the California Environmental Protection Agency since 2000, including deputy secretary for environmental quality, assistant secretary for air and chemical programs, assistant secretary for agriculture and chemical programs and assistant secretary for technology certification.

Frances Spivy-Weber, 68, of Redondo Beach, has been appointed to the State Water Resources Control Board, where she has served since 2007. Spivy-Weber was a consultant to Los Angeles Deputy Mayor Nancy Sutley in 2006 and executive director for policy at the Mono Lake Committee from 1997 to 2006. She served as director of international programs at the National Audubon Society from 1983 to 1992 and legislative assistant at the Animal Welfare Institute from 1978 to 1982.

Governor Brown also announced the following changes to the State Water Resources Control Board, which will become effective upon the retirement of Board Chair Charles R. Hoppin in April:

Dorene D’Adamo, 52, of Stanislaus, will be appointed to the Board. D’Adamo has been senior policy advisor for Congressman Jim Costa since 2013. She was senior policy advisor for Congressman Dennis Cardoza from 2003 to 2012 and was legal counsel for Congressman Gary Condit from 1994 to 2003. D’Adamo was a visiting instructor at California State University, Stanislaus from 1992 to 1998 and an associate attorney at the Law Offices of Perry and Wildman from 1992 to 1994.

Felicia Marcus, 57, of Emeryville, will assume the position of Board Chair for the State Water Resources Control Board. Marcus has served on the State Water Resources Control Board since 2012. She was the western director for the Natural Resources Defense Council from 2008 to 2012 and was executive vice president and chief operating officer at the Trust for Public Land from 2001 to 2008. Marcus served as the regional administrator at the U.S. EPA Region IX from 1993 to 2001.

For more information on this development, please contact Hanspeter Walter or the KMTG Natural Resource attorney with whom you normally consult.

Governor Appoints Retired Judge Frank C. Damrell To Delta Stewardship Council

Governor Jerry Brown has appointment retired federal district court judge Frank C. Damrell Jr. to the Delta Stewardship Council.  Damrell will fill the seat previously held by Felicia Marcus, who was appointed to the State Water Resources Control Board last fall.  The Delta Stewardship Council issued a statement quoting Council Chair Phil Isenberg as stating:  “Judge Damrell is a terrific appointment. He is smart, focused and knowledgeable. Having a member with federal judicial experience will add substantially to our base of knowledge. He has a distinguished judicial record with significant decisions on environmental, commercial, employment, anti-trust and civil rights matters. We look forward having someone of Judge Damrell’s stature on the Council."

 

For more information on this development, please contact Hanspeter Walter or the KMTG Natural Resource attorney with whom you normally consult. 

 

February Snow Survey Shows Snowpack At 66% Of Average

On February 28, 2013, the Department of Water Resources ("DWR") issued a news release regarding the third 2013 snow survey.  The results of the snow survey show that snowpack water content is only 66 percent of average for this time of year, and only 57 percent of the average April 1st levels, when snowpack is normally at its peak.  In comparison, the first 2013 survey performed on January 2nd, showed snowpack at 134 percent of normal for that date.  The current low snowpack levels are a result of the "driest January-February on record (since 1920)" for the Northern California region.

The low snow levels are a concern for water suppliers and water users throughout the State, because snowpack--"often called California's 'frozen reservoir'--normally provides about a third of the water for California's farms and communities."  The news release states that "[f]orecasters note there could be a weather turnaround in March, but it is unlikely late-season storms will make up the water supply deficit."

DWR Director Mark Cowin stated that "[n]ear-record dry weather combined with pumping restrictions to protect Delta smelt are making this a gloomy water supply year[.]"  DWR "currently estimates that it will be able to deliver 40 percent of the slightly more than 4 million acre-feet of State Water Project (SWP) water requested for this calendar year by the 29 public agencies that supply more than 25 million people and nearly a million acres of irrigated farmland."  The last 100 percent allocation--"difficult to achieve even in wet years because of pumping restrictions to protect Delta fish--was in 2006."

Although snowpack levels are low, "most key storage reservoirs are above or near historic levels for the date thanks to November and December storms."  However, the San Luis Reservoir, "a critical offstream reservoir south of the Sacramento-San Joaquin Delta is only at 69 percent of its historic level for the date . . . because of Delta smelt pumping restrictions."

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

Yuba County Water Agency Files Federal Lawsuit Challenging New BiOp on Yuba River

An earlier post on this blog reported that Yuba County Water Agency ("YCWA") had sent a 60-day notice of intent to sue to several federal agencies regarding their issuance and adoption of a biological opinion significantly affecting the future operations of Daguerre Point and Englebright Dams on the Yuba River.  Today YCWA made good on its threat by filing suit in federal district court.  The suit alleges there are numerous legal and scientific flaws in the recently issued BiOp and the process that developed it.  YCWA named the U.S. Army Corps of Engineers ("Corps") and NOAA Fisheries, formerly the National Marine Fisheries Service ("NMFS"), as the main defendants.   

NMFS issued the challenged BiOp in February of 2012. In that BiOp, NMFS concluded that the proposed operations of Englebright and Daguerre Dams would jeopardize several ESA-listed fish species and adversely modify their critical habitat. Consequently, to comply with the Endangered Species Act ("ESA"), the 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.  YCWA has estimated that the cost of implementing the RPA could be as high as $1 billion. 

The remedies sought by YCWA in the lawsuit include a declaration that the BiOp is illegal and an injunction prohibiting NMFS and the Corps from implementing the BiOp and its RPA.  YCWA issued a press release explaining its reasons for filing this suit.  That and other documents related to the lawsuit can be viewed by following these links:

Press Release

FAQ

Complaint

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