$11 Billion Water Bond Likely To Appear On Ballot

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

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

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

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

Delta Stewardship Council Releases Draft Version of Delta Plan

On August 3, 2011, the Delta Stewardship Council issued a further (fifth) draft of the Delta Plan.  As we explained in our November 2009 Legal Alert on California's sweeping water legislation, the statutorily-created Delta Stewardship Council must adopt a Delta Plan by January 1, 2012, to accomplish ecosystem restoration and water delivery reliability for 25 million Californians and millions of acres of the world’s most productive farm land.  The 2009 water legislation describes coequal goals “of providing a more reliable water supply for California and protecting, restoring, and enhancing the Delta ecosystem” and explains that the legislation’s purpose is to “establish a governance structure that will direct efforts across state agencies to develop a legally enforceable Delta Plan.”  The Delta Plan must include measures that promote: (1) viable populations of aquatic and terrestrial species; (2) functional corridors for migratory species; (3) diverse habitats; (4) reduced threats; (5) more reliable water supplies; (6) improved water quality; and (7) the economic vitality of the State.

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

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

Related links:

Fifth staff draft of the Delta Plan

Fifth staff draft Appendices

Fourth to fifth staff draft Policies and Recommendations Comparison Chart

Cover Letter from the DSC Executive Officer

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

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

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

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

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

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

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

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

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

Eastern District Orders Interim Remedies to Protect ESA-Listed Species

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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