Governor to Propose Reductions in $11 Billion Water Bond

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

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

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

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

Delta Stewardship Council to Discuss Delta Plan on August 26

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

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

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

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

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

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

California Supreme Court Issues Decision On Moss Landing Powerplant Expansion

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

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

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

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

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

A complete copy of the decision can be found here.

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

Trial Court Decertifies EIR For Marin County Desalination Project

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

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

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

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

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

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

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

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

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

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

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

Related links:

Press release

Public meeting presentation 

BDCP milestones schedule handout

EIR/EIS fact sheet handout

August 9, 2011 California Natural Resources Agency correspondence

August 10, 2011 Department of the Interior correspondence

Coho Salmon Hearing Scheduled for August 16 in Sacramento

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

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

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

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

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

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

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

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

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

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

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

Related link: DFG Presentation to BDCP Public Meeting