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

KMTG Will Host MCLE Presentation On Sackett v. EPA Decision

On Friday, June 8, from 12 p.m. - 1p.m. (pacific time), Kronick Moskovitz Tiedemann & Girard (KMTG) will be hosting a brown-bag lunch MCLE event, entitled "Sackett v. Environmental Protection Agency: Judicial Review of Clean Water Act Compliance Orders." On March 21, the Supreme Court issued its unanimous decision in Sackett v. EPA, holding that Clean Water Act compliance orders are final agency action subject to judicial review under the Administrative Procedure Act. In so ruling, the high court reversed twenty years of lower court precedent holding that landowners who receive such orders have no right to challenge those orders in federal court. Damien Schiff of the Pacific Legal Foundation, lead counsel for the Sacketts, will lead a webinar presentation on the decision. KMTG will be hosting the in-person presentation. Mr. Schiff's presentation will include a short history of the case and how it ended up in the Supreme Court, a review of Justice Scalia’s opinion for the Court, and expectations for how the decision will affect EPA’s enforcement of the Clean Water Act and other environmental laws. The webinar will be moderated by Hanspeter Walter of KMTG.

This event is presented by the Natural Resources subsection of the California Bar’s Real Property Law section.  Attendees of the webinar or the in-person presentation are eligible for 1.0 MCLE credit.

To register for the webinar, click here or go to www.calbar.org/online-cle and select Tele-Seminars and Webinars.

To attend in-person, at Kronick Moskovitz Tiedemann & Girard (400 Capitol Mall, 27th Floor, Sacramento, CA 95814), please email Lindsey Ono at Lono@kmtg.com.

For additional information regarding this event, please contact Lindsey Ono or Hanspeter Walter.

Related Stories:
Property Owners Entitled to Judicial Review of EPA Compliance Orders

Delta Stewardship Council To Discuss Final Staff Draft Of Delta Plan

At today’s meeting, the Delta Stewardship Council (Council) will discuss the final staff draft of the Delta Plan, which was released on May 14, 2012. 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.” A comparison of the policies and recommendations contained in the final staff draft of the Delta Plan and the prior version is available here. 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 Stories:
Delta Stewardship Council to Conduct Field Hearings on Draft Environmental Impact Report for Delta Plan
Delta Stewardship Council Releases Draft Environmental Impact Report for Delta Plan
Delta Stewardship Council to Release Draft Environmental Impact Report for the Delta Plan on November 4
Delta Stewardship Council to Discuss Delta Plan on August 26
Delta Stewardship Council Releases Draft Version of Delta Plan

Governor Announces New Appointments to the State Water Resources Control Board

On May 11, 2012, Governor Jerry Brown announced the appointments of Felicia Marcus and Steven Moore to the State Water Resources Control Board (“State Water Board”).

The State Water Board is responsible for water allocation and water quality protection in California.  While the State Water Board is permitted to contain five full-time salaried members, prior to the Governor’s announcement yesterday the board consisted of just three members: Chairman Charles R. Hoppin, Vice Chair Frances Spivy-Weber, and Tam M. Doduc.

Both new appointees are familiar with California water issues.  Ms. Marcus gained her experience with the Natural Resources Defense Council, Trust for Public Land, and the U.S. Environmental Protection Agency.  In addition, Ms. Marcus has been a member of the Delta Stewardship Council since 2010.

Mr. Moore, a civil and sanitary engineer, has served in multiple positions with the San Francisco Bay Regional Water Quality Control Board, and also has experience working as an senior engineer, environmental analyst, and biologist.

Both positions require Senate confirmation.  If confirmed, Ms. Marcus and Mr. Moore would each serve a four-year term.

In addition to the appointments of Ms. Marcus and Mr. Moore, Governor Brown announced that Charles Hoppin will remain chair of the State Water Board.  Mr. Hoppin has served as chair since 2009.

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

Final Snow Survey Shows Dry Winter

Today’s news release by the California Department of Water Resources (DWR) for the final 2012 snow survey confirmed that the State suffered a dry winter. Snowpack water content is only 40 percent of normal for this time of year, which in turn will result in below-normal snowpack runoff. Mark Cowin, Director of DWR, acknowledged that reservoir storage from the preceding wet year “will mitigate the impact of dry conditions on water supply this summer” but warned that the State must “plan for the possibility of a consecutive dry year in 2013 . . .”

DWR expects to deliver 60 percent of the approximately 4 million acre-feet of State Water Project (SWP) water requested by SWP contractors this year. According to today’s news release, this is “not an unusually low delivery projection, or allocation” and is largely attributable to last year’s unusually wet winter and resulting reservoir storage.

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

Related Stories:
California Department of Water Resources Increases State Water Project Allocation to 60 Percent
Bureau of Reclamation Announces Updated CVP Water Allocations
DWR Survey Shows State Snowpack Levels at 37%