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Water Wars in California’s Central Valley Take New Turn

May 29, 2012

Another battle over water rights in California’s Central Valley has begun, this time pitting commercial fishermen against farmers, cities, and others claiming rights to the resource. In Pacific Coast Federation of Fisherman’s Associations v. U.S. Department of the Interior, a coalition of Fishing Associations[1] sued the U.S. Department of the Interior (“Interior”) and the U.S. Bureau of Reclamation (“Bureau”) under the National Environmental Policy Act (“NEPA”)[2] and the Central Valley Project Improvement Act (“CVPIA”)[3] over environmental approval for water service contracts in the Sacramento River Delta (“Delta”).

Central to the Fishing Associations’ claims is an argument that Reclamation considers continued water delivery – at present quantities and prices – to be the environmental baseline and, therefore, that water deliveries under the contracts will have no effect on the environment. The Associations assert that the Bureau should be required to conduct a new “water needs assessment” representative of current conditions for the Delta and then consider alternatives or mitigation measures that may reduce the interim contracts’ effect on the environment. In related action, the Pacific Coast Federation of Fisherman’s Associations has asserted water quality challenges to water use in central California. See J. Kray, California Conservation Groups Challenge Agricultural Runoff Exemption from Clean Water Act Permitting, Marten Law Environmental News (July 28, 2011).

Background

The Sacramento-San Joaquin Delta is a region where two of California’s largest rivers meet. Freshwater from the rivers mingles with saltwater from the Pacific Ocean, creating the West Coast’s largest estuary. “Composed of 57 leveed island tracts and 700 miles of sloughs and winding channels, the Delta is a unique blend of small town communities, busy ship ports, farmlands, industries, highways, historical sites, and marinas.”[4] The Sacramento-San Joaquin Delta is also a critical component of the federally-managed Central Valley Project (“CVP”) and the State of California’s State Water Project (“SWP”), which are among the world’s largest water diversion projects.

The Sacramento-San Joaquin Delta provides drinking water for over 25 million Californians and irrigation for about 5 million acres of cropland. Eighty percent of the water in California moves via pumps from sources north of the Sacramento-San Joaquin Delta to farms and communities in the south. Water diversions by the State Water Project, the federal Central Valley Project and private diversions in the Sacramento-San Joaquin Delta and its Sacramento and San Joaquin River watersheds export millions of acre-feet of water. and its water is at the heart of the state’s economic vitality, its wildlife habitat, shipping, transportation, drinking water, and recreation. Water from the SWP serves both urban and agricultural areas in the Bay area, the Silicon Valley, the San Joaquin Valley, the Central Coast, and Southern California.

The Fishing Associations’ Suit

The Fishing Associations seek an order and judgment overturning Reclamation’s Environmental Assessment (“EA”) and Finding of No Significant Impact (“FONSI”) adopted for eight water service contracts, referred to as the Three Delta Division and Five San Luis Unit Water Service Interim Renewal Contracts 2012-2014 (“interim contracts”). The majority of the water at issue in the interim contracts – over 1,105,000 acre feet – is allocated to the Westlands Water District. That District encompasses more than 600,000 acres of farmland in western Fresno and Kings counties of California. The District serves approximately 600 family-owned farms that average 900 acres in size. So, in one sense, the Fishing Associations’ suit pits the water interests of fisherman against those of farmers.

Specifically, the Fishing Associations argue that the EA and FONSI violate NEPA because they assume that Reclamation does not have discretion to reject the interim contracts; or reduce the quantities of water exported from the Delta; or increase the interim contracts’ pricing structure to reduce water demand and thus reduce exports and their environmental impacts.

NEPA is, however, purely procedural; it does not contain substantive environmental standards.[5] To implement its goals, NEPA “requires an agency to prepare an environmental impact statement (‘EIS’) for ‘major Federal actions significantly affecting the quality of the human environment.’”[6] The EA for any “project[ ] directly undertaken by [a] Federal agenc[y]” must “be prepared at the feasibility analysis (go-no go) stage” of the project,[7] which is to say before “making an irreversible and irretrievable commitment of resources.”[8] The question for the court, therefore, will be whether Reclamation and Interior met NEPA’s procedural requirements by preparing an EA.

The Fishing Associations further argue that the interim contracts threaten ecological resources – including delta smelt, salmon, steelhead, and sturgeon – by authorizing irrigation water uses that result in water containing pollutants draining from farms. In related action, in July 2011, the Fishing Associations issued a Notice of Intent to Sue letter under the Clean Water Act (“CWA”) [9] testing whether the Bureau and California’s San Luis & Delta-Mendota Water Authority (“Authority”) are discharging water within the scope of the CWA’s exemptions for return flows from irrigated agriculture in the Grasslands Drainage Area, an agricultural region on the west side of California’s San Joaquin Valley.[10] If those exemptions were unavailable or narrower than previously understood then far more of the United States’ 330 million acres of agricultural land[11] would be subject to CWA jurisdiction and many farmers formerly exempt from permitting will be required to obtain and comply with water quality permits. The Fishing Associations’ claims in the present suit do not contain any CWA allegations and only raise water quality issues as consequence of Reclamations alleged failure to comply with NEPA.
 
The Fishing Associations ask the court to compel Reclamation to comply with the CVPIA and complete an EIS for long-term contracts between Reclamation and Sacramento-San Joaquin Delta water contractors. Congress passed the CVPIA in 1992 with an eye toward long-term water supply contracts. The Fishing Associations argue that Reclamation is violating the CVPIA by entering into interim contracts based on EAs rather than negotiating long-term contracts based on a more complex EIS that looks at longer-term consequences. The Fishing Associations ultimately seek to reduce water deliveries to farmers, cities, and other water users in the Delta. The Bureau and Interior will be answering the Fishing Associations’ claims early this summer, setting the stage for a contest over water priorities in the Delta.

The outcome of the Fishing Associations’ claims in either (or both) the new law suit and the Clean Water Act dispute initiated last year could have far reaching impacts on the Bureau and irrigators throughout the Sacramento River delta. If the court holds in the new suit that Interior and Reclamation violated NEPA or the CVPIA, then those agencies may be required to conduct environmental reviews that will potentially conclude water service to farms and other water users in the Delta must be reduced.

For more information about Marten Law’s water resources, water quality, and wetlands practices please contact Jeff Kray.

[1] The groups involved are: the Pacific Coast Federation of Fisherman’s Associations (“PCFFA”) and the San Francisco Crab Boat Owners Association, Inc. (“Crab Boat Owners Association”). PCFFA is a non-profit, tax-exempt corporation which represents a coalition of fishermen’s organizations in California, Oregon, and Washington. The Crab Boat Owners Association is a California corporation whose members harvest crustaceans and fish from the Pacific Ocean.

[2] 42 U.S.C. 26 section 4321 et seq.

[3] Public Law 27 No. 102-575, 108 Stat. 4600, Title XXXIV (1992).

[4] California Department of Water Resources at http://www.water.ca.gov/swp/delta.cfm.

[5] Opinion at p. 11132, citing Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d 938, 947 (9th Cir. 2008).

[6] Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1169 (9th Cir. 2011) (quoting 42 U.S.C. § 4332(2)(C)).

[7] 40 C.F.R. § 1502.5.

[8] Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000) (internal quotation marks omitted).

[9] 33 U.S.C. § 1342.

[10] http://water.epa.gov/polwaste/nps/success319/Section319III_CA.cfm.

[11] http://www.epa.gov/owow_keep/NPS/agriculture.html.

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