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Lawsuit Filed Alleging Bureau of Reclamation Water Allocations Violate California Area of Origin Rules March 16, 2010 by Cassie N. Aw-yang cawyang@somachlaw.com |
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On February 11, 2010, the Tehama-Colusa Canal Authority (TCCA) filed suit against the United States Bureau of Reclamation (Bureau) to challenge its exporting of Central Valley Project (CVP) water without regard for California’s area-of-origin rules. Area-of-origin rules prevent CVP operations from depriving areas where water originates of their prior right to all water reasonably required to supply adequately their beneficial needs. A ruling that the Bureau must comply with area-of-origin rules in times of water shortages would significantly affect the allocation and distribution of California’s water supply in dry years. Background TCCA is a joint powers authority of numerous CVP water contractors that operate in the Sacramento Valley watershed. TCCA manages and maintains the Tehama-Colusa and Corning canals irrigation water supply system and provides irrigation water to farmers in the region. The Bureau operates the CVP, establishing and administering yearly water supply allocations. During times of water shortage, the Bureau is responsible for deciding how and where to reduce water deliveries. In dry years, there is insufficient water to meet the full needs of all contractors. California’s area-of-origin statutes are rooted in the state Central Valley Project Act of 1933. A key provision of the Act later became California Water Code section 11460. Section 11460 states that in the construction or operation of certain projects, the Department of Water Resources (DWR) may not deprive a watershed of the prior right to all the water reasonably required to supply adequately the beneficial needs of that watershed or any of its inhabitants or property owners. Through Water Code section 11128, this requirement also applies to the Bureau. These Water Code provisions are commonly referred to as “area-of-origin” rules. TCCA’s Complaint TCCA’s complaint alleges that the Bureau exported water in violation of the state’s area-of-origin rules. The Bureau allegedly reduced water deliveries under water service contracts north of the Delta to TCCA members and others in ten of the past 33 contract years. TCCA argues that in allocating CVP water, the Bureau ignored obligations to grant contractors in the area of origin a preferential right to present and future water use within that watershed. TCCA claims that as a result of the reduced water deliveries, the Bureau deprived TCCA members of their right to water for beneficial needs. In its complaint, TCCA contends that it attempted to assert its area-of-origin rights prior to filing suit. When TCCA or one of its members would request that the Bureau deliver all area-of-origin contract supplies before exporting water, the Bureau refused. TCCA further claims it wrote letters to the Bureau notifying it of its alleged violation of law and requesting that the Bureau immediately modify its allocation announcement for water service contractors to reflect that TCCA members would receive their full contractual supplies. The Bureau cited declared water shortages to continue to allocate water outside the area of origin. The complaint alleges that in times of water shortages when TCCA did not receive its full contractual supplies, the Bureau claimed authority to allocate supply reductions across all CVP contractors regardless of area-of-origin priority. The Bureau allegedly contended that the area-of-origin rules do not prevent it from exporting water that could otherwise fulfill contractual supplies within the Sacramento Valley watershed. TCCA requests injunctive relief to prevent the Bureau from operating the CVP without regard for the area-of-origin protections; arbitrarily allocating supplies and/or shortages across all CVP water service contracts without regard for area-of-origin protections; and taking other related actions that deprive TCCA members of their full contractual supplies. TCCA also requests a declaratory judgment that describes the Bureau’s and TCCA’s rights and obligations as related to CVP allocations. The Import of TCCA’s Suit Relevant to Recent Litigation The area-of-origin statutes relied on by TCCA have been invoked infrequently. Consequently, courts have limited opportunities to consider fully the application and scope of the statutes’ restrictions. One recent case in which Somach Simmons & Dunn participated, El Dorado Irrigation District v. State Water Resources Control Board (2006) 142 Cal.App.4th 937, addressed the area-of-origin rules. In El Dorado Irrigation District, suit was brought against various parties, including the State Water Resources Control Board (State Water Board) for a water rights permit condition that allegedly violated the rules. Because the rules apply to the Bureau and DWR and do not necessarily limit the State Water Board’s authority in administering water rights, the court held that a decision based on the rules was unnecessary. However, the court’s discussion of the area-of-origin rules in the El Dorado Irrigation District case may be considered by the court in the TCCA suit. The El Dorado Irrigation District court argued that under the Water Code, appropriators in an area of origin may not assert a priority to water from that area if the water was properly stored by another in an earlier season. The court stated that the plaintiffs’ priority to water from its area-of-origin watershed does not extend to water properly diverted to storage at an earlier date. Put differently, the Bureau’s diversions do not violate area-of-origin protections when the Bureau appropriates stored flows rather than natural or abandoned flows for export. Such protections merely give priority to appropriators within the area of origin at the time natural flow is diverted. Users within an area of origin do not have the right to stored water without paying for the water. In contrast to El Dorado Irrigation District, the TCCA lawsuit was filed directly against the Bureau. TCCA does not appear to request water without compensation, but rather asserts a right to full contract allocation and preferential present and future water use based on TCCA’s status as a contractor in the area of origin. The success of the TCCA suit may ultimately hinge on whether the source of the water at issue is deemed natural flow or CVP water previously and properly stored. Conclusions and Implications The judiciary has had little occasion to consider California’s area-of-origin doctrines. In the meantime, water demands increase throughout the state and drought conditions continue. Water shortages under these conditions may prompt concerns and lawsuits similar to TCCA’s. Any ruling in TCCA’s case could have consequences that reach beyond the Bureau’s and TCCA’s rights and responsibilities. If the court upholds the area-of-origin interpretation alleged in TCCA’s complaint, yearly allocations from the CVP by the Bureau would need to change to accommodate the ruling. Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn. |
