On February 22, 2011, the San Joaquin County Superior Court issued an order (Entry Order) authorizing the Department of Water Resources (DWR) to enter more than 130 Delta properties, comprising tens of thousands of acres, to conduct environmental studies that DWR claims are necessary to comply with the California Environmental Quality Act for the ongoing Bay Delta Conservation Plan (BDCP). Depending on the size of any given property, the Entry Order allows access on each property for up to 8 people per day for up to 66 days over the course of one year.
The San Joaquin County Superior Court held a final hearing today on the Department of Water Resources’ (DWR) Petitions for Entry seeking access to hundreds of Delta properties for the purpose of conducting certain geological activities related to the conveyance alternatives currently being considered as part of the Bay Delta Conservation Planning process. DWR sought entry via the precondemnation statutes found at Code of Civil Procedure sections 1245.010 through 1245.060.
On December 14, 2010, Judge Oliver Wanger of the United States District Court for the Eastern District of California issued a long-awaited decision in the Delta Smelt Consolidated Cases. The case consists of five consolidated challenges to the 2008 U.S. Fish and Wildlife Service’s (Service) Biological Opinion (BiOp) addressing the impacts of the coordinated operations of the federal Central Valley Project (CVP) and State Water Project (SWP) on the delta smelt. (San Luis & Delta-Mendota Water Authority, et al. v. Salazar, et al.; State Water Contractors v. Salazar, et al.; Coalition for a Sustainable Delta, et al. v. U.S. Fish & Wildlife Serv., et al.; Metropolitan Water Dist. v. U.S. Fish & Wildlife Serv., et al.; Stewart & Jasper Orchards, et al. v. U.S. Fish & Wildlife Serv., No. 1:09-CV-407 OWW DLB (E.D. Cal. filed March 3, 2009).) In a 225-page decision, Judge Wanger granted Plaintiffs’ motion for summary judgment on certain challenges relating to the Service’s failure to use the best available science in support of the BiOp and the associated Reasonable and Prudent Alternative (RPA). The court then remanded the BiOp to the Service to address the identified deficiencies. However, the court also determined a number of provisions within the BiOp were amply supported by the record, including the BiOp’s general conclusion that entrainment by SWP and CVP operations adversely affect the delta smelt. A January 4, 2011, status conference has been scheduled to address the next steps in the case and the possible need for future proceedings in light of the decision.
Supreme Court to Hear Water Right Fees Case in December
In 2003, several organizations and hundreds of individual water right holders challenged new charges on water rights enacted by the Legislature under the guise of “regulatory fees.” These organizations and water right holders argued, in part, that the charges violated Proposition 13’s prohibition on new and increased taxes absent a two-thirds vote and that the charges, also imposed on water rights held by the United States, violated federal law. While the Third District Court of Appeal held that the underlying statutes did not violate Proposition 13, the Court invalidated the State Water Resources Control Board’s regulations implementing the statutes, finding the regulations resulted in an unlawful tax. The case is currently pending at the California Supreme Court, and oral argument is scheduled to be heard in Los Angeles on December 7, 2010.
On September 2, 2010, the California Water Impact Network (C-WIN), joined by the California Sportfishing Protection Alliance (CSPA) and AquAlliance, filed a petition for writ of administrative mandamus in Sacramento County Superior Court challenging the validity of actions taken and not taken by the California State Water Resources Control Board (State Board) and the California Department of Water Resources (DWR). The petition alleges that by allowing continued export of Bay-Delta water despite evidence of ecosystem decline, the State Board and DWR have failed to protect the public trust, violated the California Constitution by allowing unreasonable use and diversion of water, and failed to properly enforce permit and licensing conditions. The petition further alleges the actions of the State Board have resulted in a marked decline in threatened and endangered species such as the Chinook salmon and Delta smelt, and will continue to cause extensive damage to the Bay-Delta estuary. C-WIN and its partners are seeking to enjoin DWR from diverting Bay-Delta water, and prevent the State Board from allowing such diversions, until such time as their operations conform to the law.
On August 10, 2010, Governor Schwarzenegger signed AB 1265, removing the $11 billion bond measure passed as part of the “comprehensive” water package in 2009 from the November 2010 ballot, delaying the bond vote until 2012. In addition to many other projects that would be funded by the Bond, $2.25 billion in appropriations were identified for Delta sustainability, including funding for activities contemplated by the Bay Delta Conservation Plan (BDCP) and implementation of other projects consistent with the Delta Legislation enacted last year. While there has been much discussion of the affordability of the Bond and the likelihood of its passage, there has not been a great deal of discussion of the potential implications of delaying the Bond. In particular, a delay in the Bond will likely have implications for the BDCP and may result in legislative authorization for “fees” to pay for Delta restoration.
On March 8 and March 10, 2010, the California Department of Water Resources (DWR) will hold “Listening Sessions” for members of the public to comment on DWR’s implementation of the Water Conservation Act of 2009 (Senate Bill X7 7). The March 8 meeting will take place in Sacramento, while the March 10 meeting will be held in Los Angeles. SB 7 was part of the new water legislation package passed in late 2009 that addressed a number of water issues, including conservation. See “California Legislature Passes New Delta and Water Policy Legislation.” This bill specifically set urban water use targets designed to result in a 20 percent reduction from the baseline daily per capita water use by December 31, 2020 (20% by 2020).
On February 5, 2010, Judge Oliver Wanger of the United States District Court, Eastern District of California (Court) granted a temporary restraining order and preliminary injunction halting implementation of a Central Valley Project and State Water Project pumping restriction aimed at protecting endangered salmon. The effect of the injunction, however, was short-lived. Less than a week later, on February 10, 2010, Judge Wanger denied an application to enjoin a nearly identical pumping restriction aimed at protecting Delta smelt. The smelt pumping restriction became effective the day of the Court ruling and will likely last until March 2010.
In late 2009, the California Legislature passed legislation requiring the State Water Resources Control Board (State Water Board) to develop new flow criteria for the Sacramento-San Joaquin Delta (Delta) ecosystem to protect public trust resources. As an initial step towards complying with this mandate, on January 7, 2010, the State Water Board held a pre-proceeding conference to prepare for and discuss procedural aspects of its upcoming informational proceeding to develop flow criteria for the Delta ecosystem.
Earlier this week, the California Legislature sent the Governor a package of bills touted as a “comprehensive solution” to what is viewed by many as California’s current water crisis. This package, passed in the 2009-2010 Seventh Extraordinary Session, consists of four policy bills and one bond bill. The policy bills are Senate Bills 1, 6, 7, and 8, with Senate Bill 2 being the bond bill. A brief overview of each bill is provided below, with a more detailed analysis to follow in the near future.
On April 13, 2009, the Central Delta Water Agency and South Delta Water
Agency (Delta Water Agencies) filed a Complaint for Declaratory Relief,
Injunctive Relief, and Mandamus challenging the preliminary actions of
various state and federal agencies, urban and agricultural water
purveyors, agricultural interests, and environmental groups related to
the collaborative Bay Delta Conservation Plan (BDCP) process. (Central Delta Water Agency et al. v. United States Fish and Wildlife Service et al.,
United States Eastern District Court, Case No. 09-CV-01003-JAM-GGH.) In
recent years, politicians, state and federal agencies, and various
stakeholders have advocated the BDCP process as a means to improve the
failing San Francisco Bay/Sacramento-San Joaquin Delta (Delta)
ecosystem and increase the reliability of water supplies exported
through the Delta, including consideration of a potential isolated
conveyance facility.
On January 2, 2008, the Delta Vision Committee released its
report to the Governor and Legislature recommending actions to address
the environmental crisis in the Sacramento-San Joaquin Bay Delta (the
"Delta") and shore up the State's hub for drinking and irrigation water
supply. Among the most significant recommendations is the call to
construct an isolated conveyance facility that would divert water
around the Delta. Other recommendations, however, will likely be
equally contentious to certain stakeholders.
