PUBLICATIONS & ARTICLES

The Taking of Water Through the Guise of the Public Trust Doctrine and the Reasonable Use Doctrine: A Taking Is a Taking
By Stuart L. Somach
November 2008

This short paper discusses various potential takings associated with existing and proposed actions for the Sacramento-San Joaquin River Delta (Delta). It does so from the perspective of those with stable senior water rights north of the Delta on the Sacramento River and its tributaries. In this regard, the paper is limited to the subset of water related takings issues and does not directly address other significant takings issues that may also be raised by these same Delta related actions.

The Effects of Global Climate Change on the California Water Rights System
By Stuart L. Somach and Jonathan R. Schutz
June 2008

In California and in the world, the effects of climate change will be felt especially hard in the water sector. Climate change affects water resources in more ways than one. It will affect the amount of water available for use and the times when water is available. It will affect the reliability of our water delivery systems, which have been designed based on current climate models. Climate change will also affect how, when, and where we move water as a society. Nineteen percent of California

Klamath Basin Restoration Agreement, A Convergence of Opportunity, The Water Report, Envirotech Publications, Issue No. 49
By Paul S. Simmons
March 2008

Some of the West's most contentious water resources disputes have occurred in the Klamath Basin of southern Oregon and northern California. Early in 2008, a proposed Klamath Basin Restoration Agreement, intended to address and resolve disputes, was released publicly.

Clean Water Act Regulation of Aquatic Pesticides:
New Exemption Under Attack
By Jacqueline L. McDonald
September 2007

The boundaries of the Clean Water Act (CWA), 33 U.S.C.

South Delta Standards Prompt Financial Contributions for the Development of Central Valley Salinity Management Plan, California Water Law & Policy Reporter, Vol. 17, No. 9, June 2007
By Tess Dunham
June 2007

The Central Valley Regional Water Quality Control Board recently adopted new permit limitations in two National Pollutant Discharge Elimination System permits for wastewater treatment facilities requiring dischargers to help financially support the development of the Central Valley Salinity Management Plan.

Federal Plan Advances to Address Salinity Drainage Issues
By Jacqueline L. McDonald
March 2007

On Friday, March 9, the United States Bureau of Reclamation (Reclamation) released the San Luis Drainage Feature Re-Evaluation Record of Decision, which was prepared to resolve a lawsuit by identifying a strategy for meeting federal planning criteria and provide agricultural drainage service to the San Luis Unit of the Central Valley Project. After analyzing various alternatives, Reclamation identified a drainage plan to provide relief for 379,000 acres of salt-impaired lands in the western San Joaquin Valley. Parties to the lawsuit continue to discuss an alternative proposal.

Boeing Files Lawsuit To Challenge Limitations On Discharges From Its Santa Susana Field Laboratory
By Daniel Kelly
February 2007

In mid-January, 2007, Boeing Company (Boeing) filed a lawsuit challenging the State Water Resources Control Board's Order WQ 2006-0012, upholding the Los Angeles Water Quality Control Board's decision to impose numeric effluent limitations on discharges from Boeing's Santa Susana Field Laboratory in Ventura County.

Delta Protection Commission Concludes The Old Sugar Mill Project Is Inconsistent With The Delta Protection Act
By Kari E. Fisher
February 2007

The Delta Protection Commission, charged with protecting the Sacramento-San Joaquin Delta, ruled in the early hours of January 26, 2007 that the Old Sugar Mill Project approved by Yolo County last year is inconsistent with several policies contained in the Land Use and Resource Management Plan for the Primary Zone of the Delta and the Delta Protection Act.

New Flood Management and Control Legislation Introduced
By Kanwarjit S. Dua
February 2007

Wastewater Collection Systems In Los Angeles County To Fund Environmentally Beneficial Projects In Satisfaction Of Liability For Unauthorized Overflows
By Cassie N. Aw-yang
January 2007

On December 14, 2006, the Los Angeles Regional Water Quality Control Board (Regional Board) adopted Order No. R4-2006-0040 to effectuate a proposed settlement agreement between 18 individual Los Angeles County Sanitation Districts (Districts) and the Regional Board and Santa Monica Baykeeper. The agreement requires the Districts to pay $2.5 million in administrative civil liability for violations of waste discharge requirements stemming from unauthorized overflows from local and regional wastewater collection systems in Los Angeles County between January 2001 and September 2006. The settling parties agreed to divert $2,375,000 of the penalty to supplemental environmental projects.

Governor Schwarzenegger Revives Proposals For Dam Construction
By Eric W. Davis
January 2007

The Schwarzenegger administration has proposed to expand California's water storage infrastructure, and that proposal will call for the construction of two new dams.

Environmental Group Alleges "Paper Water" In Challenging Water Supply Acquisition by Castaic Lake Water Agency
By Jacqueline L. McDonald
January 2007

Water supply planning for new development in Southern California has a large price tag. To date, Castaic Lake Water Agency (CLWA) has incurred $ 6.4 million in litigation expenses resulting from challenges by environmental groups since January 2000. In December 2006, CLWA received yet another legal challenge. The California Water Impact Network (CWIN) field a lawsuit in the Los Angeles Superior Court to challenge CLWA's acquisition of water supplies from the Kern County Water Agency.

Owens River Restoration – Los Angeles Takes First Steps Towards Restoring Portions Of The Lower Owens River
By Daniel Kelly
December 2006

On December 6, 2006, Los Angeles Mayor Antonio Villaraigosa opened a valve, letting water flow down a 62-mile stretch of the Owens River, previously left dry by nearly 100 years of water diversions to Los Angeles.

Appeals Filed With The Delta Protection Commission Challenging Yolo County's Approval Of The Old Sugar Mill Project
By Kari E. Fisher
December 2006

On November 3, 2006, two appeals were filed with the Delta Protection Commission challenging the October 24, 2006 decision of the Yolo County Board of Supervisors in approving the Old Sugar Mill Specific Plan and related actions. The appeals argue that the Old Sugar Mill project, located in Clarksburg, California, conflicts with the Delta Protection Act.

After Years of Stalled Discussions, Truckee River Operating Agreement Could be Finalized in 2007
By Jacqueline L. McDonald
December 2006

The Truckee River flows through California and Nevada, leaving ripples of interstate conflict in its wake. After more than fifteen years of negotiations and environmental studies, an eclectic group of parties nears completion on a comprehensive strategy to manage use of the Truckee River within California and Nevada. The parties are expected to complete a revised draft of the Truckee River Operating Agreement (TROA) and, if done, the final environmental analysis for the TROA should be released in December 2006. Parties to the TROA could execute the final TROA as early as Summer 2007.

Salton Sea Ecosystem Restoration Program Draft Programmatic
By Kanwarjit S. Dua
November 2006

On October 19, 2006, the California Resources Agency, in partnership with the Department of Fish and Game and the Department of Water Resources, released the Draft Programmatic Environmental Impact Report, which contains eight alternatives and one option of no action for restoring the Salton Sea ecosystem.

Lawsuit Challenges Stockton's Use Of Water Fees
By Eric W. Davis
November 2006

The Howard Jarvis Taxpayers Association and a former city finance director have filed a lawsuit challenging the City of Stockton's use of city utility fees to fund the construction of the Stockton Events Center. The lawsuit claims that the use of funds generated from a "fee in lieu of property tax" for projects that are not property-related services is a violation of the California Constitutional Provisions enacted by Proposition 218.

The Planning Agreement Regarding The Bay Delta Conservation Plan Completed
By Kari E. Fisher
October 2006

The Steering Committee for the Bay Delta Conservation Plan (BDCP) recently completed the proposed Planning Agreement for the BDCP. The BDCP is an applicant-driven effort to provide for the conservation and management of aquatic species and regulatory assurances related to water supply reliability and water quality for the Sacramento-San Joaquin River Delta. The goal of the Planning Agreement is to establish a mutually agreeable process for preparing the BDCP.

California Third District Appellate Court Narrows the Ability of State Water Resources Control Board to Impose Term 91
By Cassie N. Aw-yang
October 2006

In a victory for local water and irrigation districts, the California Third District Appellate Court ruled that the State Water Resources Control Board (Board) cannot undermine a local entity's priority water right to meet water quality requirements in the Sacramento-San Joaquin Delta. The Board abused its discretion by imposing "Term 91" requirements on El Dorado Irrigation District while failing to include such restrictions on junior appropriators.

California: Groundwater Management, Conjunctive Use and Water Banking, Western Water Law & Policy Reporter, Vol. 10, No. 5
By Nicholas A. Jacobs
March 2006

With water supplies throughout California struggling to keep up with increasing demand, groundwater remains an important source of supply. Unlike the complicated permitting system for California surface waters, groundwater has historically been unregulated throughout California. Recently, the increasing importance of groundwater as a source of water supply is leading to various forms of regulation, including county ordinance, basin adjudications and efforts by the California State Water Resources Control Board to exercise jurisdiction over certain groundwater by defining it as a "subterranean stream." To be sure, there is a lot going on in California groundwater law.

California: Endangered Species Act Issues Impacting Water Supply, Western Water Law & Policy Reporter, Vol. 8, No. 5
By Nicholas A. Jacobs
March 2004

There is, perhaps, no more important issue in California water than the impact of the federal Endangered Species Act (ESA) and the California Endangered Species Act (CESA) on California water supply. Enforcement, or threat of enforcement, of the ESA and CESA have become the foremost controlling factors in California's development of its water resources. Compliance with the ESA and CESA creates significant impacts on water supply through-out the state. This article provides background on the ESA and CESA, and describes examples of the ESA issues impacting California's water supply.

California: Meeting Water Needs in the Face of Diminished Supply—The Role of Water Conservation and Reuse, Western Water Law & Policy Reporter, Vol. 7, No. 5
By Nicholas A. Jacobs
March 2003

It is no secret that California's rapidly expanding population is outpacing the state's water supply. There is increasing reliance on a relatively static supply of surface and groundwater resources, and, for many reasons, the pace of developing new water supply projects has not kept up with an increasing demand. In recent years, California's state and local governments have begun looking to conservation and reuse as a means towards satisfying this unmet water supply demand. The need to support conservation and reuse is widely recognized, yet regulatory and public perception obstacles have hindered a faster implementation of these crucial projects.

Meeting California's Water Supply Needs: Whatever Happened to Storage? Western Water Law & Policy Reporter, Vol. 7, No. 6
By Nicholas A. Jacobs
April 2003

In 2003, California is home to over 30 million people and boasts the world's fifth largest economy. California's population is expected to grow to nearly 50 million people by 2020. Like many regions of the West, California is already facing water supply shortages in many areas, and without significant new sources of supply the state will soon have annual shortfalls in the millions of acre-feet.

Rethinking the Endangered Species Act: Moving Beyond Conflicts and Promoting Positive Efforts for Conservation
By Jakki McDonald
Fall 2002

Thirty years ago, Congress acted upon a growing concern for resource depletion and species extinction by drafting a species-focused Endangered Species Act (ESA). To emphasize the severity of the national problem, Congress set out to penalize those who harm certain protected species and to mandate protection at all cost. This new law was a wake up call to those involved in rampant development.

Department of Interior v. Klamath Water Users Association: An End to Secret Advocacy by Tribes During Water Allocation Proceedings? Western Water Law & Policy Reporter, Vol. 5, No. 8
By Andrew M. Hitchings
June 2001

In Department of Interior v. Klamath Water Users Protective Association, the United States Supreme Court issued a unanimous decision this term limiting the scope of the federal government's ability to withhold documents under exemption 5 of the Freedom of Information Act.

Simmons, Whither Wallop? Water Supply and Other State Law Implications of Clean Water Act TMDL Regulations, California Water Law & Policy Reporter, Vol. 10, No. 7
By Paul S. Simmons
April 2000

Section 303(d) of the Clean Water Act has come fully awake, and everyone is paying attention. Regulations recently proposed by the U.S. Environmental Protection Agency to govern the listing of "impaired" waters and the development of Total Maximum Daily Loads for impaired waters, 64 Fed. Reg. 46312 (Aug, 23, 1999), drew voluminous comments from throughout the country.

Antitrust Considerations in Water Marketing, Natural Resources & Environment, Vol. 11, No. 2 (ABA Section of Natural Resources, Energy and Environmental Law)
By Stuart L. Somach and Andrew M. Hitchings
Fall 1996

Water supply problems in the eastern United States are very different from water supply problems in the western United States. Problems in the East revolve around water quality. In the West, the focus is upon the availability of water, regardless of quality. Indeed, in the West, arguing about the relative quality of water is a luxury that comes only after the supply has been secured. As Wallace Stegner so accurately stated: "[T]he primary unity of the West is its shortage of water."