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March 20, 2019  |  Written by Brenda C. Bass

Litigation Over California WaterFix Slows Following Governor’s State of the State Address

In the month since Governor Newsom announced that he does not support a dual-tunnel Delta water supply conveyance, activity in the more than 20 state and federal lawsuits challenging California WaterFix and other administrative approval processes related to the “twin tunnels” has slowed or been briefly stayed.  The stays reflect the uncertainty surrounding the project in light of the Governor’s comments and the changes, if any, the Department of Water Resources (DWR), the state agency leading the WaterFix effort, will adopt in response.

At DWR’s request, the State Water Resources Control Board (State Water Board) stayed pending water rights change proceedings for 60 days on March 5, 2019.  In the State Water Board proceeding, DWR seeks approval to add the intakes for the twin tunnels to the locations from which it may withdraw water under its water rights permits in the Sacramento-San Joaquin River Delta.  The State Water Board’s stay order acknowledged DWR’s position that “the stay will allow DWR enough time to assess how this change will affect existing and any new permit and planning work, including the WaterFix petition process.”

DWR also requested a 90-day stay of two federal court cases challenging WaterFix permits issued under the federal Endangered Species Act.  The United States District Court for the Eastern District of California requested further information from DWR about its plans with respect to project implementation during any stay before ruling on temporarily staying litigation in Bay.org v. Bernhardt, et al., Case No. 1:17-cv-01176-LJO-EPG.  This litigation is further along than state court litigation on WaterFix, with motions for summary judgment fully briefed in one case and partially briefed in the other.

Last week, the Sacramento County Superior Court ordered a brief stay of coordinated litigation challenging DWR and the California Department of Fish and Wildlife’s compliance with the California Environmental Quality Act and California Endangered Species Act, following a request by the plaintiffs in those actions for a 60-day stay.  The court agreed that a temporary stay until May 2, 2019 will allow the parties to determine the impact that potential changes to WaterFix would have on the cases.  The court also requested further briefing on whether another part of the litigation, concerning the validity of bonds DWR proposes to issue for WaterFix, would be affected by a change in the size and scope of the WaterFix project.

The State of the State Address effectively paused the WaterFix project’s progress through pending administrative approval processes and litigation.  Courts and other interested parties recognize that the WaterFix project approved in July 2017 is likely to change, but there is little clarity about how WaterFix will change at the present.  All of the pending stays are relatively short, and it is unclear whether they will be extended if DWR fails to definitively explain its plans for WaterFix in the next few months.

For additional information please contact Brenda Bass at bbass@somachlaw.com.

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