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April 2, 2019  |  Written by Kristian C. Corby

The Federal Government Challenges the State Water Board’s Amended Bay-Delta Water Quality Control Plan

On March 28, 2019, the United States Department of Justice and the Department of the Interior (collectively, “Federal Government”) filed lawsuits in both federal and state court challenging the State Water Resources Control Board’s (State Water Board) recent amendments to the Water Quality Control Plan for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (Amended Plan).  The Federal Government’s lawsuits allege that the State Water Board violated the California Environmental Quality Act (CEQA), and set the stage for another battle between the Federal Government and the State of California over how water resources should be managed in the Bay-Delta.

The Amended Plan was approved and adopted by the State Water Board on December 12, 2018, and has touched off a series of lawsuits due to its controversial unimpaired flow requirements for the Lower San Joaquin River and its tributaries – the Stanislaus, Tuolumne, and Merced rivers.  The State Water Board adopted the Amended Plan with the explicit purpose of addressing the ecological crisis in the Delta that has brought some native fish species to the brink of extinction.  While the Amended Plan did not go as far as a flow criteria report adopted by the State Water Board in 2010 that concluded that 60 percent of the unimpaired flow of the Lower San Joaquin River would be desirable for declining fish populations, the Amended Plan calls for 30 to 50 percent unimpaired flow.  The State Water Board proposes to assign responsibility for meeting these unimpaired flow objectives to water right holders through water rights proceedings and has suggested that water users could develop and submit agreements between water users to address how the new unimpaired flow objectives will be implemented.  Including the Federal Government’s lawsuits, there are currently ten different lawsuits challenging the Amended Plan.

The Federal Government’s lawsuits challenge the Amended Plan by asserting that it fails to comply with CEQA and congressional mandates that control the operation of the New Melones Dam, which is part of the federally run Central Valley Project (CVP).  CEQA is a state law that requires state and local agencies to identify the significant environmental impacts of their actions and, if feasible, to avoid or mitigate those impacts.  The lawsuits allege that the Amended Plan (1) failed to provide an accurate, stable and finite project description; (2) the State Water Board improperly disguised potential environmental impacts of the Amended Plan; and (3) the State Water Board failed to adequately analyze the impacts of the Amended Plan on water temperature and related water quality conditions.

The lawsuits also allege that the Amended Plan will significantly impact the Federal Government’s operation of New Melones Dam by reducing available surface water supplies and causing an inability to meet CVP water service contracts, reducing power generation, affecting flood control operations, and eliminating recreational opportunities.  New Melones Dam was established by Congress to provide water for irrigation, municipal, and industrial purposes.  The Federal Government alleges that the Amended Plan converts the water stored behind the dam from being used for congressionally authorized purposes, to a purpose mandated by the State Water Board.  Though the Federal Government’s complaint does not use the word “preemption,” these allegations concerning the State Water Board’s interference with congressional directives establish a foundation for the Federal Government to amend its complaint and pursue a preemption claim as this litigation proceeds.

To the extent that the Federal Government’s state court lawsuit shares the same issues as the other state court lawsuits, it is likely that they will be consolidated into one action in order to improve efficiency and consistency in the court rulings.

Find the complaint filed in federal court here.  Find the complaint filed in state court here.

For additional information on this topic, please contact Kristian Corby at kcorby@somachlaw.com.

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