LOS ANGELES--California's legal battles over water are likely to escalate in
2013, once the Bay Delta
Conservation Plan and a water
quality plan for the Sacramento-San Joaquin Delta are finalized later this
year, several attorneys told BNA.
This new wave of lawsuits would add to the already long list of water-related
disputes now wending through federal and state courts, many of which could have
far-reaching implications for government agencies that manage water resources,
water users, and the environment.
Being developed through a joint federal and state process, the Bay Delta
Conservation Plan is a complex, long-term strategy for better managing the delta
and protecting, restoring, and enhancing its fragile ecosystem. The draft plan
calls for a twin-tunnel conveyance system to be built around the delta, a
proposal that has drawn opposition from the environmental advocates, Delta
residents, and others.
“One thing is certain, the Bay Delta Conservation Plan is going to generate
litigation,’’ Richard M. Frank, a professor at the University of California,
Davis law school and director of the school's California Environmental Law and
Policy Center, told BNA.
With the large number of state and federal agencies involved in crafting the
plan, attorneys said it is difficult to predict what types of lawsuits would be
The plan “will face a number of legal challenges,’’ Phil Isenberg, chairman
of the state's Delta Stewardship Council, said at a recent UC Davis event.
“Those challenges will come from all sides of the water battle and continue for
The California State Water Resources Board plans to adopt updated flow
standards and water quality objectives in late summer as part of its strategy
for the San Francisco/Sacramento-San Joaquin Delta Estuary, which also may also
trigger legal action, Andy Sawyer, assistant chief counsel at the water board,
Legal challenges to these plans have the potential to stall programs and
measures designed to implement legislation enacted in 2009 to reform the state's
management of the delta, which provides irrigation for 7 million acres and
drinking water for 25 million Californians.
Among the cases moving through the courts now are several whose outcomes
could impose new obligations on federal and state agencies overseeing water
projects, impact the state's administration of water rights, and sideline or
void existing agreements.
For agricultural and urban water users, the decisions could mean less water
flowing their way. The stakes are equally high for threatened and endangered
fish, which need sufficient water flows.
As the hub of the state's water system, the California Delta is ground zero
for the state's water wars, where the underlying issue in the disputes is who
gets water and how much of it, especially when flows must be diverted to comply
with the Endangered Species Act and when dry winters mean reduced supplies for
competing water interests.
Many of the current cases target the joint operation of the U.S. Bureau of
Reclamation's Central Valley Project (CVP) and California's State Water Project
(SWP). The projects move water from rivers and dams in the north through the
Delta to reservoirs and water districts in the Central Valley, the San Francisco
Bay Area, and Southern California.
Take, for instance, the lawsuits irrigation districts, farmers, and other
water agencies throughout the state have filed challenging scientific documents,
called biological opinions, the bureau relied on to curtail flows through the
Central Valley Project/State Water Project facilities to protect the threatened
Delta smelt and endangered salmon (Delta Smelt Consolidated Cases, E.D.
Cal., No. 09-cv-407 & Consolidated Salmonid Cases, E.D. Cal., No.
In separate decisions in 2010 and 2011, the U.S. District
Court for the Eastern District of California agreed with water users' claims
that the biological opinions were scientifically flawed, for various reasons,
and ordered the government to rewrite the documents.
Delta Smelt, Salmon
Delta Smelt Consolidated Cases, E.D. Cal., No. 09-cv-407; Consolidated
Salmonid Cases, E.D. Cal., No. 09-cv-1053
Federal district court finds the science behind Bureau of Reclamation's
effort to protect threatened Delta smelt and endangered salmon flawed and orders
rewrite of biological opinions. Appeal by government agencies, environmental
advocates, and fisherman pending in the Ninth Circuit.
The court also found that in implementing the water curtailment plans, the
bureau violated the National Environmental Policy Act. The government failed to
take a hard look at the impacts the cuts in deliveries would have on the
plaintiffs, the court said.
Federal and state agencies and environmental advocates have challenged many
of the district court's findings, which were briefed and argued in 2012, and are
now awaiting decisions from the U.S. Court of Appeals for the Ninth Circuit.
If allowed to stand, the district court rulings requiring a NEPA
environmental review whenever the bureau implements an operating decision to
comply with the ESA would represent a major change, Reed D. Benson, a law
professor at the University of New Mexico who focuses on water law in the
western United States, told BNA. Historically, the courts have not required
environmental reviews for federal agencies carrying out their ESA duties, he
“Requiring the bureau to complete a full environmental impact statement
before it cuts water deliveries to comply with the Endangered Species Act could
greatly delay implementation of protections for species on the brink of
extinction,’’ Benson said.
Here, “the water contractors are suing under NEPA, using the Magna Carta of
U.S. environmental laws, for harm caused by the Endangered Species Act,’’ he
said. “This is an obstruction of the ESA.’’
In another Delta case, the Natural Resources Defense Council and other groups
continue a battle to overturn a 2009 district court ruling that blocked their
effort to force the rewriting of long-term water contracts, upon their renewal,
to protect the smelt under the Endangered Species Act.
Water Delivery Case
NRDC v. Salazar, 9th Cir., No. 09-17661, 7/17/12
The Natural Resources Defense Council and other groups continue a battle to
overturn a 2009 district court ruling that blocked their effort to force the
rewriting of long-term water contracts, upon their renewal, to protect the smelt
under the Endangered Species Act.
Last year, a Ninth Circuit panel voted 2-1 to affirm the
ruling that the bureau's renewal of 41 contracts with Sacramento River
Settlement Contractors, a group of irrigation districts and mutual water
companies with historic rights to the river water, is not subject to the ESA and
that the environmental group lacked standing to sue (NRDC v. Salazar, 9th
Cir., No. 09-17661, 7/17/12).
On March 5, the Ninth Circuit issued an order granting NRDC's petition for an
en banc rehearing (2013 WLPM 7, 3/6/13).
“The majority in the 2-1 panel decision failed to follow Supreme Court and
Ninth Circuit precedent, and en banc rehearing gives the full court a chance to
correct those errors,’’ NRDC attorney Kate Poole told BNA in an email.
Central Valley Project contractors in Sacramento Valley are awaiting a
decision from the Ninth Circuit in a legal battle asserting that the state's
“area of origin’’ statute (Calif. Water Code Sec. 11460) entitles them to their
full contracted water allocations over exports to users outside of the watershed
(Tehama-Colusa Canal Authority v. Department of the Interior,
9th Cir., No. 11-17119).
Central Valley Project
Tehama-Colusa Canal Authority v. DOI, 9th Cir., No. 11-17119
Central Valley Project contractors in Sacramento Valley await decision from
the Ninth Circuit in area-of-origin case, asserting the state law entitles them
to full contracted water allocations over exports to users outside of the
At issue is whether state law enacted to ensure water users in areas where
water originates have reasonably adequate supplies applies to the Tehama-Colusa
Canal Authority contractors and if the Bureau of Reclamation can reduce their
contracted water allocations in dry years.
The final ruling in this case has implications for how the Central Valley
Project and the State Water Project export water.
In 2011, the federal district court rejected the Tehama-Colusa Canal
Authority's argument that the Bureau of Reclamation violated the area of origin
when curbing its allocations during dry years.
The district court held that the Tehama-Colusa contractors did not have
priority rights for Central Valley Project deliveries in dry years over exports
out of the area for multiple reasons, including: the shortage provision in the
contracts allow the bureau to reduce allocations; water in the irrigation canal
is from stored Central Valley Project facilities, not natural flows protected by
the area of origin law; and the water users never applied to the state board for
area of origin permits.
A key question on appeal is if the district court correctly interpreted prior
case law and state decisions involving the area of origin statute and Central
Valley Project operations.
In court documents, the Tehama-Colusa Canal Authority contends the district
court ruling conflicts with a 2006 California appellate court opinion and a
state water board ruling on the area of origin law.
Tehama-Colusa Canal Authority water contractors received only 40 percent of
the water under their contracts in 2008 and 2009, while the bureau is exporting
supplies to users to the south, according to information on the authority's
website. Reduced allocations forced farmers to leave land fallow, slowed the
area economy, and required the purchase of additional water supplies, the
At issue, “is a huge amount of their water supply,’’ Steve P. Saxon, an
attorney at Downey Brand LLP in Sacramento who is representing the authority,
told BNA. “It's significant.’’
California's Department of Water Resources and State Water Resources Control
Board have filed a brief on behalf of the federal government, asking the Ninth
Circuit to affirm the ruling. “It was correct, and, if reversed, could impact
DWR's operation of the SWP and ongoing litigation in another water district over
breach of contract claims,” the state said in its brief. Solano County Water
Agency, Napa County Water Conservation District, Butte County, and Yuba City
have “area-of-origin” claims pending in state court against the Department of
Water Resources (Solano County Water Agency v. DWR, Cal. Super. Ct., No.
Water users in the San Joaquin Valley to the south who intervened in the case
also want the district court ruling upheld.
A series of long-standing disputes over the 2003 Quantification Settlement
Agreement (QSA) involving water transfers from agricultural Imperial County to
San Diego could be headed toward resolution (Quantification Settlement
Agreement Cases, Cal. Super. Ct., No. JC 4353).
Quantification Settlement Agreement Cases, Cal. Super. Ct., No. JC 4353
A California Superior Court stays judgment for 90 days to give Imperial
Irrigation District time to negotiate settlement of California Environmental
Quality Act allegations and other issues.
On March 6, a California Superior Court judge in Sacramento overseeing
consolidated cases, most over the environmental impacts of the agreement, stayed a judgment in the
litigation for 90 days at the request of the Imperial Irrigation District to
give the parties time to negotiate a global agreement (see related story).
Litigation in state court challenging the constitutionality of the QSA and
related agreements ended last year with the California Supreme Court declining
to review an appellate panel decision validating the agreements, which transfer
as much as 12.9 million acre-feet from agricultural Imperial County to urban San
Diego for 75 years.
A key source of this dispute involves the potential environmental impacts of
the reduced agricultural flows to the Salton Sea that would result from the
decrease in Colorado River water for the state and loss of agricultural water to
San Diego County.
Imperial County, South Coast Air Quality Management District, Metropolitan
Water District of Southern California, and coalitions of local farmers and
landowners are among the entities involved in the lawsuits.
A global settlement would resolve California Environmental Quality Act claims
that grew out of the QSA alleging failure to consider the higher salinity levels
in the Salton Sea that would result from reduce flows, increased air pollution
related to dust from shrinking shores, and wildlife impacts. Other pending
claims involved an alleged violation of the state's open meeting law and a
disagreement over which water providers should be involved in the
A change-of-venue petition in an already potentially ground-breaking water
law case asks a state appeals court to declare the water in the Scott River
“real property’’ (County of Siskiyou v. Superior Court of Sacramento,Cal.
Ct. App., No. C067252, 2/1/11).
'Real Property' Case
Environmental Law Foundation v. State Water Resources Control Board, Cal.
Super, Ct. No. 34-2010-80000583; County of Siskiyou v. Superior Court of
Sacramento , Cal. Ct. App., No. C067252, 2/1/11
Parties await state appellate court decision in a change-of-venue petition
asserting water in Scott River ''real property.'' The underlying case seeks to
extend California's public trust doctrine to groundwater hydrologically
connected to the river.
Declaring river water real property “would redefine property law and water
law,’’ James Wheaton, president and legal director of the Oakland-based
Environmental Law Foundation said. “If that happens potentially any regulation
on the use of the water would be a taking and the government would have to
Wheaton filed the underlying lawsuit that seeks to extend California's public
trust doctrine, which protects the natural environment, to the groundwater
hydrologically connected to the Scott River in Northern California
(Environmental Law Foundation v. SWRCB, Cal. Super. Ct., No.
“This an incredibly important case, a huge case,’’ Downey Brand LLP attorney
Christian Marsh said. “Do we want to apply the public trust doctrine to
While the merits of the underlying case have yet to be briefed, the appeals
court decision on venue is due any day, attorneys involved the case told BNA.
The California Courts of Appeal, Third Appellate District, notified parties in
January that it is on the verge of issuing a decision, according to Roderick E.
Walston with Best Best & Krieger LLP, who is representing Siskiyou County.
At issue is a Sacramento County court's refusal to transfer the case to Siskiyou
County, Walston said. Siskiyou County believes the case should be heard in its
Walston disagreed with comments by Wheaton and others that the declaration of
the river water as “real property’’ would upend state property and water laws
and trigger takings claims.
The argument that the river is real property applies just to the
change-of-venue petition, Walston said. California venue statutes require cases
involving real rights and interests be litigated where those interests are,
Walston said. Civil code defines a “water course” as property, he said.
In December 2012, Yuba County Water Agency challenged a California Superior
Court ruling that upheld the state water board's authority to require increased
cold water, in-stream flows in the Lower Yuba River (YCWA v. SWRCB, Cal.
Ct. App., No. C072870).
At issue is a water board decision amending the agency's water rights permits
to improve conditions in the river to support salmon and steelhead.
Plaintiffs alleged CEQA violations, violations of water rights permits, and
constitutional takings, among other claims.
In its opinion,
the trial court denied the CEQA allegations, held that plaintiffs lacked
standing for the takings claims as the suit involved administrative proceedings,
and found that the water board has authority to revise the permits. Also, the
court dismissed without prejudice claims disputing requirements for updated fish
screens, finding they were premature.
A plan to pump billions of gallons of groundwater from the Mojave Desert and
sell it to Southern California Water Agencies triggered several lawsuits in 2012
(Broines v. Cadiz Inc.,Cal. Super. Ct., No.
Groundwater Pumping Plan
Broines v. Cadiz Inc., Cal. Super. Ct., Cal. Super, Ct., No.
Individuals, businesses, and environmental groups filed various challenges
San Bernardino County and Orange County-based water district's approval of a Los
Angeles-based company's project to mine and sell groundwater underlying its
Mojave Desert property. All the complaints now pending in state court in Orange
Cadiz Inc. has spent years trying to advance the project to capture and sell
the groundwater beneath the 34,000 acres it owns in eastern San Bernardino
County, near Mojave National Preserve and Joshua Tree National Park. Based in
Los Angeles, the company grows citrus and other agricultural crops on about
9,600 acres in Cadiz Valley.
The Center for Biological Diversity and other groups have sued alleging CEQA
violations. The environmental impact report concluded the project would result
in no significant impact on critical desert resources.
A labor group and Tetra Technologies, a salt-mining operation near the Cadiz
property, also filed complaints over the project.
Other allegations target San Bernardino County officials' decision to cede
status for preparation of the environmental analysis to Orange County-based
Santa Margarita Water District, which has contracted to buy much of the
Defendants in the cases include San Bernardino County, Santa Margarita Water
District, and Los Angeles-based Cadiz. Initially filed in San Bernardino County,
the cases have been transferred to California Superior Court in Orange
A dispute over water rights in the Antelope Valley groundwater basin
continues to move forward as the California State Court judge overseeing the coordinated proceeding
works to determine which parties have the right to extract a “safe yield,’’ the
amount of water that can be pumped without depleting the aquifer beyond its
ability to replenish in wet years (Antelope Valley Groundwater Cases,
Cal. Super. Ct., JCCP No. 4409).
Antelope Valley Cases
Antelope Valley Groundwater Cases, Cal. Super. Ct., JCCP No. 4409
State court overseeing coordinated proceeding in dispute over groundwater
works to determine which parties have the right to extract ''safe yield'' level
water from Antelope Valley groundwater basin.
Judge Jack Komer previously determined that the groundwater basin has been in
overdraft for 50 years.
At stake in the 14-year battle are the rights of almost every
landowner--including large farming operations, on both sides of the Los
Angeles-Kern county line that pump groundwater or may sometime in the future
extract the water--and the federal government's right to pump water for Edwards
Air Force Base.
Bakersfield, Calif.-based agricultural firms Bolthouse Farms Inc. and Diamond
Farming Co. filed the initial complaints against several public water suppliers,
including Palmdale Water District, Rosamond Community Services District, and Los
Angeles County Water Service Company.
The proceeding includes cross complaints and two certified classes of
plaintiffs, one of non-pumping landowners--the Willis class--and another class
of small landowner pumpers called the Wood class.
Resolution of these lawsuits will clarify important legal questions
surrounding management of California's scarce water supplies--such as how to
balance the operation of the federal and state water systems with protection for
ecosystems or groundwater management--but battles among the competing water
interests will likely continue in the courts and in the Legislature.
Why? California's water supply is scarce and the state lacks a clear and
integrated approach to managing its resources, according to a 2012 National
Research Council report, Sustainable Water
Management in the California Bay-Delta.
Isenberg, the chairman of the Delta Stewardship Council and a veteran of the
state's water wars, cited the key findings of the report at the California Water
Law & Policy Conference last year. ''Smart policies, hard work and lots of
money can improve the Delta ecosystem, and even California's water supply more
reliable,'' he said, according to a copy of his presentation. ''However,
achieving good results requires tradeoffs, and there will be positive and
negative impacts. The most difficult thing to do is to make clear policy choices
and enforce them. This is the job of policy-makers, not scientists.''