Lawsuits from Central Valley, Bay Area keep state ‘water grab’ tied up in courts

An assortment of groups, from a leading farming organization to a water supplier for Silicon Valley, joined the legal fray in courts over the State Water Board decision in December to reduce water diversions for farms and cities from the Tuolumne, Stanislaus and Merced rivers.

Monday, the California Farm Bureau Federation said it filed a lawsuit in Sacramento Superior Court, charging the water board’s plan misrepresents and underestimates the impacts on Central Valley agriculture, which is the lifeblood of local communities. The plan would require irrigation districts to leave 30 to 50 percent of watershed runoff in the rivers from February through June to push young salmon downstream to the San Joaquin-Sacramento delta and the ocean.

Lawsuits opposing the Dec. 12 decision were filed in early January on behalf of Modesto, Turlock, Oakdale, Merced and South San Joaquin irrigation districts. The Farm Bureau, with 36,000 members in California, filed its own suit because many of its members outside those water districts are affected by the state board decision, a spokesman said.

The suit charges that the Bay-Delta water quality plan for the lower San Joaquin River and its tributaries violates the California Environmental Quality Act because the economic losses and community impacts are “insufficiently analyzed, insufficiently avoided and insufficiently mitigated.”

Jim Houston, the Farm Bureau’s manager of government and legal affairs, said the state’s environmental review also failed to consider impacts related to California’s Sustainable Groundwater Management Act. After irrigation deliveries are cut, farmers will desperately turn to groundwater pumping to keep their trees alive, but are certain to run into SGMA restrictions.

According to the Farm Bureau, the state board brushed off the warnings of damage to the ag industry and approved a salmon restoration plan that simply entails letting more water flow in rivers. A different approach, including well-timed water releases and lower water temperatures during spawning, food supply and habitat projects, and efforts to control predation of juvenile salmon, is a better solution for fish and people, the Farm Bureau contended.

The emotions leading up to the Dec. 12 decision — and the legal action that’s followed — have touched off debate on what exactly could restore a severely impaired delta estuary and depleted salmon populations and what it will cost for Central Valley communities, Bay Area water customers and Southern California interests that rely on the delta.

In updating the Bay-Delta water quality plan, the State Water Board is expected to balance the needs of cities, industry, recreation, agriculture and wildlife. A 2010 state report, often cited by environmentalists, said 60 percent of unimpaired flow from the San Joaquin and its branches were desirable for creating natural conditions for native fish species in the estuary, which mainly consists of man-made channels and diked farmland.

As a regulatory agency, the state water board is obligated to harmonize the competing interests that receive Northern California water that’s transported through the delta by the state and federal water projects. Near the end of the Dec. 12 meeting in Sacramento, the board members agreed to delay the next step in the process until March, which allowed more time for voluntary settlement talks between state Department of Natural Resources staff and local irrigation districts.

Those talks have focused on a $1.7 billion plan, unveiled at the Dec. 12 hearing, for supporting salmon and refreshing the delta with 700,000 acre feet of water from the Sacramento and San Joaquin river systems.

The State Water Board decision also is opposed by the San Francisco Public Utilities Commission, which is supporting litigation to protect its Tuolumne River supplies in Hetch Hetchy Reservoir, the source of deliveries for 2.7 million Bay Area water customers.

Also challenging the plan is the Santa Clara Valley Water District. Its lawsuit in mid-January attacks the state’s environmental review for not accounting for depletion of groundwater in Santa Clara County. About 15 percent of water from Silicon Valley cities like San Jose, Palo Alto and Mountain View comes from the San Francisco PUC.

The Santa Clara water agency agreed with San Francisco and the Central Valley plaintiffs that there are more effective solutions for increasing the salmon population.

“We respect the state’s efforts in the last few years to address the issue of fish decline,” said board chair Linda LeZotte of the Santa Clara district, in a news release announcing the suit. “We hope the courts can help us all arrive at a balanced decision that benefits the delta and doesn’t leave the Silicon Valley high and dry.”

The delta plan also drew a Jan. 25 lawsuit from a coalition that wants to save the historic migrations of chinook salmon in the rivers.

The Pacific Coast Federation of Fishermen’s Associations charged the plan has insufficient flows for protecting imperiled salmon and other species in the delta. The coalition, including the North Coast Rivers Alliance and Winnemem Wintu Tribe, claims that numerous public trust resources, including fish, wildlife and recreation, will be adversely affected because the river flows were set below the 60 percent in the state’s 2010 flow criteria report.

Berkeley attorney Stephan Volker, representing the coalition, said in an email Tuesday the proposed voluntary settlements don’t come close to restoring the unimpaired flows recommended by the State Water Board’s scientists.

A water board led by Chairwoman Felicia Marcus, a former lead attorney for the Natural Resources Defense Council, hasn’t given Central Valley leaders much confidence of finding an acceptable middle ground.

MID and TID officials have assured that lawsuits can delay implementation of the Bay-Delta plan for years. The suit on behalf of TID claims the water board approved a different Bay-Delta plan than was analyzed in the environmental review. A plan that originally specified 40 percent unimpaired flows February through June later evolved to include “flow shaping” and “flow shifting” at different times of year, reservoir refill restrictions in dry years and minimum storage requirements.

Those additional elements are expected to wreak the most damage on the local economy and communities and were not adequately studied, according to Arthur Godwin, special counsel for TID. The district’s suit also alleges the Bay-Delta plan violates state and federal due process laws; that is, water rights are property and property can’t be taken away without due process.

In addition, TID also claims the board’s environmental review was “unlawfully segmented” when the Bay-Delta plan was broken into two phases looking separately at the San Joaquin and Sacramento watersheds. Godwin cites scientific opinion affirming that the delta issues can’t be resolved without contributions from both river systems.