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Feds sue water board over flows decreeFeds sue water board over flows decree

Board imposed minimal flows of up to 50 percent in three rivers.

Tim Hearden

March 29, 2019

5 Min Read
San Joaquin River
Unimpaired flows down rivers like the San Joaquin will have to increase in a state plan that opponents say will cripple the agriculture industry in California.

The federal government is making good on its threat to sue the California State Water Resources Control Board over a minimal flows plan that officials say threatens operations of the New Melones Dam east of the San Joaquin Valley.

Suits by the U.S. Departments of Justice and Interior in state and federal courts allege the water board failed to follow state environmental laws in its Dec. 12 decision to require unimpaired flows of up to 40 percent to 50 percent in the Stanislaus, Merced and Tuolumne rivers.

Farm groups had implored the board to reject the mandate, which was imposed after voluntary agreements with water agencies on the Merced and Tuolumne rivers proved elusive. So, too, had officials from the U.S. Bureau of Reclamation, which threatened legal action if the water board devalued the federal government’s investment in its water projects.

"The plan poses an unacceptable risk to Reclamation’s water storage and power generation capabilities at the New Melones Project in California and to local recreational opportunities,” bureau Commissioner Brenda Burman said when the suits were filed March 28. “We pledge our commitment to environmentally and economically sound water management for California’s farms, families, business, and natural resources, and the American public as a whole.”

George Kostyrko, a spokesman for the water board, told The Associated Press the agency looks forward to defending the plan, which he says involved years of analysis and public input.

The suits allege the board's decision violated the California Environmental Quality Act, a statute that requires state and local agencies to identify the significant environmental impacts of their actions and to avoid or mitigate those impacts, if feasible.

Alleged violations

The agencies argue the board violated CEQA in three ways:

  • By failing to provide an accurate, stable and finite project description, because the board analyzed a project materially different from the project described in the project description;

  • By improperly masking potential environmental impacts of the amended plan by including carryover storage targets and other reservoir controls – mitigation measures – in its impacts analysis and by not analyzing the impacts of the amended plan on the environment without reservoir controls; and

  • By failing to adequately analyze the impacts of the amended plan, including with respect to water temperature and related water quality conditions, and water supply.

“The environmental analysis by the California State Water Resources Control Board hid the true impacts of their plan and could put substantial operational constraints on the Department of the Interior’s ability to effectively operate the New Melones Dam, which plays a critical role in flood control, irrigation, and power generation in the Sacramento region,” said Assistant Attorney General Jeffrey Bossert Clark for the DOJ’s Environment and Natural Resources Division. “The Department of Justice will continue to advocate on behalf of our federal partners, especially when it comes to the proper application of federal and state environmental laws.”

As alleged in the lawsuits, the United States will be forced to encounter operational constraints on the New Melones Project, loss of available surface water supplies for New Melones Project purposes, including Central Valley Project (CVP) water service contracts, and involuntary dedication of federal reservoir space for board purposes.

The New Melones Dam is a federally owned Reclamation facility and a component of the federal CVP.  The dam holds back water from the Stanislaus River under permits issued by the state, and delivers water from storage to irrigation and water districts under contracts entered into under federal reclamation law, the departments explain in a news release.

The lawsuits contend that the new flow objectives will significantly reduce the amount of water available in New Melones reservoir for meeting congressionally authorized purposes of the New Melones Project, including irrigation, municipal and industrial purposes, power generation, and recreational opportunities at New Melones. The reduced water available for New Melones Project purposes would also impair Reclamation’s delivery of water under contracts it presently holds with irrigation and water districts, the agencies assert.

Only the latest

The federal actions follow earlier suits filed by districts in the San Joaquin Tributaries Authority and the California Farm Bureau Federation, challenging the state’s right to arbitrarily increase flows in the three rivers.

The board had delayed its decision from last summer as Department of Water Resources director Karla Nemeth and Department of Fish and Wildlife director Charlton Bonham worked on voluntary agreements with water users as potential alternatives to imposing minimum river flow requirements as part of the Bay-Delta Plan, a management blueprint for the estuary that includes the San Francisco Bay and Sacramento-San Joaquin River Delta.

The state reached pacts in numerous watersheds north of the Delta that were to be involved in Phase 2 of the updated Bay-Delta Plan, including the Sacramento, Feather, Yuba, American and Mokelumne rivers. The agreements include some additional flows at needed times while placing a big emphasis on improving habitat.

On the Tuolumne River, the Modesto and Turlock irrigation districts and San Francisco Public Utilities Commission agreed to establish a $38 million conservation fund to restore floodplain as well as river-rearing habitat while setting up a “robust” flows plan, Bonham says.

Talks with water agencies along the Stanislaus and Merced rivers failed to reach an agreement before the water board’s December hearing. Districts say they were unable to finish their negotiations by the water board’s hard deadline, despite being extremely close.

“It’s the decimation of a large portion of agriculture in the middle of the nation’s most productive food belt that should concern everyone,” Oakdale Irrigation District general manager Steve Knell has said. “All this loss of productive agriculture to gain 1,103 more salmon a year – per the state’s own analysis – doesn’t make sense.”

The United States is represented in this action by Assistant Attorney General Clark and United States Attorney McGregor W. Scott; with lead counsel Stephen M. Macfarlane, Romney Philpott, Erika Norman of the Natural Resources Section; and Kelli L. Taylor of the U.S. Attorney’s Office for the Eastern District of California, according to the federal release.

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