Judge Blasts Feds for Wet-Year Water Grab

     (CN) – The government broke the rules when it restricted pumping from the Sacramento-San Joaquin Delta for two weeks in June 2011 during “excess water conditions,” a federal judge ruled on Monday.
     California went through an extremely wet year in 2011 – in stark contrast to the drought the state is currently experiencing – which meant excess water in the Sacramento-San Joaquin Delta.
     Staring on June 8, 2011, the U.S. Bureau of Reclamation ordered reduced export pumping for a two-week period in order to meet certain environmental requirements, prompting the San Luis & Delta-Mendota Water Authority and one of its member districts, Westlands Water District, to file a lawsuit.
     The case required U.S. District Court Judge Lawrence O’Neill to look at a potential conflict between two provisions of the 1992 Central Valley Improvement Act, or CVPIA.
     The first provision requires the Secretary of the Interior to comply with a 1985 agreement between the United States and the California Department of Water Resources for coordinated operation of the federal Central Valley Project and the State Water Project, under which the U.S. Bureau of Reclamation is required to export and store as much water as possible within its physical and contractual limits when the Delta is in “excess water conditions.”
     The California State Water Project and the Central Valley Project were designed to provide irrigation and municipal water to contractors throughout the state. Of the contracted water supply, 70 percent goes to urban users and 30 percent goes to agricultural users.
     However, another provision of the CVPIA mandates that the Interior Secretary must dedicate 800,000 acre-feet of water every year to serve certain fish and wildlife restoration purposes.
     Reclamation’s decision in 2011 to restrict export pumping from the Delta in order to implement this fish, wildlife and habitat restoration purpose violated the Administrative Procedure Act, O’Neill found.
     The bureau had a large degree of flexibility as to when and how it could dedicate and manage the annual requirement of 800,000 acre-feet of water for the purpose of habitat restoration. The water could have been dedicated at any point during the year, O’Neill found.
     And the Secretary of the Interior “is entitled to considerable discretion in the timing of and manner by which it may make dedications” under the provision, O’Neill said in a 45-page ruling.
     But the requirement to export and store as much water as possible for the Central Valley and State Water projects during excess water conditions is not flexible.
     “The provision that we were relying on is very specific and says that you can’t refuse or make voluntary cuts to your pumping during excess water times,” attorney Daniel O’Hanlon of Kronick Moskovitz Tiedemann & Girard, the law firm that represented Westlands Water District in the lawsuit, told Courthouse News.
     “The court found that requirement to be more specific than the general direction under the 800,000 acre-foot account provision in the statute. There are a lot of different actions that the Department of the Interior can take to get the 800,000 acre-feet and a lot of different times of the year that it can do it. There was nothing compelling them to take that action of cutting the export pumping at that time,” O’Hanlon said.
     O’Neill found in favor of San Luis & Delta-Mendota Water Authority and Westlands Water District on their Administrative Procedure Act claim, holding that by imposing the pumping restrictions, the government took a final agency action “not in accordance with law.”
     The government’s reduction in pumping caused approximately 40,000 acre-feet of water not to be pumped during that two week period, O’Hanlon said.
     However, “because of the conditions in 2011 – a wet year – as it turned out, they were able to pump more water later and actually made up for that lost water,” he said.
     The decreased pumping did not affect today’s severe water shortage, O’Hanlon said. But the decision is important going forward because it can potentially “help avoid future loss of water supply that might otherwise occur,” he added.
     “What this establishes is that during periods of excess water conditions, the Bureau of Reclamation cannot make discretionary decisions when it comes to pumping. This decision helps to establish – or to confirm, from our point of view – the rules that apply when the Delta is in these excess water conditions. The court has declared the law, so presumably the government will follow it going forward,” O’Hanlon said.
     Representatives for the government did not immediately return a request for comment.

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