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Wednesday, February 28, 2024
Courthouse News Service
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USA Must Look Again at California Water

FRESNO, Calif. (CN) - The federal government must do more environmental review before it can approve renewal of water contracts in California's Central Valley, a federal judge ruled.

The enormous Central Valley Project runs nearly 400 miles through California's Central Valley, from the Cascade Mountains near Redding to the "semi-arid but fertile plains along the Kern River in the south," according to the bureau's website.

The Central Valley Project is managed by the Department of the Interior's Bureau of Reclamation.

The dams, reservoirs, power plants, and canals are used for river and flood control, irrigation, municipal drinking water supplies, and protecting and restoring wildlife.

As lead agency under the Central Valley Project Improvement Act (1992), the Bureau of Reclamation must run the giant system in compliance with state and federal laws, including the Endangered Species Act.

The Bureau must issue an environmental impact statement before it can approve the renewal of "existing long-term water service contracts for successive periods of up to 25 years," U.S. District Judge Lawrence O'Neill wrote in a 32-page order.

If a contract expires before an environmental impact statement can be completed, the Improvement Act allows the Bureau to issue one 3-year interim contract and additional contracts of up to two years.

The Bureau in February 2012 made a finding of no significant impact (FONSI) and issued an environmental assessment for eight interim contracts at issue: the "Three Delta Divisions and Five San Luis Unit Water Service Interim Renewal Contracts 2012-2014."

Finding that the interim contracts were "not a major federal action that will significantly affect the quality of the human environment," the Bureau said it did not have to prepare an environmental impact statement.

It approved the contracts, which applied to water delivered as of March 2012.

The Pacific Coast Federation of Fishermen's Associations and San Francisco Crab Boat Owners Association challenged the contract renewals the next month, claiming they violated the National Environmental Policy Act.

The fishermen claimed the Bureau should have completed an environmental impact statement, that its environmental assessment and finding of no significant impact were inadequate because they ignored the impacts of water diversion on fish and other wildlife, failed to include mitigation measures and alternatives, and relied on an "outdated water needs assessment" to support its conclusion that the Bureau lacks discretion to reject the contracts.

The fishermen accused the Bureau of granting interim contracts to duck its responsibility to conduct NEPA review for long-term contracts, which is mandatory under the Improvement Act.

Judge O'Neill agreed with the plaintiffs, and denied most of the government's motions seeking dismissal.

O'Neill rejected the Bureau's argument that that the associations lacked standing to bring suit because they did not exhaust their administrative remedies.

The Administrative Procedures Act requires plaintiffs advancing NEPA claims to inform the agency of their allegations so the agency has a chance to resolve the issue outside of court. An agency is considered informed about an issue even if the issue was raised in comments made by third parties "so long as the comments brought sufficient attention to the issue," O'Neill wrote.

The associations cited a letter that environmental groups submitted on the draft EA/FONSI for the eight interim contracts. Since the complaint "appears to track the letter almost exactly, and the letter ... provides 'enough clarity [to ensure] the decision maker understands the issue raised," the Bureau's claims must be rejected, denied, O'Neill wrote. (Brackets in ruling.)

The Bureau claimed that de facto contract renewal represents the status quo under NEPA regulations. The associations disagreed, arguing that this unlawfully allows the bureau to avoid analyzing nonrenewal of the contracts.

O'Neill sided with the Bureau on this one and dismissed that claim without leave to amend.

"Here, assuming the truth of the facts alleged in the FAC [first amended complaint], the bureau appropriately defined the status quo as the 'continued delivery of CVP water under the interim renewal of existing contracts which includes terms and conditions required by non-discretionary CVPIA [Improvement Act] provisions.' As in Association of Public Energy Customers, the bureau appropriately assumed continuation of the preset course of action. The indisputable historical use of the resource (water) further supports the bureau's definition of the no-action alternative in this case," O'Neill wrote. (Parentheses in ruling.)

But that does not rule out the associations' other claims on the environmental assessment and FONSI, O'Neill said.

Though agencies do not need to issue an EIS for projects that preserve the status quo, an environmental assessment "followed by a FONSI must provide sufficient information and detail to demonstrate that the agency took the required 'hard look' at the environmental consequences of the project before concluding those impacts were insignificant," O'Neill wrote, citing the 9th Circuit ruling in Save the Yaak Coom. V. Block.

Since NEPA regulations and precedent are ambiguous as to an agency's requirements to include and evaluate project alternatives in environmental assessments, O'Neill declined to rule on whether the bureau's assessment included an adequate range of alternatives.

He rejected the Bureau's claim that the environmental assessment did not need to analyze impacts to water quality and wildlife in compliance with NEPA because other "environmental documents" fulfilled this requirement.

"According to the allegations in the FAC, the Bureau believed additional site-specific NEPA review was necessary when it proposed to renew long-term contracts for the West San Joaquin Division and San Luis Contractors. Why, then, would interim contract renewal not require such site-specific review? Perhaps there is a basis for such a distinction, but no such explanation is offered in the current record," O'Neill wrote, denying without prejudice the Bureau's motion to dismiss.

O'Neill also denied the Bureau's motion to dismiss claims that the environmental assessment relied on outdated evaluations of water needs, failed to analyze water diversion in light of "other environmental laws," and did not discuss the cumulative impacts of contract renewal.

The enormous, and enormously complicated, legal history of California water law has spawned hundreds of lawsuits, dozens of books, fiction and nonfiction, and underlay the Jack Nicholson-Roman Polanski movie, "Chinatown."

California's people and industries live and die by water, though few of them, particularly in the south, know where it comes from. The situation inspired Mark Twain's comment, "In California, whiskey is for drinking and water is for fighting," and his observation that he fell into a river in California once "and came up all dusty."

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