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Feds Sue Water Board Over ‘Water Grab’ Citing CEQA, New Melones

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Sonora, CA — The Department of Justice and the U.S. Department of the Interior have filed civil actions, in both federal and state court, against the California State Water Resources Control Board over its plan to seek increased unimpaired flows for the benefit of fish species.

The Feds announced the move Thursday. As reported here, it was back in December when the Water Board approved and adopted amendments to its Water Quality Control Plan for the San Francisco Bay/Sacramento–San Joaquin Delta Estuary and Substitute Environmental Document. The move was criticized by water suppliers and others as a massive water grab.

According to the complaint, the Amended Plan fails to comply with the California Environmental Quality Act (CEQA) and, once implemented, will impair the Department of the Interior’s ability to operate New Melones Dam consistent with Congressional directives.

As reported here, the Water Board is already facing multiple lawsuits over its action, including one filed in Tuolumne County Superior Court by multiple entities that include Tri-Dam Project Partners the Oakdale (OID) and South Jan Joaquin (SSJIR) water districts that developed and maintain senior water rights at New Melones.

Commenting on the latest suit, voluntary settlement agreements in progress among water suppliers and his district’s own filing against the Water Board, OID General Manager Steve Knell shares, “With the Federal suit filed we anticipate all State actions for the implementation of the WQCP to likely come to a halt. VSA negotiations will also likely be sidelined. The Federal suit against the State puts into question the validity of the findings contained in the WQCP, hence the outcome of the suit could result in significant changes to the document. Because of that probability, there is no sense in continuing to negotiate if you don’t know how the endpoints might be changed.”

The Feds further explain their position in the below excerpt from their announcement about the filing:

“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 Department of Justice’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 stated in our letter to the Board on July 27, 2018, today’s lawsuit affirms the Bureau of Reclamation’s continued opposition to the State Water Board plan. 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,” said Bureau of Reclamation Commissioner Brenda Burman. “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.”

CEQA is a California statute which requires state and local agencies to identify the significant environmental impacts of their actions and to avoid or mitigate those impacts, if feasible. The lawsuits filed today allege that in approving the amended plan and final SED, the Board failed to comply with the requirements of CEQA in a number of ways:

•The Board failed 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;

•The Board improperly masked 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

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

As alleged in the lawsuits, the United States will be directly and substantially impacted by the Board’s actions, which impacts include, but are not limited to, 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 stores water under permits issued by the State of California, and delivers water from storage to irrigation and water districts under contracts entered into under federal reclamation law. The lawsuits further allege 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 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.

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