Legal Alerts Jan 21, 2016

Shasta Lake Water Levels Subject of New Litigation

Water Contractors Challenge SWRCB Order Potentially Restricting Water

A State Water Resources Control Board order that could potentially restrict the amount of water available for export by both the Central Valley Project and the State Water Project is now the subject of litigation. In petitions filed last week in Sacramento County Superior Court, water contractors contend the Board and its executive director overstepped their authority in extending and modifying the order that may require holding more cold water in Shasta Lake to protect salmon downstream.

In January 2015, the Department of Water Resources and the Bureau of Reclamation filed a temporary urgency change petition with the Board to modify the water quality standards for their permits and licenses. Executive Director Tom Howard, acting on delegated authority, issued the order granting the TUCP Order. San Luis & Delta Mendota Water Authority and Westlands Water District, among others, filed a petition for reconsideration of the TUCP Order. 

The Board did not act on the petitions for reconsideration until Dec. 15. At that time, at a regular meeting of the State Water Board, the Board adopted an order granting in part and denying in part the Authority’s petition. At the same time, and in the same order, the Board purported to extend the TUCP Order, otherwise due to expire on Dec. 30, by an additional 180 days. The Board also added new conditions to Reclamation’s water rights license in the form of increased carryover storage requirements in Shasta Reservoir for temperature control. Holding more cold water in Shasta Reservoir effectively makes such water available to support salmon spawning in the upper Sacramento River.

Last week, the Authority and Westlands filed a petition for writ of mandate challenging the Board’s order on the petition for reconsideration. They contend that the Board exceeded its jurisdiction in extending and modifying the TUCP Order as part of the order on the petitions for reconsideration. They argue that neither DWR nor Reclamation petitioned for an extension of the TUCP Order or for a new TUCP order. Therefore, the Board had no jurisdiction to extend the TUCP Order past the Dec. 30 expiration date. Further, because the Board was acting on petitions for reconsideration, it violated due process requirements by failing to hold a hearing and take evidence. Specifically, the Authority and Westlands contend that the Board’s December order lacks evidentiary support for the condition requiring a minimum 1.6 million acre feet carryover storage in Shasta Reservoir in October 2016 for temperature control purposes, or other carryover level that “ensures” daily average water temperatures do not exceed 56 degrees at the designated compliance point at critical times for salmon.

In a separate petition for writ of mandate also filed last week, the San Joaquin River Exchange Contractors contend that the increased storage requirements will result in increased releases from Lake Oroville to offset the reduced Shasta Lake flows and maintain Sacramento-San Joaquin River Delta water quality. Increased storage in Shasta and increased releases from Oroville for water quality purposes could mean less water available for export to recipients of Central Valley Project and State Water Project water.

For more information on this matter, please contact the author of this Legal Alert listed at the right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.

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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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