June 2003
The San Francisco Federal Appeals Court has rendered a decision in the "b2" Litigation overturning - for the most part - Judge Wanger's lower court ruling. This is the long standing case wherein Central Valley ag interests (spearheaded by Westlands Water District) filed suit opposing a Department of Interior's administrative policy decision specifying how the Bureau of Reclamation would define and account for the 800,000 acre feet of CVP water dedicated to the fish doubling goals (established under Section b2) of the Central Valley Project Improvement Act. You might recall that much of this water was directed to other purposes of the project. When Interior refused to appeal the lower court decision, the fishery and environmental community filed an appeal under the direction of Attorney Cynthia Koehler.
Wanger's ruling was a boon to Westlands, et. al., as it allowed nearly half of the b2 water to be used to meet water quality standards and the needs of endangered salmon and Delta smelt. The obligations were established prior to the passage of the CVPIA. Hence, some 400,000 AF of BOR water was freed up for agricultural use since the BOR no longer needed to use water to meet these needs out of the water ag contractors would get. This also meant the US Fish & Wildlife Service could not direct how this water would be used to achieve the Congressional mandate of doubling Central Valley salmon, steelhead, striped bass, sturgeon and American shad.
The following report is a summary of the decision by Cynthia. Material in brackets [ ] are my attempts to explain what she has highly summarized.
The 9th Circuit issued its decision in the CVPIA 800,000 AF feet ("b2") case June 4. While results are mixed, it's good news for CA salmon [all anadromous fish of the Bay-Delta estuary and its Central Valley tributaries] overall:
- The Government and water users' main argument was that the 9th Circuit should not hear the [our] appeal for various procedural reasons. The Court rejected all of these arguments and held for us on all jurisdictional issues.
- The Court rejected Westlands' appeal in its entirety. As some of you may recall, the entire case was brought initially around Westlands ' position that Interior must use the accounting method preferred by the water users, under which the environment would never get 800 TAF except in extreme drought years. This was also the basis of their appeal. It appears that this issue may finally be resolved in our favor.
- We appealed on four aspects of the Wanger rulings. Two were "money issues" in terms of the amount of water at issue. The Court reversed Judge Wanger on the most important of these—the "primary purpose" issue. Under the Wanger rulings, Interior would have no discretion about how to allocate the 800 TAF but would be required to, as a first priority, use as much of the 800 TAF as needed to meet the CVP 's water quality and endangered species obligations, even if that meant little or no water would be available for the "primary purpose" of the [b2 water] dedication—implementing the fish, wildlife and habitat restoration measures of the CVPIA including the salmon [and other fish] doubling plans.
The Court reversed Judge Wanger in this regard and held that Interior does have discretion but that it must "give effect to the hierarchy of purposes established in Section 3406(b)(2)." This means that the new policy—issued by DOI the day before [we made our appeal] argument—will have to be revised. Somewhere between 100-300 TAF is probably freed up for salmon [all fish] as a result. (I am sure the numbers experts will correct me if I am overstating this...)- The court did not go our way on the other 3 issues, most notably the "offset/reset" issue which we always knew was a long shot given the technical complexity. ["Offset/reset" deals with part of the accounting of how the b2 water is stored and desginated.] We did get a favorable dissent on this issue from Judge Canby. We also lost on 2 other legal issues that would have been better to have won but do not implicate that much additional water.
Final note—the decision was very short and contained limited analysis notwithstanding very lenghty and detailed opinions issued by the district court. Its also unpublished meaning that it cannot be cited as precedent.
As indicated above, the bottom line is that the new b2 policy issued by Interior will have to be revised to conform to the Court's decision. The fishing and environmental communities are now in a far better position to negotiate with Interior about some key details [including rededicating water toward the CVPIA goals of doubling the anadromous fisheries of the Central Valley. This also has serious implications for the "global settlement" Interior is considering entering into with Westlands [Interior has been working with Westlands to settle all of Westlands suits and a land settlement package is eminent. Among other things, Interior is poised to buy out some of the salinity and selenium tainted farm land with public tax dollars.
Not a bad day for the fish all in all.
Cynthia Koehler
[Cynthia did an excellent job on behalf of all of us who about the state's fishery resources. Far beyond the call of duty!]
Senator Pro Tempor of the State Legislature, John Burton (D. SF) has sent the Central Valley Regional Water Quality Control Board the letter below. You ought to recall that fishery and environmental groups have valently argued before this board that Agricultural pollution should be regulated, as is the case with nearly all other discharges to the public's waters; that it should be quantified, properly characterized, and a management plans developed to minimize the impact it has on the the public's waters, the Bay-Delta estuary and our fisheries. The regional board's ineptitude in dealing with this huge problem (many miles of the Delta and its tributaries are officially classified as "impaired water bodies" by the EPA due to toxicity that exceeds Clean Water Act standards), is the result of the majority of this board not wanting to rock the agricultural boat. The Clean Farms - Clean Water Coalition has appealed the Regional Board's decision not to require permits and permit fees to begin the regulation of ag discharges to the State Water Board and alleged conflict of interests and inappropriate dealings by some of the board members. The Attorney General's office has been called in and is reviewing the matter.
Burton's letter below speaks to this clearly.
May 6, 2003
Robert Schneider, Chair
Central Valley Regional Water Board
3443 Routier Road, Suite A
Sacramento, CA 95827-3003
Dear Chairman Schneider:
I 'm writing to express my outrage at the Board 's action at a Board meeting on April 24 concerning the regulation of agricultural discharge. It appears this action was engineered by agricultural lobbyists and specifically designed to undercut the public comment period which had been extended until May 23rd. It is my understanding that on a 4-3 vote the Board adopted a motion calling for "no action" on the agriculture waiver issue, and directing staff not to even explore a fee structure for agricultural waivers. The Board 's direction to staff sends the clear message that the Board already knows what the final program will be and is merely "running the clock" on public participation.
The public depends on the fundamental fairness of the proceedings of appointed bodies. When a meeting is called with the clear understanding that final action will not be taken until a subsequent meeting, it is nothing short of the betrayal of the public trust to acquiesce to special interest pressure to take a vote.
The issue of whether and to what extent agricultural discharges should be regulated is obviously a major and controversial issue in which the Legislature has a strong interest. As I 'm sure you appreciate, the long-term implementation of whatever the Board decides will depend on public respect for the decision-making process. Restoring the public 's faith in the Board will take some time, and I deeply regret that you and other Board members will have your attention directed to repairing a public trust that never should have been violated. The more controversial the issue, the more important it is that the public process be above reproach.
I recognize that aspects of this meeting are appropriately under legal investigation. I look forward to the results of the Attorney General 's investigation into this matter. I am pleased that the State Water Board has issued a memorandum explaining that the vote will not deprive the public of the right to comment on a variety of important issues. I urge you to use this memorandum to direct staff to pursue a draft fee structure for this program; thus enabling the Board to decide whether administrative fees should or should not be a part of the solution.
The Board has taken important votes that have contributed to overall water quality in your jurisdiction, and I appreciate your leadership in that regard. I 'm deeply distressed by the fact that favoritism on procedural grounds was shown at this last meeting, and I recognize that you share that concern.
Peace and friendship,
JOHN L. BURTON
JLB:nsek
You can support CSPA and our conservation efforts by becoming a member. Donations are tax-deductible, greatly needed and most appreciated. Send checks to CSPA, 1360 Neilson Street, Berkeley, CA 94702-1116. Membership starts a $25. If you are a member, you know of the good work we do, so sign up a friend and help us restore our fisheries! Questions? Call me at 510-526-4049.