United States Files Lawsuit Against California State Water Resources Control Board for Failure to Comply With California Environmental Quality Act

The Department of Justice and the U.S. Department of the Interior (DOI) filed civil actions, in both federal and state court, against the California State Water Resources Control Board for failing to comply with the California Environmental Quality Act (CEQA).

On Dec. 12, 2018, the California State Water Resources Control Board (the Water Board) approved and adopted amendments to the Water Quality Control Plan for the San Francisco Bay/Sacramento–San Joaquin Delta Estuary (amended plan) and the related Substitute Environmental Document (SED).  According to the complaint, the Amended Plan fails to comply with CEQA and, once implemented, will impair DOI’s ability to operate the New Melones Dam consistent with Congressional directives for the project.

“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.”

Tam M. Doduc and Felicia Marcus voting to approve the Bay-Delta Plan; which fails to comply with CEQA, according to the DOJ.

“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.

New Melones Resevoir

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.

Department of Justice, Washington DC

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.

Featured image by Bureau of Reclamation from New Melones Dam and Reservoir – New Melones Dam and Reservoir, CC BY 2.0, Link