Landmark Lawsuit Settlement Between Environmentalists and State Water Boards Strengthens Delta Protections
Enforceable transparency and analysis to replace years of failure to comply with existing water quality and flow standards.
SACRAMENTO, California — Three California environmental nonprofits secured a landmark settlement agreement with the California State Water Resources Control Board to uphold the common law Public Trust Doctrine and other legal protections for imperiled fish species in the Sacramento River and San Francisco Bay/Sacramento – San Joaquin Delta Estuary.
The lawsuit, filed in 2015 by the California Sportfishing Protection Alliance (“CSPA”), the California Water Impact Network (“CWIN”), and AquAlliance, brought sweeping claims against the State Water Board. It alleged that the agency’s management of the Sacramento River and San Francisco Bay-Delta displayed an overarching pattern and practice of:
- failure to comply with the Public Trust Doctrine;
- failure to implement Sacramento River temperature management requirements;
- failure to ensure that fish below dams be maintained in “good condition”; and
- acceptance of water quality below minimum Clean Water Act standards.
Among other things, the settlement terms protecting the Sacramento and Bay-Delta include:
- transparent evaluation of the specific Public Trust Doctrine factors the Water Board will consider in determining if new Bay-Delta Plan requirements will protect fish and wildlife;
- a Sacramento River Temperature Management process that addresses controllable factors, including deliveries, and ensures adequate staffing, modeling and public review;
- consideration of California Fish and Game Code section 5937, protecting fish below dams, in Bay-Delta Plan updates; and
- transparent Public Trust analysis for Temporary Urgency Change Petitions.
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Original 2015 Notice of Lawsuit Filing:
On August 4, 2015, AquAlliance joined a lawsuit that could alter the water transfers that are planned from the Sacramento Valley to desert agriculture this year and into the future. For almost a year and a half, we and our colleagues tried to sway the State Water Resources Control Board to adhere to the laws that slow water exports, to no avail. They have bent over backwards to allow the Bureau of Reclamation and the California Department of Water Resources to export more water from the Sacramento Valley to south of the Delta during these drought years using Temporary Urgency Change Petitions. To do so in 2014, the SWRCB allowed violations of laws governing water quality in the Delta and water held in Shasta and Oroville that hammered salmon from the Sacramento River. So far they are doing the same thing in 2015.
As many NorthState residents know, this valley’s present and future are tied to the laws that protect the environment. Without those laws, we have no mechanism to fight the hydrologic evacuation of this region, since we don’t have the political or economic clout to sway decision makers. The Owens Valley had its river diverted and groundwater evacuated before there were such laws. The valiant efforts of the Owens Valley Committee in 30+ years of litigation succeeded in only minimal restoration after using environmental laws enacted in the 1970s. And they still are suffering from the depletion of the surface and ground water in the Owens Valley. AquAlliance is trying to prevent damage in the Sacramento Valley from external forces before major damage is done.
AquAlliance now has two lawsuits going in 2015 to try to stop the repetition of the Owens and San Joaquin Valleys’ nightmares. The federal lawsuit over the 10-Year Water Transfer Program should alter transfers in future years and it is our belief that the new water quality lawsuit will slow or stop the water transfers this year.
Thank you for supporting our work on behalf of the communities, farms, and environment in the Sacramento Valley!
Background Material
1) The State Water Resources Control Board hasn’t always approved Temporary Urgency Change Petitions from the Bureau of Reclamation and the Department of Water Resources. In a 2005 denial of a TUCP, the SWRCB also made it clear that water quality standards in the Delta were started to protect agriculture. “The objective for salinity at the three stations in the interior southern Delta was first established in the 1978 Delta Plan for the protection of agricultural beneficial uses in the southern Delta.” [emphasis added] As it has turned out, helping agriculture in the Delta also helps fish and the reverse is equally true.
2) Plaintiff’s lawsuit alleges violations of:
- The Bay-Delta Plan
- The Clean Water Act
- Central Valley Project Improvement Act
- Delta Protection Act of 1959
- Federally promulgated Estuarine Habitat Criteria for the Bay/Delta estuary at 40 CFR 131.37
- Striped Bass spawning criteria between 1 April and 31 May
- Suisun Marsh criteria
- The Public Trust Doctrine and California case law
- Article 10, Section 2 of the California Constitution
- California Water Code, Code § 1435
- SWRCB Decision -1641
- SWRCB Decision -990
- California Endangered Species Act
- Section 5937 of the California Fish & Game Code
- Section 7 of the Federal Endangered Species Act
- Federal CVPIA doubling standard for salmon and steelhead;
- The Governor’s 2014 Declaration of Drought Emergency
- Plaintiffs’/Petitioners’ due process rights under both the state and federal constitution;
- State Water Resources Control Board Resolution 68-16 (Oct. 24, 1968) (“State Antidegradation Policy”)
- The Porter-Cologne Water Quality Control Act (“Porter-Cologne”)
- California Water Code § 13000, et seq. (“Water Code”)
- Title 27 of the California Code of Regulations (“CCR”) § 20090
Click link to view:
- Press Release August 4, 2015
- Petition and Complaint August 3, 2015
- First Amended Complaint September 18, 2015