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Paeter Garcia - Best Best Kreiger C A  Contract  Cities  Association    Presentation, Delta  Litigation Presentation
Paeter Garcia - Best Best Kreiger C A  Contract  Cities  Association    Presentation, Delta  Litigation Presentation
Paeter Garcia - Best Best Kreiger C A  Contract  Cities  Association    Presentation, Delta  Litigation Presentation
Paeter Garcia - Best Best Kreiger C A  Contract  Cities  Association    Presentation, Delta  Litigation Presentation
Paeter Garcia - Best Best Kreiger C A  Contract  Cities  Association    Presentation, Delta  Litigation Presentation
Paeter Garcia - Best Best Kreiger C A  Contract  Cities  Association    Presentation, Delta  Litigation Presentation
Paeter Garcia - Best Best Kreiger C A  Contract  Cities  Association    Presentation, Delta  Litigation Presentation
Paeter Garcia - Best Best Kreiger C A  Contract  Cities  Association    Presentation, Delta  Litigation Presentation
Paeter Garcia - Best Best Kreiger C A  Contract  Cities  Association    Presentation, Delta  Litigation Presentation
Paeter Garcia - Best Best Kreiger C A  Contract  Cities  Association    Presentation, Delta  Litigation Presentation
Paeter Garcia - Best Best Kreiger C A  Contract  Cities  Association    Presentation, Delta  Litigation Presentation
Paeter Garcia - Best Best Kreiger C A  Contract  Cities  Association    Presentation, Delta  Litigation Presentation
Paeter Garcia - Best Best Kreiger C A  Contract  Cities  Association    Presentation, Delta  Litigation Presentation
Paeter Garcia - Best Best Kreiger C A  Contract  Cities  Association    Presentation, Delta  Litigation Presentation
Paeter Garcia - Best Best Kreiger C A  Contract  Cities  Association    Presentation, Delta  Litigation Presentation
Paeter Garcia - Best Best Kreiger C A  Contract  Cities  Association    Presentation, Delta  Litigation Presentation
Paeter Garcia - Best Best Kreiger C A  Contract  Cities  Association    Presentation, Delta  Litigation Presentation
Paeter Garcia - Best Best Kreiger C A  Contract  Cities  Association    Presentation, Delta  Litigation Presentation
Paeter Garcia - Best Best Kreiger C A  Contract  Cities  Association    Presentation, Delta  Litigation Presentation
Paeter Garcia - Best Best Kreiger C A  Contract  Cities  Association    Presentation, Delta  Litigation Presentation
Paeter Garcia - Best Best Kreiger C A  Contract  Cities  Association    Presentation, Delta  Litigation Presentation
Paeter Garcia - Best Best Kreiger C A  Contract  Cities  Association    Presentation, Delta  Litigation Presentation
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Paeter Garcia - Best Best Kreiger C A Contract Cities Association Presentation, Delta Litigation Presentation

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  • 1. DELTA LITIGATION UPDATE California Contract Cities Association 29 th Annual Fall Seminar Carlsbad, California September 26, 2009 Paeter E. Garcia Best Best & Krieger LLP
  • 2. and species
  • 3. How Water Moves Through the Delta
  • 4. The State Water Project
    • The SWP serves all or a portion of the water consumed by 25 million Californians – about 2/3 of the State’s population, including hundreds of thousands of acres of prime farmland.
    • The SWP’s service area runs from Butte and Plumas counties in the North, through Napa and Solano counties in the North Bay, Alameda and Santa Clara counties in the South Bay down through the San Joaquin Valley and San Luis Obispo and Santa Barbara counties on the Central Coast, then over the Tehachapis to Southern California.
  • 5. Other Water Resources Utilized in Southern California
    • Fortunately, Southern California utilizes a diverse portfolio of water resources to serve existing and forecasted demands, such as:
      • SWP
      • Colorado River
      • Groundwater
      • Recycled Water
      • Desalination & Other Remediated Supplies
      • Stormwater
      • Others
  • 6. Delta Fisheries Decline
    • Delta smelt (federal and state threatened)
    • Winter-run salmon (federal and state endangered)
    • Spring-run salmon (federal and state threatened)
    • Central Valley steelhead (federal threatened)
    • Green sturgeon (federal threatened)
    • Longfin smelt (state threatened)
  • 7. Delta Fisheries Decline (continued)
    • There appear to be a variety of causes for the relatively recent decline in species abundance:
      • Poor habitat and reductions in food supplies
      • State and federal water pumping-changes delta hydrology
      • Toxic run-off from Delta agriculture
      • Ammonia discharges from Delta POTWs
      • Predatory and invasive non-native species
      • 2,200+ unscreened in-Delta agricultural diversions
      • Reductions in Delta in-flow from a variety of consumptive uses including the City and County of San Francisco’s Hetch-Hetchy Project, EBMUD, Modesto I.D., Turlock I.D. and many others
      • Ocean conditions / food supply issues (anadromous species)
  • 8. Regulation of the SWP / CVP
      • Despite the many recognized “stressors” and causes of the recent Delta fisheries decline, the SWP (and CVP) have proven to be relatively easy to regulate, and the regulators – state and federal – have a lengthy history of doing so.
  • 9. Regulation of the SWP / CVP (continued)
    • In 1978, the SWRCB issued D-1485 – the first WRD to impose conditions on the operation of the SWP and CVP for the protection of Delta fisheries.
    • In 2000, the SWRCB issued D-1641.
      • Added significant new protections for Delta fisheries (E / I ratio limits, Spring X-2 requirements and DCC closures.
      • But in terms of the water rights aspects of the SWP and CVP, D-1641 forms a type of “baseline” against which subsequent regulatory and judicial actions can be measured.
  • 10. Post-2006 Regulatory/Judicial Actions Affecting the SWP / CVP
    • After 2006, the first wave of actions consisted of cases brought by environmental and commercial fishing groups challenging biological opinions issued by FWS & NMFS regarding long-term coordinated operations of the SWP / CVP:
      • Natural Resources Defense Council, et al. v. Kempthorne , Case No. 1:05-CV-01207 OWW (E.D. Cal) (Delta smelt)
      • Pacific Coast Federation of Fisherman’s Associations, et al. v. Gutierrez , Case No. 1:06-CV-00245 OWW (E.D. Cal) (salmon and steelhead)
  • 11. Post-2006 Regulatory/Judicial Actions Affecting the SWP / CVP
    • These cases resulted in an overturning of biological opinions issued by FWS for the Delta smelt (May 2007) and by NMFS for the salmon and steelhead (April 2008).
      • T wo trials on “Interim Remedies” (operational limitations while new biological opinions were developed) were subsequently conducted by Judge Oliver Wanger.
      • The smelt interim remedy trial resulted in substantial additional limitations being imposed on the SWP and CVP (“Wanger Interim Remedies”) – beyond D-1641 .
      • The salmon interim remedy trial resulted in no additional limitations being imposed on the SWP or CVP.
  • 12. Post-2006 Regulatory/Judicial Actions Affecting the SWP / CVP
    • The Wanger Interim Remedies were in effect for about one year and had the effect of reducing SWP deliveries by about 500,000 acre feet (i.e., over and above the D-1641 “baseline”).
  • 13. Post-2006 Regulatory/Judicial Actions Affecting the SWP / CVP
    • The second wave has come in the form of new biological opinions issued by FWS regarding Delta smelt (December 15, 2008) and NMFS regarding salmon, steelhead, green sturgeon and killer whales (June 4, 2009).
      • Unlike the prior opinions, both of these opinions are “jeopardy” opinions and therefore include so-called “reasonable and prudent alternatives” (RPAs).
      • The RPAs add to the Wanger Interim Remedies and include measures never seen before (Fall X-2; extended DCC closures; SJR inflow/project export ratios).
  • 14. Post-2006 Regulatory/Judicial Actions Affecting the SWP / CVP
    • DWR analyses indicate that water supply losses to the SWP resulting from both biological opinions could be about 1 million acre-feet per year (about 30% average losses to the SWP).
    • To put this number in perspective, 1 acre foot is enough to serve 5 to 7 persons for one year.
  • 15. Post-2006 Regulatory/Judicial Actions Affecting the SWP / CVP
      • These new FWS and NMFS biological opinions have led to the third wave of actions . . .
      • “ Discourage litigation. Persuade your neighbors to compromise whenever you can.” (Abraham Lincoln)
  • 16. Post-2006 Regulatory/Judicial Actions Affecting the SWP / CVP
    • Six federal court actions have been filed against the Delta smelt biological opinion:
      • State Water Contractors v. Salazar, et al. , Case No. 1:09-CV-0422 OWW (E.D. Cal)
      • San Luis & Delta-Mendota Water Authority, et al. v. Salazar , Case No. 1:09-CV-0407 OWW (E.D. Cal)
      • Metropolitan Water District v. United States Fish and Wildlife Service, et al. , Case No. 1:09-CV-0631 OWW (E.D. Cal)
      • Family Farm Alliance, et al. v. Salazar , Case No. 1:09-CV-1201 OWW (E.D. Cal)
      • Coalition for a Sustainable Delta, et al. v. United States Fish and Wildlife Service, et al. , Case No. 1:09-CV-0480 OWW (E.D. Cal)
      • Stewart & Jasper Orchards, et al v. United States Fish and Wildlife Service, et al. , Case No. 1:09-CV-0892 OWW (E.D. Cal)
  • 17. Post-2006 Regulatory/Judicial Actions Affecting the SWP / CVP
    • Six federal court actions have also been filed against the NMFS biological opinion:
      • State Water Contractors v. Locke, Case No. 1:09-CV-1378 OWW (E.D. Cal)
      • Stockton East Water District v. NOAA et al. , Case No. 1:09-CV-1090 OWW (E.D. Cal)
      • Kern County Water Agency v. Locke , Case No. 1:09-CV-01520-OWW (E.D. Cal)
      • San Luis & Delta-Mendota Water Authority, et al. v. Locke, et al. , Case No. 1:09-CV-1053 OWW (E.D. Cal)
      • Oakdale Irrigation District v. U. S. Dept. of Commerce , Case No. 2:09-CV-02452 JAM (E.D. Cal)
      • The Metropolitan Water District of Southern California v. NMFS, et al. , Case No. 1:09-CV-01625 SMS (E.D. Cal)
  • 18. Post-2006 Regulatory/Judicial Actions Affecting the SWP / CVP
    • Various causes of action are alleged in the different complaints filed against the FWS and NMFS biological opinions. Below are a few primary examples:
      • Regulatory agencies failed to use “best scientific and commercial data available” in violation of the ESA
      • Adoption of the biological opinions were “major federal actions” that will affect the human environment and failures to prepare EIS violates the National Environmental Policy Act (NEPA)
      • Failure to comply with the “reasonable and prudent alternative” requirements of the ESA
      • Commerce Clause violations
      • Other
  • 19. Post-2006 Regulatory/Judicial Actions Affecting the SWP / CVP
    • In the Delta Smelt Cases:
      • Court has split-up the cross-motions for summary judgment.
        • NEPA, RPA & Commerce Clause claims to be determined in “early round” of dispositive motions
        • These and other issues set for hearing on October 2, 2009
        • Record-based claims (such as science-related) in later phase – Motions due December 21 st
      • Court recently indicated it is likely to appoint a”706” expert on the science issues.
  • 20. Post-2006 Regulatory/Judicial Actions Affecting the SWP / CVP
    • In the Salmon Cases:
      • Court held a scheduling conference on September 10, 2009 and set the following briefing schedule:
        • NEPA claims to be briefed in November and December 2009 with a hearing in January 2010
        • Other claims likely to be briefed in late spring 2010
  • 21. Post-2006 Regulatory/Judicial Actions Affecting the SWP / CVP
    • Other Cases (State Court):
      • Challenges against Delta smelt “Consistency Determination” under CESA.
        • State Water Contractors and SLDMWA v. California Dept. of Fish & Game (Kern County Superior Court Case Nos. S-1500-CV-268133 and S-1500-CV-268074, August 2009).
      • Challenge against salmon “Consistency Determination” under CESA being drafted now.
      • Longfin Smelt – State Water Contractors v. Dept. of Fish and Game (Sacramento County Superior Court Case No. 34-2009-80000203, December 2008).
  • 22. Implications (Examples):
    • After a full year of the Wanger Interim Remedies limitations on SWP / CVP operations, the Fall Midwater Trawl Index for Delta smelt in late 2008 was the lowest ever recorded.
    • Combined with prevailing dry conditions, reduced SWP/CVP deliveries have resulted in allocations, extraordinary conservation, increased groundwater production, fallowing, and other measures.
    • Water supply planning and analyses have become a much more challenging process.

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