State Water Contractors sue California over revised incidental take permit for endangered fish

The Banks Pumping Plant in the South Delta. Photo courtesy of Department of Water Resources. |  

By Dan Bacher | 

The California water wars amped up on April 29 when the State Water Contractors (SWC) filed a lawsuit against the California Department of Water Resources (DWR) and California Department of Fish and Wildlife (CDFW) over the March 31 Incidental Take Permit (ITP) for the long-term operation of the State Water Project (SWP).

The lawsuit filed by the State Water Water Contractors follows the lawsuit filed the day before by the Central Valley Project (federal) contractors over the permit: Central Valley Project contractors file lawsuit against the state – Maven’s 4/28/20 

The Incidental Take Permit allows the state to take endangered fish species, including Delta and long fin smelt, Central Valley steelhead, winter run Chinook salmon, spring run Chinook salmon and other species, under the California Endangered Species Act (CESA) during the long term operation of the State Water Project. The state and federal water contractors oppose the revised permit because they believe that it is too protective of fish species and limits water supplies.

Both the state and federal contractors proclaimed that the ITP ends the voluntary agreements being promoted as the “solution” by the Newsom Administration to resolving the goals of water supply and ecosystem protection in California.

SWC General Manager Jennifer Pierre issued the following statement regarding the lawsuit:

“In maintaining overly restrictive criteria specific to the SWP despite the best available science, and over the objections of the State Water Contractors and other public water agencies – increasing SWP costs by $22 million annually – the ITP’s approval has left us with no other choice than to file litigation that could and should have been avoided.”

“Even more disappointing, the ITP effectively ends the historic Voluntary Agreement process that brought together water agencies, regulators and conservation groups to tackle decades-old water resource problems. Despite this, the SWC remain committed to working with state and federal partners to resume the Voluntary Agreement process. We must gain alignment between the SWP and CVP operations and increase regulatory flexibility that meets the needs of California’s people and the environment.”

In a statement, the State Water Contractors also claimed they they object to the revised permit “because it imposes significant new conditions that far exceed CESA requirements and legal standards and is not based on the best available science. The ITP was approved without adequate consideration of the objections posed to the Department of Water Resources (DWR) throughout the consultation period as reflected in the SWC’s January 6 letter to DWR.”

The SWR claimed that the current ITP:
  • “Limits water supplies for 27 million Californians without adequate legal or scientific justification
  • Increases costs to California ratepayers
  • Fails to incorporate the latest and best available science
  • Implements overly burdensome and illegal actions for impacts unrelated to SWP operations and geographic range
  • Will make climate change adaption and Sustainable Groundwater Management Act (SGMA) implementation substantially more difficult
  • Creates operational conflicts between the Central Valley Project (CVP) and the SWP
  • Allows CDFW – rather than DWR – to make wholesale flow decisions over and above the prescriptive criteria included in the permit.” 
Metropolitan Water District General Manager Jeff Kightlinger also commented on the lawsuit: 

“In filing litigation, Metropolitan acted to protect Southern California’s ratepayers from cost shifts and water supply reductions inappropriately assigned to the State Water Project. While Metropolitan remains committed to working with the state and Governor Newsom to find a comprehensive solution to improve the ecological health of the Sacramento-San Joaquin Delta, that solution must be based on the best available science and not overly burden Southern California. We have made extraordinary progress in the historic voluntary agreement process, including commitments from water users across the state for enhanced flows, which would produce more water for the environment than this state permit, as well as for habitat restoration and funding. The voluntary agreement process continues to be the only productive path for a solution that balances the water supply needs of the environment, our communities and our farms. 

On April 28, a coalition of federal water contractors — the San Luis & Delta Mendota Water Authority, the Friant Water Authority, and the Tehama Colusa Canal Authority — filed suit to “protect the Central Valley Project (CVP) and the farms, businesses, residents and wildlife refuges it serves in 17 California counties.”

“As California embarks on an unprecedented effort to rebuild our economy, we strongly encourage the State of California to recognize the importance of CVP water deliveries to every facet of our economy and social fabric in California’s Central Valley, the Bay Area and the Central Coast,” the Central Valley Project contractors said in a statement. “Rather than efforts that will limit our economic recovery, we urge the State of California to sit down with the operators of the CVP and State Water Project (SWP) and develop a joint operations plan that is not in conflict with the federal Biological Opinions (BiOps) and can advance voluntary agreements as a long-term solution to meet multiple objectives in the Bay-Delta. It is disappointing that State officials have not, to date, engaged with their federal counterparts to resolve these issues.”

Tim Stroshane, policy analyst for Restore the Delta, had a much different take on the lawsuits by the state and federal water contractors.

“Desperate times are leading to desperate measures from state and federal water contractors,” said Stroshane. “They want as few rules as possible over their dream of a water transfer market sluiced by the proposed Delta tunnel project.”

“Fortunately, the state’s incidental take permit commendably took the path protecting Delta fish and water quality. Federal scientists last year almost took that path but were overruled by the Trump Administration, undoing federal rules that would protect Delta fish and water quality. A resumption of drought looms, and the contractors are scared. It’s ironic that the contractors are suing the state claiming that they want to ‘save’ the voluntary agreements,” said Stroshane.

"We note that with the filing of this latest lawsuit, the State Water Contractors have joined Westlands Water district and the Metropolitan Water District in pronouncing the voluntary agreement process dead,” added John McManus, President of the Golden State Salmon Association. “How long will the State Water Resources Control Board wait for this apparently dead process to produce results before taking action to protect the state's natural resources, including our salmon runs, as required by law?"    
Also on Wednesday, two separate coalitions of national conservation organizations sued the Trump administration over a rollback of protections for the country’s waterways. “The Navigable Waters Protection Rule finalized by the Environmental Protection Agency (EPA) in January limits federal protections for smaller bodies of water, a move critics say risks contamination of larger ones used for drinking water,” according to the article. For more information, go to: Green groups sue over Trump rollback of Obama-era waterway protections – The Hill 4/29/20


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