Lawsuit demands Water Board action on outdated DWR water rights before Delta Tunnel approval
As salmon, steelhead and other fish species move closer to extinction and the Delta smelt is now functionally extinct in the wild, a coalition of environmental groups and the Central Delta Water Agency are demanding that the State Water Board take action on outdated DWR water rights before the approval of the Delta Tunnel is even considered.
After waiting 14 years, water rights protestants to a 2009 proceeding have filed a complaint against the State Water Resources Control Board alleging it has given preferential treatment to the Department of Water Resources (DWR) regarding what they call “antiquated water rights claims.”
They also said the board “failed to implement state laws requiring the reasonable and equitable development of water diversions and the protection of water resources in the State.”
“DWR is still relying on water rights permits for the development of the controversial Delta Conveyance Project that were issued in 1955 and 1972, despite dramatic changes in the population size of California and in the hydrological cycle due to climate change,” according to a press release from Central Delta Water Agency, California Water Impact Network (C-WIN), California Sportfishing Protection Alliance, and AquAlliance.
The complaint alleges that DWR has “failed to comply with state water rights law requiring water rights be timely put to full beneficial use; the purpose of this requirement is to safeguard the public interest.”
Key issues included in the Complaint are:
- “DWR’s Petition for Extension of Time has unreasonably delayed following development timelines dating back to 1955 and 1972 that required construction by 1980 and use by 1990; then construction by 2000, and use by 2009.
- DWR is trying to resurrect these “expired” rights to serve the Delta Tunnel without having perfected them according to the State Water Board’s ordered development schedule.
- The Water Board is giving preferential treatment to another State agency by ignoring these protests and allowing DWR to flout its permit requirements while holding other applicants responsible for meeting the water development timelines in their permits.
- Since the millions of acre-feet of water DWR claims it has rights to divert into the Delta Tunnel have never been applied to full beneficial use and cannot be reliably delivered, it is courts have sometimes termed ‘paper water’ which exists as an accounting tool but is ‘worth little more than a wish and a prayer.’”
Four environmental groups and a Delta water agency are asking the court in Fresno County Superior Court to compel the State Board to address these claims. The complaint alleges that the Water Board normally cancels the rights of other water rights applicants that don’t use water or “put water to beneficial use” within the development period in their permit.
Failure to follow this ‘diligence’ requirement would result in massive social and environmental impacts on the Sacramento River and the Delta, and existing legal uses and users of water, according to the coalition.
The lawsuit explains that the State Water Board is charged with the orderly development of water supplies in the state, which are increasingly scarce with the demands from 39 million people. Notably, when DWR’s water rights were filed in 1955 and 1972, the state’s population was 13 million and 20.5 million, respectively. In the decades since, the coalition noted.
“DWR has made no progress towards completing the application of water to beneficial use. The State has changed dramatically in that period, requiring a fresh look at the availability of water for projects like the Delta Tunnel that would remove significant amounts of water from the Sacramento River and Delta. Alarmingly, the water DWR proposes to divert water from the Sacramento River into the Tunnel under its antiquated permits that may no longer be available due to climate change and other events over the last 50 plus years,” the groups stated.
The complaint alleges that “instead of returning DWR’s petitions for lack of diligence and referring the permits to the licensing section to license amounts actually put to beneficial use during the permits’ valid development period, the SWRCB continues to issue notices of changes to DWR’s expired permits, most recently on February 29, 2024 when it commenced the Delta Conveyance proceedings.”
“With the recreational and commercial salmon season canceled for the second year in a row, the State Board needs to implement due diligence requirements evenhandedly,” explained Attorney Osha Meserve, representing the Central Delta Water Agency. “Here, the State Board has given DWR preferential treatment and is letting DWR cut in line ahead of thousands of other water rights holders as well as water uses necessary to keep the California Delta, its communities and its fisheries healthy.”
Roger Moore, attorney for the California Water Impact Network, noted that “during the 14 years these protests have been unlawfully allowed to languish, authoritative reports, including the State Water Board’s own, have confirmed the Delta watershed is heavily oversubscribed. Enabling DWR’s addiction to ‘paper water’ is a bet against our future that will shortchange California’s fisheries, economy, and environment.”
Barbara Vlamis, Executive Director of AquAlliance, said she was “proud to be part of a strong coalition that is determined to protect the source waters in the Sacramento River watershed by enforcing bedrock water rights principles.”
Chris Shutes, the Executive Director of the California Sportfishing Protection Alliance, concluded: “The State Water Board has let DWR slide for over a decade. We hope the court will agree that it is past time for the State Water Board to make DWR play by the same rules as everyone else.”
Salmon, steelhead and Delta Smelt continue on path to extinction
California salmon, steelhead and other fisheries are in their worst crisis ever as Governor Newsom forges ahead with the Delta Tunnel and Sites Reservoir projects and the voluntary agreements.
California salmon fishing was closed in 2023 and will be closed this year also. The 2024 stock abundance forecast for Sacramento River Fall Chinook, often the most abundant stock in the ocean fishery, is only 213,600 adults. Meanwhile, abundance of Klamath River Fall Chinook is forecast at 180,700 adults. “These abundance forecasts are well below average,” according to the CDFW.
Endangered Sacramento River spring and winter-run Chinook also continue their march towards extinction. The spawning escapement of Sacramento River Spring Chinooks (SRSC) in 2023 totaled 1,479 fish (jacks and adults), with an estimated return of 106 to upper Sacramento River tributaries and the remaining 1,391 fish returning to the Feather River Hatchery.
The return to Butte Creek of just 100 fish was the lowest ever. In 2021, an estimated 19,773 out of the more than 21,580 fish total that returned to spawn in the Butte County stream perished before spawning
Nor did the winter run, listed under the state and federal Endangered Species Act, do well. Spawner escapement of endangered Sacramento River Winter Chinook (SRWC) in 2023 was estimated to be 2,447 adults and 54 jacks, according to PFMC data.
A group of us, including the late conservationist and Fish Sniffer magazine publisher Hal Bonslett, successfully pushed the state and federal governments to list the winter run under the state and federal Endangered Species Acts starting in 1990-91 because we were so alarmed that the fish population had crashed to 2,000 fish.
Then in 1992 the run declined to less than 200 fish. Even after Shasta Dam was built, the winter run escapement to the Sacramento River was 117,000 in 1969!
Now we are back to approximately the same low number of winter-run Chinooks that spurred us to push for the listing of the fish as endangered under state and federal law over 30 years ago.
Even more chilling, for the sixth year in a row, zero Delta Smelt were collected in the California Department of Fish and Wildlife’s Fall Midwater Trawl (FMWT) Survey in the Sacramento-San Joaquin River Delta from September through December 2023.
Once the most abundant species in the entire estuary, the Delta Smelt has declined to the point that it has become functionally extinct in the wild. The 2 to 3 inch fish, found only in the Delta, is an “indicator species” that shows the relative health of the San Francisco Bay/Delta ecosystem.
Meanwhile, the other pelagic species collected in the survey — striped bass, Longfin Smelt, Sacramento Splittail and thread fin shad — continued their dramatic decline since 1967 when the State Water Project went into effect. Only the American shad shows a less precipitous decline.
The graphs in the CDFW memo graphically illustrate how dramatic the declines in fish populations have been over the years: nrm.dfg.ca.gov/…
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