Mountain Counties keeps tabs on key water issues

At the joint meeting of Mountain Counties Water Resources Association (MCWRA) and the Association of California Water Agencies (ACWA) Region 3 this fall in Auburn, approximately 85 people heard from state, legislative and water agency leaders about statewide efforts to reconcile competing water interests. Mountain Counties has been an active participant in these efforts.

The call to integrate water management
California Department of Water Resources Deputy Director Gary Bardini described the department’s efforts to promote integrated water management. He started with today’s challenges. “Forecasting the amount and timing of rain and snowfall to expect in future years is a major challenge. In the immediate future, what we do know is that California has a history of periodic multi-year droughts. As California goes into its third dry year, the reservoirs are not holding much carryover, and groundwater is being used as agricultural backup. The state and federal projects will have the lowest deliveries ever because of the lack of rain this year,” he said.

Given all the circumstances, one of the questions is what water facilities and programs to invest in, both local and statewide. Bardini said, “We need everything to provide reliability. We need multi-benefit solutions.”

View from the California Legislative Rural Caucus

Assemblyman Frank Bigelow is chairman of the California Legislative Rural Caucus, which is bipartisan and has members from the Assembly and Senate.

He agrees that the state’s economy revolves around water. He suggested bringing legislators who are not familiar with the range of water issues by to the places where the problems are. “Expose them to what we have lived with all our lives,” he said.

The question of water rights

Craig Wilson is California’s first Delta Watermaster. The position was created by the 2009 Delta Reform Act. Wilson worked for the State Water Resources Control Board for many years, and served as chief counsel from 2000 to 2005. Most recently, he was with the Sacramento law firm of Stoel Rives. Wilson was appointed to a four-year term starting July 7, 2010.

The Delta Watermaster has authority to monitor water rights activities and take enforcement actions within the Delta. His main responsibility is to provide more certainty for water use and prevent unlawful diversions.

Members of Mountain Counties and ACWA became concerned when Wilson made a report to the State Water Resources Control Board and Delta Stewardship Counsel in March on Term 91: Stored Water Bypass Requirements. The report seemed to indicate that area-of-origin water rights would be made secondary to downstream flow requirements such as reducing salinity levels in the Delta, conveyance losses due to unavoidable natural requirements, or maintaining flows for water quality, fish and wildlife.

Wilson discussed the case of Tehama-Colusa Canal Authority (TCCA) v. U.S. Department of the Interior, decided by the Ninth Circuit Court of Appeals on July 1. The appeals court upheld the 2011 decision by the U.S. District Court for the Eastern District of California.

TCCA held area-of-origin rights, but also had a contract with the Bureau of Reclamation for deliveries of water from the Central Valley Project (CVP). TCCA claimed that California’s area-of-origin law entitled its members to priority deliveries, and that Reclamation violated the law by delivering less than 100 percent of contract amounts during contractual Conditions of Shortage.

Ninth Circuit Judge Johnnie B. Rawlinson ruled that California area-of-origin laws do not require Reclamation to prioritize the allocation of federally-appropriated CVP water to Sacramento Valley CVP contractors. Judge Rawlinson further concluded that the TCCA members’ water service contracts provide that TCCA members are not entitled to the full amount of water contracted for during times of shortage. In other words, the language of the contract trumps area-of-origin rights.

El Dorado Irrigation District Assistant General Counsel Brian Poulsen questioned Wilson about whether the court’s opinion created a risk for entities such as EID that hold area-of-origin rights.

Poulsen stated his concern was that when seeking water storage contracts from Reclamation,
Reclamation “would unjustifiably seek to include the same shortage provisions into those contracts.” He asked, what would be the remedies if there were such a risk.

Wilson suggested the appropriate remedy would be to sue Reclamation seeking declaratory judgment honoring the area-of-origin priority. He commented that he thought TCCA may have made a tactical error when negotiating its contract by agreeing to the shortage provisions and then seeking to enforce area-of-origin status, rather than halting negotiations to seek such a judgment prior to finalizing its contract.

ACWA Statewide Water Action Plan for California

Tim Quinn, executive director of the Association of California Water Agencies (ACWA), introduced the association’s “Statewide Water Action Plan for California.” ACWA estimates that its 440 public water agency members are responsible for 90 percent of the water delivered to cities, farms and businesses In California.

At the same time, California was entering a three-year drought. Water deliveries from the Delta were reduced drastically as a greater percentage of the reduced flows had to be directed to benefit the Delta smelt.

California was approaching civil war as a result, said Quinn. ACWA responded with a public education program, “California’s Water: A Crisis We Can’t Ignore.”

ACWA leaders decided not to file or join any lawsuits to remedy the situation. Operating the state water systems by court decrees seemed a lengthy, uncertain and costly alternative to working to resolve the issues.

Development of the Statewide Water Action Plan for California began with a member convention in spring of 2013. It is intended to serve as the water community’s recommendations for developing the administration’s water plan for the state.

ACWA’s plan was completed in September and approved unanimously by the board of directors on Sept. 27. It was submitted to Gov. Edmund G. Brown on Oct. 2.

The plan is a brief, 10-page document. It contains six guiding principles and 15 recommended statewide actions. Quinn said with so many diverse interests among the members throughout the state, it was important to create a plan that could be broadly supported.

The plan advocates a public benefits approach over picking specific projects. It recommends: “A wide range of options should be on the table, including new surface water projects; re-operation and expansion of existing storage projects, groundwater and conjunctive use, and development of other local and regional storage facilities.”

It addresses the issue of existing water rights:  “The administration should continue to affirm through its policies and actions that the implementation of a BDCP will not adversely affect existing water rights of those in the watershed of the Delta, nor will it impose any obligations on area-of-origin water users, including in the Delta, to supplement flows in and through the Delta.”

It calls for management strategies to avoid “dead pool” elevations in major reservoirs during prolonged dry periods. Dead pool is defined in the plan as “the condition in which water levels fall below a dam’s lowest outlets and no operable storage exists to deliver water for supply, environmental, and power generation purposes.”

On Oct. 14, MCWRA sent a letter to Gov. Brown in support of ACWA’s recommended Statewide Water Action Plan (SWAP). Kingsbury said, “We provide this support for ACWA’s plan and commend ACWA’s Executive Director Tim Quinn for his facilitation in this process because it is a good start to identifying a wide-ranging list of critical issues that the administration must address if we are to succeed.”

Mountain Counties Water Resources Association

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