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State Drought Decisions Cut Water Supply Illegally Says Friant

October 29,2014

Screen Shot 2014-10-29 at 7.06.54 AMWith Friant water contractors getting a zero supply of CVP water this summer,contractors are now blaming a flawed state board process for the cuts that have helped dry up the orchards on the east side of the Valley.

How the State Water Resources Board and its executive officer, Thomas Howard, have made far-reaching drought emergency decisions have been legally challenged by the Friant Water Authority and most of its member agencies, all of which were denied deliveries of any Central Valley Project water this year.

A petition for writ of mandate was filed October 24 in Fresno County Superior Court contesting the State Board’s actions and also naming several state and federal agencies for their roles. They include the California Department of Water Resources, the California Department of Fish and Wildlife, the federal Interior and Commerce departments, U.S. Bureau of Reclamation, Fish and Wildlife Service, and National Marine Fisheries Service.

The Friant plaintiffs’ suit seeks “judicial review of a nine-month series of unilateral and unlawful decisions by the executive director of the California State Water Resources Control Board and then a fatally flawed decision by the State Board itself.”
Friant contends the State Board repeatedly failed to follow state law and its process failed to provide a hearing before depriving them of their water supplies. “Unfortunately, the State Board abdicated its responsibility to take action on petitions regarding critically important CVP water rights issues,” the Friant petition said. “Instead, it allowed its executive director to make seriously deficient decisions beyond his authority that adversely affected the water supply for millions of Californians.”

The plaintiffs assert that “these illegal actions … dramatically curtailed the irrigation, municipal and industrial water supply for petitioners and have directly, immediately and adversely affected the livelihoods of the many communities and family farmers who depend on this water.”

Friant’s petition takes issue with the State Board’s failure to honor water right seniority and imposition of “health and safety” use limitations on the Reclamation’s Delta water exports. The Congressionally authorized purposes of the Central Valley Project do not recognize a “health and safety” limitation on water use.
Much of the Friant petition focuses on a series of State Board executive director orders issues earlier this year in response to Temporary Urgency Change Petitions (TUCPs) filed in connection with drought conditions by the state DWR and Reclamation. These orders contributed to Reclamation’s failure to meet its obligation to provide the San Joaquin River’s senior water rights holders, the Exchange Contractors, with an adequate substitute supply of north state water. Instead, the Exchange Contractors were supplied much of the summer with water released from Friant Dam, a major cause of the Friant Division’s first- ever Zero allocation of CVP water.

Friant’s petition takes issue with the State Board’s failure to honor water right seniority and imposition of “health and safety” use limitations on the Reclamation’s Delta water exports. The Congressionally authorized purposes of the Central Valley Project do not recognize a “health and safety” limitation on water use. “The State Board is without authority or jurisdiction to adopt a water quality objective that requires Reclamation to consent to change the federally authorized purposes of the CVP,” the Friant petition asserts. “Additionally, the State Board is required to honor water rights priority in amending any water quality control plan by conducting a regulatory proceeding as well as an adjudicative proceeding to assign responsibility to the water users for meeting the water quality objectives of the plan.” Friant also contends the state violated applicable law “by failing to consider and balance factors relating to the public interest” when approving the Drought Operations Plan (DrOP).

The Friant petition also contends, “A TUCP changing a water quality control standard cannot have the effect of authorizing a junior diverter . . . to take water when senior water rights have not been fulfilled. … Despite the clear legal obligation of Reclamation to protect its senior water rights holders, and the clear legal duty of the State Board to uphold and enforce California’s water rights priorities when determining responsibility for meeting a water quality standard, both the TUCP Orders and the Order Denying Petitions abrogate this priority.”

The latter involves the most recent State Board action to which Friant objects. It came September 24 when board members denied petitions for reconsideration filed by Friant and other agencies. That action “affirmed” all of Executive Director Howard’s TUCP actions.
Friant’s petition asks for “an immediate review of these decisions by the Court along with necessary declaratory and injunctive relief.”
The Friant Water Authority is a public joint-powers agency representing 21 water agencies that deliver Central Valley Project water from the San Joaquin River to more than one million acres along the southern San Joaquin Valley’s East Side.
The Authority operates and maintains the Friant-Kern Canal for the U.S. Bureau of Reclamation.

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