May 21,2014
Friant Water Authority representing water districts in Tulare,Fresno and Kern counties headed to court this week to try to shake lose some water for their hard hit farms and communities. Friant is seeking a quick ruling asking judge Lawrence O’Neill for a restraining order to stop release of water down the San Joaquin River.
We “cannot simply sit idly by while the United States drains our farmers’ lifeblood in violation of the federal and state laws protecting the priority to this water.” the lawsuit says.
How the U.S. Bureau of Reclamation has implemented the unprecedented release of water from Friant Dam in order to provide a Central Valley Project water supply down the San Joaquin River to senior water rights holders is now being challenged in U.S. District Court in Fresno by the Friant and many of its member water agencies.
Those Friant Division contractors, all of whom normally would otherwise be receiving supplies of CVP water through the Friant-Kern and Madera canals, instead continue to face a zero CVP water supply allocation from Reclamation. That has resulted in large part because of the Bureau’s decision last week to supply the San Joaquin River Exchange Contractors from the river even though water was available from other sources.
“We want to be clear that our complaint is not against the Exchange Contractors,” Friant Water Authority General Manager Ronald D. Jacobsma stressed. “Our complaint is against the United States for failing to deliver the Exchange Contractors their substitute water supply.”
“Trees and vines that haven’t already been pushed out will soon begin dying without water”
The May 20 filing asks the Court to issue a temporary restraining order and pursue other remedies, said Jennifer T. Buckman, Friant Water Authority General Counsel. She said there is a need for immediate action, which would direct Reclamation to use sources available to it to supply the Exchange Contractors with their substitute water.
“Trees and vines that haven’t already been pushed out will soon begin dying without water and the Bureau of Reclamation will not provide water this year,” Buckman said. The eastern part of the San Joaquin Valley – from the Merced-Madera county line in the north to the foot of the Tehachapi Mountains in the south, stretches 200 miles with more than a million acres of irrigated land, most of which depends on the water behind Friant Dam.
“Our farmers cannot simply sit idly by while the United States drains our farmers’ lifeblood in violation of the federal and state laws protecting the priority to this water. No reasonable person can expect that we would. It is especially important to follow the laws of priority in droughts such as these. It is the fundamental principle that gives our water rights system its stability.”
Friant water has always been there for farmers, even in the driest water years, since the first deliveries were made from then-new Friant Dam in 1944. Until late last week, since 1951, Reclamation had always supplied the San Joaquin River’s senior water rights holders along the valley’s West Side with water pumped and exported at the Delta near Tracy for delivery through the Delta-Mendota Canal to Mendota Pool, west of Fresno, as a substitute supply. This exchange of waters for over 60 years has made possible the diversion of San Joaquin River upstream at Friant Dam for delivery into the two East Side canals, enabling growers to invest heavily in permanent plantings of citrus, fruit and nut trees, and grapes.
Communities Too
It takes at least three to five years to produce anything at all from a new tree or vine, and recovering on the investment of those years takes many more,” Buckman said. “So when the trees die, farmers, their families and those they employ will be the big losers.” Several communities, including Fresno, Orange Cove, Lindsay, Strathmore and Terra Bella also depend on Friant water.
“The United States’ decision was made just May 13, and implemented starting last Thursday (May 15), but with so little water to go around due to the drought, every day that the water goes someplace else, it will create harm that cannot be repaired,” said Buckman. “Before it is too late, the entire Valley needs the Court to adjudicate, even just temporarily, where the water should go. The status quo of the last six decades – that the government should provide the first waters pumped at the Delta to those who have the oldest rights to it, enabling those served by the Friant Dam to receive San Joaquin River water – should be held in place until the Court has time to hear the entire case.”
General Manager Jacobsma said Friant water users “have tried for months to work with Reclamation and the state Department of Water Resources to improve water supply conditions for the Exchange Contractors and the Friant Division. We have made our concerns known but, even with the late season rain events, Reclamation would not take action to provide full substitute water to the Exchange Contractors.” Instead, Jacobsma noted, Reclamation began releasing water from Friant Dam to supply the Exchange Contractors.
“That action is effectively taking all the Millerton Lake water supply that would otherwise been available to keep tens of thousands of acres of permanent plantings — primarily citrus — alive,” Jacobsma said. “We had no choice but to take legal action to protect the water rights of the Friant Division water contractors and the farms and communities supported by that water.”
According to General Counsel Buckman, Friant and its member districts have raised three strong legal arguments:
The first claim asks the Court to confirm the rights under the Friant contracts with Reclamation. Under these contracts, Reclamation promised it would not deliver any water to the Exchange Contractors from Millerton Lake “unless and until required by the terms of” the Exchange Contract. Reclamation also promised that it would not “knowingly and voluntarily” make decisions that prevent it from supplying substitute water to the Exchange Contractors. Reclamation promised each of the Friant contractors that if there were water available — whether from the Sacramento River and its tributaries or the Delta — the federal agency would never make a voluntary choice not to supply it.
The second claim is for violation of the Central Valley Project Improvement Act. The CVPIA provides for the Secretary of the Interior to enter into contracts with agencies administering wildlife refuges or entities that supply water to refuges. These include the Grassland Water District and Grassland Resource Conservation District, as well as the U.S. Fish and Wildlife Service. Water for these refuges is to come only from “Central Valley Project yield,” a statutory term defined as “delivery capability of the Central Valley Project . . . after . . . other flow and operational requirements imposed by terms and conditions existing in licenses, permits, and other agreements pertaining to the Central Valley Project under applicable state law existing at the time of enactment of this title have been met.” CVPIA § 3406(b)(2). In a series of prior court cases, the courts have already ruled that the amount of water necessary to provide to the Exchange Contractors as “substitute water” is not to be considered CVP yield under the CVPIA. Under the CVPIA, the marshes for migratory birds – ducks and geese – are thus to be supplied only after the Exchange Contractors’ substitute water requirements are first satisfied.
The third claim is for violation of the 1902 Reclamation Act, under which the Bureau of Reclamation was established. That law requires the United States to follow state water rights law, including the “first in time, first in right” rule. Here, the United States holds senior water rights to the water collected from the Delta at the Tracy Pumping Plant. By providing the water to junior rights holders – the State Water Project, or the wildlife refuges – the United States is allowing junior water users to line-jump, in violation of California’s system of water rights priorities. Instead, the United States should be serving the priority rights of the Exchange Contractors with the water it obtained as a San Joaquin River exchange supply.
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.
