Water War Victory to Wildlife This Time

Central Valley Water Project

The Bureau of Reclamation won an important water rights victory over farming interests in California’s Central Valley Friday. The 9th U.S. Circuit Court of Appeals said the Bureau does not have a duty to release certain levels of water for irrigation before it is released for other purposes. The appeals court said, instead, that the Bureau retains the discretion to allocate San Luis water [part of the Central Valley Water Project] to protect the environment and other obligations.

Over farmers’ objections, the Bureau was setting aside water for protection of fish and wildlife.

“The farmers’ claims amount to a broad programmatic attack on the way the Bureau generally operation the Central Valley Project,” wrote Judge Stephen Trott for the panel.

The farmers have no contractual rights with the Bureau to irrigation water obtained as a result of its reclamation works, according to Trott.

Rather than basing claims on the contract, the farmers argue that various reclamation laws independently impose those obligations on the bureau. Not so, according to Trott.

In one portion of the decision, the panel held that because there was no final agency action in the case, there is no jurisdiction for the court to decide the Administrative Procedures Act claim, he wrote.

The decision upholds the trial court decision from the Eastern District of California.

“Although the farmers content that the CVP is designed to promote irrigation over the protection of fish and wildlife, Congress decided otherwise,” Trott said. They must manage the water to comply with the Endangered Species Act as well, the court said.  Trott was joined by Judges Johnnie Rawlinson and Frederick Block, a visiting judge from the Eastern District of New York.

The case is just one of three appeals heard at the same time in December that presented a variety of water rights claims. The other two appeals have not been resolved.

In the first of the remaining two cases, the Tehama-Colusa Canal Authority challenges a lower court decision that water users in the Sacramento Valley, such as Tehama-Colusa, have no preferential right to Central Valley Project water because it is near the source of the water.

And the second case, by the Firebaugh Canal Water District, asks whether the San Luis Act obligates the federal government to provide drainage for land located outside the San Luis Unit of the Central Valley Project.

All three cases were argued December 5 last year, but so far only the San Luis Unit Food Producers case has been resolved.

Thanks to the Kronick Moskowvitz Tiedemann & Girard firm’s Natural Resources blog for a concise summary of the Tehama-Colusa and Firebaugh challenges.

Case: San Luis Unit Food Producers v. U.S., No. 11-16122

Tehama-Colusa Canal Authority v. US Dept. of Interior, No. 11-17199

Firebaugh Canal Water Dist. v. USA, No. 11-17715

 

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