Trump administration sues State Water Board over 'failure' to comply with CEQA

The Trump administration today filed a lawsuit against the State Water Resources Control Board for “failure” to comply with the California Environmental Quality Act (CEQA) for its approval of increased flows for salmon, steelhead and other species on the San Joaquin River.

Fishing and environmental groups called the litigation a “frivolous attempt” to divert more water and “destroy salmon industry jobs and families.”

The Department of Justice and the U.S. Department of the Interior (DOI) filed its civil actions against the State Water Board in both federal and state court.

On December 12 of last year, the Board approved and adopted amendments to the Water Quality Control Plan for the San Francisco Bay/Sacramento–San Joaquin Delta Estuary and the related Substitute Environmental Document (SED) that would increase flows needed for imperiled salmon, steelhead and other fish species in the San Joaquin River and its tributaries, as required under state law.

The amendments set a 40% flow standard for three tributaries that flow into the lower San Joaquin River — the Stanislaus, Tuolumne and Merced rivers - and a revision of the salinity standard for the South Delta. Some environmental groups backed the flow standard, while many environmental and fishing groups had pushed for the adoption of a 60 percent flow standard, based on the science. A State Water Board report published in 2010 found that restoring native salmon and steelhead would require 60 percent of the San Joaquin River’s unimpaired flow.

The board also voted to "create a space" for a proposal regarding voluntary agreements outlined in the meeting by Department of Water Resources Director Karla Nemeth and Department of Fish and Wildlife Director Charlton H. Bonham. That proposal was promoted by San Joaquin Valley agribusiness interests and water agencies.

However, the Trump administration claims that the amended plan adopted by the board “fails to comply with CEQA and, once implemented, will impair DOI’s ability to operate the New Melones Dam consistent with Congressional directives for the project.”

New Melones Dam is a major storage dam operated by the federal Bureau of Reclamation on the Stanislaus River, a major tributary of the San Joaquin River, in California’s Mother Lode region.

“The environmental analysis by the California State Water Resources Control Board hid the true impacts of their plan and could put substantial operational constraints on the Department of the Interior’s ability to effectively operate the New Melones Dam which plays a critical role in flood control, irrigation, and power generation in the Sacramento region,” claimed Assistant Attorney General Jeffrey Bossert Clark for the Department of Justice’s Environment and Natural Resources Division, in a statement. “The Department of Justice will continue to advocate on behalf of our federal partners, especially when it comes to the proper application of federal and state environmental laws.”

“As stated in our letter to the Board on July 27, 2018, today’s lawsuit affirms the Bureau of Reclamation’s continued opposition to the State Water Board plan. The plan poses an unacceptable risk to Reclamation’s water storage and power generation capabilities at the New Melones Project in California and to local recreational opportunities,” said Bureau of Reclamation Commissioner Brenda Burman. “We pledge our commitment to environmentally and economically sound water management for California’s farms, families, business, and natural resources, and the American public as a whole.”

The lawsuits filed today allege that in approving the amended plan and final SED, the Board failed to comply with the requirements of CEQA in the following ways:

• “The Board failed to provide an accurate, stable and finite project description, because the Board analyzed a project materially different from the project described in the project description;
• The Board improperly masked potential environmental impacts of the amended plan by including carryover storage targets and other reservoir controls – mitigation measures – in its impacts analysis and by not analyzing the impacts of the amended plan on the environment without reservoir controls; and
• The Board failed to adequately analyze the impacts of the amended plan, including with respect to water temperature and related water quality conditions, and water supply.”

As alleged in the lawsuits, the United States “will be directly and substantially impacted by the Board’s actions, which impacts include, but are not limited to, operational constraints on the New Melones Project, loss of available surface water supplies for New Melones Project purposes, including Central Valley Project (CVP) water service contracts, and involuntary dedication of federal reservoir space for Board purposes.”

Fishing and environmental groups blasted the lawsuit as “frivolous” — and said it is a “direct threat to states rights” and threatens similar processes taking place in other California river watersheds.

“California has authority over the waters in the state and exercises that through the State Water Resources Control Board which acted appropriately on December 12 to re-balance a badly out of balance water diversion scheme in the San Joaquin Valley,” said John McManus, President of the Golden Gate Salmon Association. “The lawsuit filed today by the federal government is a frivolous attempt to see more water diverted and more salmon industry jobs and families destroyed. The federal lawsuit pretends that ten years of hard work by the State Water board and thousands of pages of scientific documentation leading up to the December 12 decision never happened."

“The Trump administration is suing California for trying to restore water flows for salmon in the Bay Delta and San Joaquin under California's law,” said Regina Chichizola of Save California’s Salmon in a Facebook post. “This is a direct threat to state's rights and threatens similar processes in the Sacramento, Shasta, Eel and Russian Rivers.”

The Trump administration is represented in this action by Assistant Attorney General Clark and United States Attorney McGregor W. Scott; with lead counsel Stephen M. Macfarlane, Romney Philpott, Erika Norman of the Natural Resources Section; and Kelli L. Taylor of the U.S. Attorney’s Office for the Eastern District of California.

CEQA is a California statute that requires state and local agencies to identify the significant environmental impacts of their actions and to avoid or mitigate those impacts, if feasible.

Here are the court documents for the Trump Administration’s lawsuit against the State Water Resources Control Board:

United States v. State Water Resources Control Board – writ of mandate: https://mavensnotebook.com/wp-content/uploads/2019/04/United-States-v.-State-Water-Resources-Control-Board-state-case-00129916xE2E14.pdf
United States v. State Water Resources Control Board – complaint for declatory and injunctive relief: https://mavensnotebook.com/wp-content/uploads/2019/04/WQCP-Federal-Complaint.pdf