Hearing Date Scheduled for SWP’s Secret “Monterey Amendments” Cases
The 3rd District Court of Appeals will hear arguments for two C-WIN appeals on July 19, 2021
A combined hearing has been set for the “Monterey Plus” and “Kern Water Bank” appeals, aka Central Delta Water Agency v. DWR and Center for Food Safety v. DWR, aka "Central Delta I" and "Central Delta II." The combined hearing is scheduled for 2 pm on July 19, 2021 and will be virtual, with the public able to "attend" via the court's livestream.
The “Monterey Plus” appeal is the main challenge to the Monterey Amendments. The Monterey Amendments are a set of massive changes to the way the State Water Project is operated. Among other things, the amendments accomplished the following:
Deleting Article 18(b) in the contracts, which has provided that if the entire SWP was not fully built out, the water allocations, formally known as “entitlements” but now referred to as “Table A Amounts,” would be reduced by whatever the safe / reliable yield was for the system. This was an important safety valve in the SWP system; eliminating it has been directly responsible for the rise of “paper water” and the extremely unsustainable operation of the SWP system;
The transfer of the Kern Water Bank from state control to private control (by the Wonderful Company);
Eliminating Article 18(a), which provided for an “urban preference” in times of drought, meaning that when supplies were low agricultural users would have their deliveries reduced before urban users, under the theory that it is easier to fallow a field than it is to shut off water to a home;
Eliminating Article 21(g)’s restrictions on the use of surplus water. This article provided that surplus water could not be used for permanent economies, like the growing of tree crops as opposed to row crops.
The amendments were first approved in 1995 but were challenged in the PCL (Planning Conservation League) v. DWR litigation. That litigation ended with a settlement in 2003 after PCL’s appellate court victory. Among other things, the settlement required DWR to conduct a new environmental review for the Monterey Amendments, and after that review, to make a new decision on the project as the lead agency. DWR was originally the responsible agency under CEQA; the Central Coast Water Authority was the original lead agency for this massive statewide project (that was one of the claims PCL won in their lawsuit). DWR completed its environmental review in 2010 and a coalition of groups and two public agencies, led by C-WIN, filed suit.
Our suit raised a number of substantive issues, primarily focused on the four main topics above. The case also raises a procedural issue, regarding the relationship of CEQA review to project approval. DWR never made a new project approval after completing the review mandated by the PCL litigation; it just decided to keep operating the project to its 1995 approval, which it somehow thinks is still active (even though it was made before the environmental review was conducted and was made as a responsible agency, not a lead agency). The petitioners are arguing that the requirement to do a new EIR in the 2003 settlement necessarily meant that the 1995 approvals were void. The petitioners lost that argument in the trial court, as well as most of our other claims. We won our claim regarding the 2010 environmental review of the transfer of the Kern Water Bank. We then appealed the claims we lost. That is the appeal that is being heard in July.
While that appeal has been working its way through the courts, DWR went ahead and performed its remedial environmental review for the Kern Water Bank transfer. We then filed a new lawsuit on that EIR. Many of the claims overlap with those that were brought in the Monterey Plus case. We lost in the trial court (for many of the same reasons) and appealed. This appeal will also be heard in July at the same hearing.