public advocacy cases: When we fight, we win
WINS: 6, LOSSES: 0, ACTIVE: 9
THE PUBLIC TRUST DOCTRINE
SWRCB Pattern and Practice Public Trust Lawsuit
Status: Favorable Settlement; Attorney: Jason Flanders
In August 2015, C-WIN challenged the State Water Resources Control Board (SWRCB) for ignoring state law. During the drought, salinity standards were relaxed to enable increased pumping of Delta water to corporate agricultural interests in the San Joaquin Valley. After four years of successfully addressing procedural issues, we went to trial in November 2019. This was the first public trust doctrine case that encompassed an entire estuary. The California Delta estuary, with its 26 major rivers and creeks, and three runs of endangered salmon, is the largest estuary on the west coast of the Americas and the source of consumptive fresh water for over half of California’s population. We believe this to be an historic, precedent-setting case.
Read the complaint here.
Update: C-WIN and our co-plaintiffs reached a favorable settlement that was announced on July 21, 2020.
Read the agreement here.
INFRASTRUCTURE
Ventura Interconnection Pipeline
Status: Active; Attorney: Roger Moore
With the goal of improved water reliability, the proposed “State Water Interconnection” is a pipeline connecting the water systems of Calleguas (via the Metropolitan Water District) and the City of Ventura. It would facilitate the availability of state water from Calleguas to the Casitas, United and Ventura water districts, with the City of Ventura acting as lead agency. C-WIN submitted extensive comments to the EIR outlining its failure to meet CEQA guidelines, failure to demonstrate improved reliability and failure to consider costs to ratepayers. The Ventura City Council certified the EIR on August 7, 2019, and approved the next phase of the project. C-WIN filed a CEQA challenge on September 4, 2019.
WaterFix Required CEQA Approval Overturned
Status: Won; Attorney: Mike Jackson
In 2016, C-WIN sued (JCCP 4942) the Department of Water Resources (DWR) for an inadequate CEQA approval of the WaterFix twin tunnels, C-WIN exposed the many illegalities of the project including: lack of water rights, lack of flows into the Bay/Delta estuary, failure to protect endangered species, failure to protect public trust resources, inadequate consideration of climate change, and inadequate consideration of earthquake hazards. In light of these gross omissions, Governor Newsom withdrew the twin tunnel project and withdrew DWR’s approval of the project. Request for dismissal by the state was filed in July 2019. C-WIN dismissed its lawsuit without prejudice to refile when, and if, there is a new project.
WaterFix Required Validation Overturned
Status: Won; Attorney: Roger Moore
On the same day the now over-turned twin-tunnel project was proposed, a validation action was filed by its proponents requesting court approval of a mechanism enabling an approximately $50 billion rate increase to ratepayers of the state and federal water projects. C-WIN, CSPA, AquAlliance, and the California Indian Water Commission responded immediately to the validation action, opposing the use of state bonds without a valid CEQA document or public vote. Several motions and court appearances by C-WIN and its allies in Sacramento Superior Court resulted in a withdrawal of the request by the DWR and the Bureau of Reclamation.
Water/Fix Change of Point of Diversion
Status: Won; Attorney: Mike Jackson
A key permit required for the tunnel project was for the change in point of diversion from the present location near Tracy, California at the southern edge of the Delta, to a new location on the Sacramento River near the small town of Courtland in Sacramento County. Point of diversion permits are subject to stringent legal requirements including that there be no injury to any other water user in the area between the original and new points of diversion. In March of 2017, representing the positions of environmental organizations throughout California, C-WIN and its partners participated in approximately 150 days of hearings—hiring expert witnesses, filing evidence, and cross-examining DWR and Central Valley Project (CVP) contractors and expert witnesses. After the hearings and before the legal briefing, the DWR withdrew their permit request. Participants in the hearing acknowledged the C-WIN team (C-WIN, CSPA and AquAlliance) as instrumental in the withdrawal.
WATER RIGHTS
Water Rights Protest
Status: Active; Attorney: Mike Jackson
The State Water (SWP) and Central Valley Water (CVP) held appropriative water rights in the Delta estuary for their respective customers. These unused rights were set to expire in 1990. The State Water Resources Control Board (SWRCB) granted a “use them or lose them” extension until 2009. As of 2009, the water rights were NOT used. At that time (in 2009) C-WIN filed an official Protest in court that has yet to be acknowledged. Our Protest filing gives us standing to permanently extinguish these rights.
We have targeted and continue to work to revoke the millions of acre-feet of expired water rights claims held by the SWP and the CVP. In a previous case, C-WIN sued to stop the construction of the Auburn dam on the American River. In that case, four million acre-feet of expired water rights were revoked, effectively killing the dam project. This eased some of the environmental stress on the Delta, reducing exports to Central Valley corporate farmers and urban Southern California. To put that amount in context, there are 153.7 million acre-feet of water rights claims on only 29 million acre-feet of consumptive water available in the Delta estuary.
SWRCB Water Flows and Quality
Status: Active; Attorney: Mike Jackson
Scientific research indicates that the in-stream flows of the San Joaquin River watershed must be held at 65% or higher to protect the fish and water quality of the Bay/Delta. In 2018 an EIR prepared by the SWRCB set that amount at only 40%. C-WIN is challenging the SWRCB’s document in court.
THE DELTA PLAN
Delta Stewardship Council and Delta Reform Act
Status: Won; Attorney: Mike Jackson
In 2014, C-WIN sued to overturn the Delta Plan required by the 2009 Delta Reform Act and created by the Delta Stewardship Council. The Court ruled that the Plan approved by the Delta Stewardship Council was deficient and lacked quantifiable, measurable goals to insure the recovery of the Delta ecosystem as mandated by the Delta Reform Act. No structural project, like the now-revoked Twin Tunnels or the proposed single tunnel, can move forward without an approved Delta Plan.
Delta Stewardship Council and Delta Reform Act Plan Amendments
Status: Active; Attorney: Mike Jackson
In 2017, the first Delta Plan was overturned as a result of our CEQA challenge. Subsequently, the Delta Stewardship Council filed an amended Delta Plan, which still does not comply with the requirements for measurable benchmarks. C-WIN has again sued to overturn the amended Plan. This is currently in the courts.
GROUNDWATER WELL DRILLING
San Luis Obispo Well Drilling Permit
Status: Active; Attorney: Mark Wolf
In August, 2016, C-WIN filed a case challenging San Luis Obispo County’s practice of issuing groundwater well-drilling permits in over-drafted groundwater basins without performing environmental reviews to California Environmental Quality Act (CEQA) standards. It is the County’s view that the permits are ministerial (approved without review) and not discretionary (subject to CEQA review) actions. The trial court dismissed our case, and the Court of Appeal upheld that decision. Concurrently, an almost identical case was filed challenging similar conduct by Stanislaus County. The trial court likewise dismissed that case, but a different Court of Appeal reversed, holding that well permits were in fact discretionary and subject to CEQA. The resulting conflict in appellate opinions prompted the State Supreme Court to grant review of our case.
SWP CONTRACT AMENDMENTS
The Monterey Amendments, CEQA and Reverse Validation cases
Status: Unfavorable, court refused to rule on the merits of the case; Attorney: Adam Keats
In 2010, C-WIN filed a CEQA case against amendments made to the State Water Project (SWP) contract and a Reverse Validation case disputing the privatization of the Kern Water Bank. Known as the “Monterey Amendments”, 57 percent of Kern Water Bank water rights were granted to one individual, Stewart Resnick. Our goals in these cases were to stop privatization of state water and return the Kern Water Bank to the public for its original purpose of storing water south of the Delta for times of drought.
Unfortunately, the California Supreme Court chose to not hear our appeal of the Third District Court of Appeal’s ruling that went against us. That opinion was not much more than a rubber stamp of the trial court’s finding that most of our claims were untimely, since the Monterey Amendments were supposedly approved back in 1997, years before the 2010 environmental review was finally completed.
The effect of the opinion was that the real issues of the case were never litigated and the issue of “paper water” was never addressed. The courts never addressed the fact that the Kern Water Bank—a public resource meant to provide water to people during drought—was essentially gifted to a private company for its own profit-focused use.
The courts never touched on why the state thought it was OK to relax the laws governing who could access public water, and they allowed private individuals to take millions of gallons of water for their own profit at the expense of California citizens and the environment. We plan to pursue this injustice to the citizens of California.
State Water Project Contract Extension (Revenue Bonds)
Status: Active; Attorney: Roger Moore
In 2018, C-WIN filed a CEQA case requesting that the Environmental Impact Report (EIR) on the proposed 50-year SWP contract extension, to allow for revenue bond financing of the tunnels, be denied and overturned. If allowed to stand, these contract amendments would free the Department of Water Resources of public oversight on all new projects and revenue bond financing.
State Water Project Contract Extension (Revenue Bond Validation)
Status: Active; Attorney: Adam Keats
In 2019, DWR filed a Validation case as a companion required action to the contract extension CEQA case. C-WIN filed to overturn this Validation case in 2019.
Santa Barbara SWP Contract Transfer
Status: Active; Attorney: Roger Moore
In 2012, The Santa Barbara Board of Supervisors was approached by the Central Coast Water Authority (CCWA) with a proposal to transfer control of Santa Barbara’s SWP contract to the CCWA. The CCWA is a joint powers authority functionally controlled by the Santa Maria City Council. Their goals regarding water are very different than those of the South Coast’s four water agencies. Counter to the mandates of the 2009 Delta Reform Act, the CCWA supports the DWR’s plans for new infrastructure that diverts more water from the Delta to agricultural interests in south, and would fund those projects via SWP contract amendments that would cause significant rate increases on the South Coast. C-WIN laid out these implications to the Santa Barbara Board of Supervisors, who voted not to transfer the contract. C-WIN is working to make sure control of the contract will remain with Santa Barbara County.
WATER TRANSFERS
Long-term Water Transfer Program Overturned
Status: Won; Attorney: Jason Flanders
In 2018, C-WIN’s partners, AquAlliance and CSPA prevailed in federal court over the inadequacy of the Bureau of Reclamation’s 10-year water transfer plan’s environmental document. The massive amount of river water that could have been sold in 10 years was equivalent to what a city of 100,000 people would use in 200 years. New water diversion projects are problematic because water in California is a finite resource that is over-subscribed by a factor of five. Existing dams on major California rivers divert water to northern California users with rights superior to those in Southern California. Despite this fact, state and federal government agencies continue proposing new diversion projects that enable the use of Sacramento Valley rivers and groundwater for transfers to SWP and CVP contractors south of the Delta. While the transfer program was defeated, we expect it to be revived. Without access to Sacramento Valley water, none of the proposed water development projects would have water to deliver.