United States District Court, E.D. California
For San Luis & Delta-Mendota Water Authority, Westlands Water District, Plaintiffs: Eileen M. Diepenbrock, Jonathan R. Marz, LEAD ATTORNEYS, Diepenbrock Elkin LLP, Sacramento, CA; Andrew Paul Tauriainen, Hanspeter Walter, Rebecca Rose Akroyd, Daniel Joseph O'Hanlon, Kronick Moskovitz Tiedemann and Girard, Sacramento, CA.
For Save San Francisco Bay Association, Intervenor Plaintiff: Paul A. Peters, LEAD ATTORNEY, Hines & Thomas, San Francisco, CA.
For United States Department of Interior, Kenneth Lee Salazar, Secretary of the United States Department of the Interior, United States Fish and Wildlife Service, Rowan W. Gould, Acting Director of the United States Fish and Wildlife Service, United States Department of the Interior, Ren Lohoefener, Director of the United States Fish and Wildlife Service, Pacific Southwest Region, United States Department of the Interior, United States Bureau of Reclamation, Michael L. Connor, Commissioner of the United States Bureau of Reclamation, United States Department of the Interior, Donald R. Glaser, Director of the United States Bureau of yseReclamation, Mid-Pacific Region, United States Department of the Interior, Defendants: Devon Lehman McCune, LEAD ATTORNEY, United States Department of Justice, Denver, CO.
For Environmental Defense Fund, Intervenor: Paul A. Peters, LEAD ATTORNEY, Hines & Thomas, San Francisco, CA; Cynthia L. Koehler, Environmental Defense Fund, Oakland, CA.
ORDER DENYING PLAINTIFFS' MOTION FOR LIMITED DISCOVERY WITHOUT PREJUDICE
Gary S. Austin, UNITED STATES MAGISTRATE JUDGE.
Plaintiffs San Luis & Delta-Mendota Water Authority and one of the Authority's member districts, Westlands Water District (collectively, " Plaintiffs" ) filed this action for declaratory and injunctive relief in June 2011, against the U.S. Department of the Interior, the U.S. Bureau of Reclamation, the U.S. Fish & Wildlife Service and a number of federal officials (collectively, " Federal Defendants" ). Plaintiffs sought to prevent the U.S. Bureau of Reclamation (" Reclamation" ) from temporarily reducing the volume of water pumped and exported from the Sacramento-San Joaquin River Delta and San Francisco Bay (referred to as the Bay-Delta) to the Delta-Mendota-Canal, at the C.W. " Bill" Jones Pumping Plant (" Jones Pumping Plant" ) near Tracy, California. The Jones Pumping Plant is part of the operations of the Central Valley Project, a major federal water project in California. The export pumping reduction was recommended by the U.S. Fish and Wildlife Service
(" FWS" ) and other fish agencies. Reclamation directed the pumping reduction through a change order dated June 6, 2011 issued to the San Luis & Delta-Mendota Water Authority, the entity responsible for operating the Jones Pumping Plant. Reclamation ordered the export pumping reduction " for the stated purpose of improving conditions for out-migrating fall run Chinook salmon and Steelhead," a number of which were being lost or salvaged at the Delta pumps. Doc. 80, Joint Status Report, at 6. The export pumping reduction ordered by Reclamation remained in effect for fourteen days, from June 8 to June 23, 2011. Id. Since the inception of this action challenging the pumping reduction, the District Court has ruled on motions for a temporary restraining order and preliminary injunction filed by Plaintiffs, as well as two motions to dismiss filed by Federal Defendants--all of which were denied. Pending before the Court is Plaintiffs' Motion for Limited Discovery. Doc. 83. The matter has been fully briefed and argued by the parties, and is ripe for decision.
II. APPLICABLE LEGAL FRAMEWORK
This case presents a conflict between two provisions of the 1992 Central Valley Project Improvement Act (" CVPIA" ), Pub. L. No. 102-575, 106 Stat. 4700 (1992). The two provisions at issue are CVPIA (Pub. L. No. 102-575) § § 3406(b)(2) and 3411(b). One of these provisions, CVPIA § 3406(b)(2), requires the Secretary of the Interior (" Secretary" ), through the Bureau of Reclamation, to dedicate 800,000 acre-feet of water to serve certain fish, wildlife, and habitat restoration purposes. The other provision, CVPIA § 3411(b), requires the Secretary to comply with a 1985 agreement between the federal government and California to coordinate the operations of their respective water projects in the state, namely the Central Valley Project and the State Water Project.
This agreement, the " Agreement Between the United States of America and the Department of Water Resources of the State of California for Coordinated Operation of the Central Valley Project and the State Water Project," is commonly known as the " Coordinated Operations Agreement" or " COA." Article 6(g) of the COA requires both parties to the agreement to " export and store as much water as possible" during " excess water conditions."
In this case, Plaintiffs challenge, based on Article 6(g) of the COA, the lawfulness of Reclamation's two-week pumping reduction which the parties agree occurred during a period when the Sacramento-San Joaquin Delta was experiencing " excess water conditions." Federal Defendants assert, in response, that FWS and Reclamation acted pursuant to the statutory mandate in CVPIA § 3406(b)(2) to implement certain fish, wildlife and habitat restoration measures.
A. The Relevant Provisions of the COA and the CVPIA
Congress authorized and directed the Secretary of the Interior to execute and implement the COA in 1986 through Pub. L. No. 99-546, 100 Stat. 3050, § 103. Subsequently, in November 1986, the parties to the COA executed the agreement, which they had reached in May 1985. Article 6(g) of the COA defines the " Responsibilities During Excess Water Conditions" of the two parties to the COA, i.e., the Bureau of Reclamation and the State of California Department of Water Resources (DWR), and states: " During excess water conditions each party has the responsibility to export and store as much water as possible within its physical and contractual limits." COA, Art. 6(g). The COA defines " excess water conditions" as " periods when it is agreed that releases from upstream reservoirs plus unregulated flow exceed Sacramento Valley inbasin uses, plus exports." COA, Art. 3(c).
In 1992, Congress enacted the CVPIA, Pub. L. No. 102-575, 106 Stat. 4700 (1992). In § 3411 of the CVPIA, Congress directed the Secretary of the Interior, acting through the Bureau of Reclamation, to comply with the COA. CVPIA § 3411(b) states:
SEC. 3411--COMPLIANCE WITH STATE WATER LAW AND COORDINATED OPERATIONS AGREEMENT.
(b) The Secretary [of the interior], in the implementation of the provisions of this title, shall fully comply with the United States' obligations as set forth in the " Agreement Between the United States of America and the Department of Water Resources of the State of California for Coordinated Operation of the Central Valley Project and the State Water Project" dated May 20, 1985, and the provisions of Public Law 99-546; and shall take no action which shifts an obligation that otherwise should be borne by the Central Valley Project to any other lawful water rights permittee or licensee.
At the same time, Congress directed the Secretary of the Interior, in § 3406(b)(2) of the CVPIA, to dedicate and manage 800,000 acre-feet of Central Valley Project yield annually for the primary purpose of
implementing the CVPIA's fish, wildlife, and habitat restoration mandate. CVPIA § 3406(b)(2) states:
(b) FISH AND WILDLIFE RESTORATION ACTIVITIES. The Secretary, immediately upon the enactment of this title, shall operate the Central Valley Project to meet all obligations under state and Federal law, including but not limited to the Federal Endangered Species Act, 16 U.S.C. 1531, et seq., and all decisions of the California State Water Resources Control Board establishing conditions on applicable licenses and permits for the project. The Secretary, in consultation with other State and Federal agencies, Indian tribes, and affected interest, is further authorized and directed to:
(2) upon enactment of this title dedicate and manage annually eight hundred thousand acre-feet of Central Valley Project yield for the primary purpose of implementing the fish, wildlife, and habitat restoration purposes and measures authorized by this title; to assist the State of California in its efforts to protect the waters of the San Francisco Bay/Sacramento-San Joaquin Estuary; and to help meet such obligations as may be legally imposed upon the Central Valley Project under state or federal law following the date of enactment of this title, including but not limited to additional obligations under the federal Endangered Species Act....
Pub. L. No. 102-575, § 3406(b)(2), 106 Stat. ...