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Natural Resources Defense Council v. McCarthy

United States District Court, N.D. California

July 18, 2016

GINA MCCARTHY, et al., Defendants.



         Before the Court is a Motion to Intervene, filed by the San Luis & Delta-Mendota Water Authority and Westlands Water District (“Proposed Intervenors”). ECF No. 10. Plaintiffs and Defendants have both stated that they do not oppose intervention. ECF Nos. 26, 28. The Court will grant the motion.

         I. BACKGROUND

         This case involves revisions to water quality standards adopted by the California State Water Resources Control Board from 2014 through 2016, in response to drought conditions in California. The revisions affected water plans that regulate water usage, storage, and movement in the Sacramento San Joaquin Delta, ECF No. 1 (“Compl.”) ¶¶ 1-3; ECF No. 10 at 8-9. Plaintiffs allege that this delta serves “as critical habitat to a broad array of fish and wildlife, ” including the Central Valley Steelhead and the North American green sturgeon, and that other species depend on the water quality in the delta, such as the starry flounder and the white sturgeon. Compl. ¶ 3. The revisions lowered allowable river flow levels, increased the proportion of water that can be exported out of the Delta, altered the allowable salinity of the water, and weakened restrictions on when water gates may be opened, all of which has “contributed to severe adverse impacts” on animal species. Id. ¶¶ 6-9; see also ECF No. 10 at 9. Plaintiffs brought this litigation against the Environmental Protection Agency (“EPA”), alleging that the EPA violated the Clean Water Act (“CWA”) by failing to review the revisions to a state’s water quality standards, as required by Section 303(c). Id. ¶¶ 70-72. They request declaratory and injunctive relief. See id.

         Proposed Intervenors moved to intervene on May 4, 2016, approximately two weeks after the complaint was filed. Their motion alleges that the challenged revisions were “temporary urgency change orders” issued by the state water board “in response to extraordinary drought conditions in 2014, 2015, and 2016.”[1] ECF No. 10 at 7. They contend that Plaintiffs are incorrect in asserting these changes are subject to EPA review under Section 303. Id. Proposed Intervenors allege that in response to the drought conditions, the California Governor issued proclamations and executive orders “directing, among other actions, that the State Water Board ‘consider modifying requirements for reservoir releases or diversion limitations, where existing requirements were established to implement a water quality control plan.’” Id. at 11. State agencies then jointly filed several “Temporary Urgency Change Petitions, ” in order to “conserve the . . . water supplies to meet multiple purposes including water deliveries to agricultural and urban contractors, as well as for fish and wildlife purposes.” Id. These requests were granted in part and denied in part. Thus, Proposed Intervenors contend that the state water board did not change water quality plan objectives or standards, as Plaintiffs allege, but only “temporarily modified water rights conditions in response to an urgent need.” Id. at 13.

         In regards to Proposed Intervenors’ relationship to this case, the San Luis & Delta-Mendota Water Authority states that it is comprised of 28 member water agencies that are responsible for “meet[ing] the water supply needs of over 1.2 million acres of agricultural lands within areas of San Joaquin, Stanislaus, Merced, Fresno, Kings, San Benito and Santa Clara Counties, ” “provid[ing] water to approximately 100, 000 acres of managed wetlands and wildlife refuges, ” and “support[ing] almost 2 million people within the service areas, including within the City of Tracy and urban areas within Santa Clara County.” Id. at 13. It operates and maintains water facilities within the San Joaquin Delta as well as the Delta-Mendota Canal, which is also affected by the challenged revisions. Id. at 13-14.

         Westlands Water District is “a California water district formed pursuant to California Water Code sections 34000 et seq., and is authorized to intervene in any proceeding involving or affecting the ownership or use of water within the district, or its water supplies.” Id. at 14. It is “comprised of over 600, 000 acres of farmland within areas of Fresno and Kings Counties, on the west side of the San Joaquin Valley, including some of the most productive agricultural lands in the world, ” and “holds vested contractual rights to receive up to 1.195 million acre-feet of CVP [Central Valley Project] water per year.” Id. However, the water district has received its “full contractual entitlement to CVP water in only two of the past twenty-seven years; indeed, in over half of those years Westlands has received fifty percent or less of its contractual allotment.” Id. In both 2014 and 2015, the water district received a zero percent allocation, and its current 2016 allocation is five percent of its allotment. Id.


         This Court has jurisdiction over this action pursuant to 33 U.S.C. §1365(a) and 28 U.S.C. §1331, as an action arising under the laws of the United States.


         Proposed Intervenors have moved both for intervention as a matter of right and permissive intervention. Because the Court concluded they are entitled to intervention as a matter of right, this order does not address permissive intervention.

         Federal Rule of Civil Procedure 24(a)(2) provides for intervention as a matter of right where the potential intervenor “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” The Ninth Circuit has summarized the requirements for intervention as of right under Rule 24(a)(2) as follows:

(1) [T]he [applicant’s] motion must be timely; (2) the applicant must have a ‘significantly protectable’ interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant’s interest must be inadequately represented by the parties to the action.

Freedom from Religion Found. v. Geithner, 644 F.3d 836, 841 (9th Cir. 2011) (quoting California ex rel. Lockyer v. United States, 450 F.3d 436, 440 (9th Cir. 2006)). Proposed intervenors must satisfy all four criteria; “[f]ailure to satisfy any one of the requirements is fatal to the application.” Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 950 (9th Cir. 2009). In evaluating motions to intervene, “courts are guided primarily by practical and equitable considerations, and the requirements for intervention are broadly interpreted in favor of intervention.” United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004). “Courts are to take all well-pleaded, nonconclusory allegations in the motion to intervene, the proposed complaint or answer ...

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