United States District Court, N.D. California
ORDER GRANTING MOTION TO INTERVENE Re: ECF No.
TIGAR UNITED STATES DISTRICT JUDGE
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
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
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.” 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.
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.
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.
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.
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.
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)
(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 ...