Court Rejects Friant’s Petition For Release Order
A federal judge has rejected the Friant Water Authority’s request for a temporary restraining order to block the United States government from making Friant Dam releases to supply downstream senior water rights holders.
District Judge Lawrence J. O’Neill of Fresno issued his ruling May 27.
It does not affect future consideration of the broader litigation also filed by the FWA and most of its 21 member agencies on May 20, five days after the U.S. Bureau of Reclamation began to release water from Friant Dam to supply the San Joaquin River Exchange Contractors.
In response to the court’s decision, the FWA issued this statement:
“The Friant Water Authority is disappointed by the federal court’s denial of FWA’s request for a temporary restraining order. However, this is an interim ruling by the court and not a final decision on the merits, so FWA will still have a chance to prove its case when it gets its day in court.
“The court considered each of FWA’s three claims.
• “First, while the court acknowledged the considerable economic impacts of the loss of Friant’s water supply, it determined that FWA’s contract-based claims should be addressed by the Federal Court of Claims.
• “Second, the court indicated that it is not convinced that the water supply owed to the senior water rights holders on the San Joaquin River has priority over the refuge water supplies mandated by the Central Valley Project Improvement Act.
• “Finally, the court noted that the Department of Water Resources was an indispensable party to claims related to the [federal-state] Coordinated Operating Agreement, but the state could not be compelled to participate in the federal court proceedings and thus the federal court could not rule on this claim.”
Still being challenged is how the Bureau of Reclamation has implemented the unprecedented release of water from Friant Dam in order to provide a Central Valley Project water supply down the San Joaquin River to the Exchange Contractors, the river’s senior water rights holders.
“We want to be clear that our complaint is not against the Exchange Contractors,” Friant Water Authority General Manager Ronald D. Jacobsma stressed. “Our complaint is against the United States for failing to deliver the Exchange Contractors their substitute water supply.”
Friant Division contractors, all of whom normally would otherwise be receiving supplies of CVP water through the Friant-Kern and Madera canals, continue to face a zero CVP water supply allocation from Reclamation, while Reclamation has decided to release water from Friant to supply the Exchange Contractors even though water was available from other sources.
Jennifer T. Buckman, Friant Water Authority General Counsel, said the eastern San Joaquin Valley’s need is immediate because of permanent crop and related economic losses the area faces, which were acknowledged by Judge O’Neill.
“Trees and vines that haven’t already been pushed out will soon begin dying without water and the Bureau of Reclamation will not provide water this year,” Buckman said.
The eastern part of the San Joaquin Valley – from southern Merced County to the foot of the Tehachapi Mountains – stretches 200 miles with more than a million acres of irrigated land, most of which depends on the water behind Friant Dam.
ALWAYS BEEN THERE
Friant water has always been there for farmers, even in the driest water years, since the first deliveries were made from then-new Friant Dam in 1944.
Since 1951 and until releases began from Friant Dam May 22, Reclamation had always supplied the Exchange Contractors with a substitute supply of water pumped and exported from the Delta near Tracy for delivery through the Delta-Mendota Canal to Mendota Pool, west of Fresno.
This exchange of waters for over 60 years has made possible the diversion of San Joaquin River upstream at Friant Dam for delivery into the two East Side canals, enabling growers to invest heavily in permanent plantings of citrus, fruit and nut trees, and grapes.
FARMERS ARE ‘THE BIG LOSERS’
“It takes at least three to five years to produce anything at all from a new tree or vine, and recovering on the investment of those years takes many more,” Buckman said. “So when the trees die, farmers, their families and those they employ will be the big losers.”
Several communities, including Fresno, Orange Cove, Lindsay, Strathmore and Terra Bella also depend on Friant water for their municipal supplies.
“With so little water to go around due to the drought, every day that the water goes someplace else will create harm that cannot be repaired,” said Buckman.
‘TRIED FOR MONTHS’
General Manager Jacobsma said Friant water users “have tried for months to work with Reclamation and the state Department of Water Resources to improve water supply conditions for the Exchange Contractors and the Friant Division. We have made our concerns known but, even with the late season rain events, Reclamation would not take action to provide full substitute water to the Exchange Contractors.”
Instead, Jacobsma noted, Reclamation began releasing water from Friant Dam to supply the Exchange Contractors.
“That action is effectively taking all the Millerton Lake water supply that would otherwise been available to keep tens of thousands of acres of permanent plantings — primarily citrus — alive,” Jacobsma said. “We had no choice but to take legal action to protect the water rights of the Friant Division water contractors and the farms and communities supported by such water.”
There are three overall arguments in Friant’s case against the United States government:
• The first claim asks the court to confirm the rights under the Friant contracts with Reclamation. Under these contracts, Reclamation promised it would not deliver any water to the Exchange Contractors from Millerton Lake “unless and until required by the terms of” the Exchange Contract. Reclamation also promised that it would not “knowingly and voluntarily” make decisions that prevent it from supplying substitute water to the Exchange Contractors. Reclamation promised each of the Friant contractors that if there were water available — whether from the Sacramento River and its tributaries or the Delta — the federal agency would never make a voluntary choice not to supply it.
• The second claim is for violation of the Central Valley Project Improvement Act. The CVPIA provides for the Secretary of the Interior to enter into contracts with agencies administering wildlife refuges or entities that supply water to refuges. These include the Grassland Water District and Grassland Resource Conservation District, as well as the U.S. Fish and Wildlife Service. Water for these refuges is to come only from “Central Valley Project yield,” a statutory term defined as “delivery capability of the Central Valley Project . . . after . . . other flow and operational requirements imposed by terms and conditions existing in licenses, permits, and other agreements pertaining to the Central Valley Project under applicable state law existing at the time of enactment of this title have been met.” CVPIA § 3406(b)(2). In a series of prior court cases, the courts have already ruled that the amount of water necessary to provide to the Exchange Contractors as “substitute water” is not to be considered CVP yield under the CVPIA. Under the CVPIA, the marshes for migratory birds – ducks and geese – are thus to be supplied only after the Exchange Contractors’ substitute water requirements are first satisfied.
• The third claim is for violation of the 1902 Reclamation Act, under which the Bureau of Reclamation was established. That law requires the United States to follow state water rights law, including the “first in time, first in right” rule. Here, the United States holds senior water rights to the water collected from the Delta at the Tracy Pumping Plant. By providing the water to junior rights holders – the State Water Project, or the wildlife refuges – the United States is allowing junior water users to line-jump, in violation of California’s system of water rights priorities. Instead, the United States should be serving the priority rights of the Exchange Contractors with the water it obtained as a San Joaquin River exchange supply.