[env-trinity] Orland Press-Register: Canal authority loses water rights case
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Wed Jul 10 11:48:40 PDT 2013
Canal authority loses water rights case
Tuesday, Jul 9 2013, 6:54 pm
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By Julie R. Johnson/Tri-County Newspapers
Tehama-Colusa Canal Authority has lost a critical court case heard by the federal 9th Circuit Court of Appeals concerning the area of origin water rights.
The TC authority was fighting for priority of water allocations in dry years over exports to Central Valley Project contractors located south of the Sacramento-San Joaquin Delta.
A joint powers authority comprised of 17 water agency members headquartered in Willows, the canal authority initiated the action against federal and state water agencies, maintaining the U.S. Bureau of Reclamation's operation of the Central Valley Project failed to comply with state law protections of the Sacramento Valley watershed by exporting water outside that watershed without first satisfying the needs within the area of origin.
"The Bureau of Reclamation has broken its promise to protect first priority of water usage to our area of origin water storage," said Jeffrey Sutton, general manager of the Tehama-Colusa Canal Authority. "We are very disappointed, and in fact, taken aback by this ruling."
The appeal came as a result of District Court Judge Oliver Wanger's ruling that northern service contractors of the Central Valley Project are not entitled to a priority of water allocations in drought years over southern contractors.
Wanger is based in Fresno.
In its opinion filed July 1, the Court of Appeals agreed with Wanger, stating California's water code does not require the Bureau of Reclamation to provide Central Valley Project contractors priority water rights because the contract between the canal authority and the bureau "contained provisions that specifically addressed allocation of water during shortage periods."
The two drought years at issue in this case are 2008 and 2009.
In 2008, the Tehama-Colusa Canal Authority and other north-of-Delta water service contractors received 100 percent of their contractual water allocations from the bureau. South-of-Delta contractors received 50 percent of their allocations.
In 2009, when the governor declared a state of emergency because of the drought, canal authority and other north-of-Delta contractors received 40 percent of their allocations, while south-of-Delta contractors received 10 percent, the Court of Appeals stated.
The appellate court declared that while it is undisputed that the bureau's appropriation of water for the Central Valley Project is subject to the area of origin statutes, there is an important distinction "that while the area of origin statutes help to determine the total quantity of water available to the Bureau for allocation, those statutes in no way control how the water is allocated by the Bureau once acquired."
During a hearing before Wanger, the canal authority argued that a 2006 ruling of the California Court of Appeals gave its members a clear right to receive their Central Valley Project water supplies in dry years before any water is exported to Central Valley Project contractors south of the Delta.
The 2006 court case was the first ever on state laws intended to protect watersheds of origin from being drained by Central Valley Project exports.
"The federal court failed to uphold California's historic area of origin protections, which the state courts and regulatory agency say should assure (Tehama-Colusa Canal Authority's) rights to be protected from exports of Central Valley Project water needed in our own area," said Sutton.
He said the canal authority office and its board of directors are reviewing the ruling and considering available options.
"The board will meet and decide what direction we will go from here," Sutton said.
He believes this outcome has caused a great disconnect between state and federal laws that apply to water allocations.
"I feel state laws have legal precedent and are firmly establish and very clear concerning area of origin water rights," Sutton said. "This ruling undermines that long standing."
In 1933, the California Legislature passed a law specifically directed at the Central Valley Project that prohibits depriving any watershed of water that is required to adequately supply the beneficial needs of watershed users.
According to the canal authority, the federal government has for years, and continues to ignore that legal obligation.
The canal authority's membership delivers Central Valley Project water to about 150,000 acres of farmland in Tehama, Glenn, Colusa and Yolo counties, which according to some studies, contribute about $1 billion in farm production to the region.
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