Groups Sue State to Protect the Delta's Public Trust Resources

Groups Sue State to Protect the Delta's Public Trust Resources
by Dan Bacher

(September 7) The California Water Impact Network (C-WIN), the California Sportfishing Protection Alliance (CSPA) and AquAlliance filed a landmark public trust lawsuit in Sacramento County Superior Court to protect Delta fisheries and water quality from excessive Delta pumping.

The groups filed the suit against the State Water Resources Control Board (SWRCB) and the California Department of Water Resources (DWR) for multiple violations of the laws protecting public trust resources of the Sacramento-San Joaquin River Delta.

The causes of action are: 1) violation of the public trust, 2) unreasonable method of diversion, 3) unreasonable use of water, 4) violation of Porter-Cologne Act, 5) violation of the 1995 Water quality Control Plan narrative standard for fish and wildlife and 6) violation of SWRCB Decision 1641.

The lawsuit asks the court to declare that: 1) the SWRCB and DWR have failed to enforce and violated each of the causes of action, 2) enjoin DWR from diverting water from the Delta and the SWRCB from allowing operation of the State Water Project until they have complied with the law, 3) direct the defendants to remedy their violations of law within a reasonable time and 4) retain jurisdiction until the defendants have complied with the law.

"This action is a companion or bookend to our 'Chinatown II' lawsuits over the Monterey Plus Agreement, which facilitated dramatically increased exports from the Delta, and the illegal transfer of the Kern Water Bank from public to private hands," said Bill Jennings, Chairman and Executive Director of the California Sportfishing Protection Alliance (CSPA).

Jennings said this lawsuit is another element in the long-term CSPA/CWIN/AquAlliance strategy for protecting the Delta estuary and reversing the "illegal and corrupt subversion" of California water rights and theft of public trust resources by corporate land barons and low priority water rights holders.

"These illegal actions have resulted in vast profits, secured by greed and corruption, and brought one of the great estuaries in the world to the brink of destruction," emphasized Jennings.

The Schwarzenegger administration has presided over the unprecedented collapse of Central Valley salmon, Delta smelt, longfin smelt, young striped bass, green sturgeon and other species. Record water exports out of the Delta to corporate agribusiness and southern California from 2004 to 2006, combined with declining water quality under the Schwarzenegger administration, spurred the species decline.

Rather than working to restore these species as required under state and federal laws, Schwarzenegger has declared war on salmon and salmon fishermen. He has repeatedly attacked the federal biological opinions protecting Central Valley salmon and steelhead and Delta smelt while campaigning for a peripheral canal and new dams to facilitate water exports to junior water rights holders and southern California.

“Our state government continues to turn a blind eye to the public trust and the State constitution,” said Carolee Krieger, president and executive director of C-WIN. “We have no choice but to petition the court to force the State Water Board and DWR to comply with State water laws and the State constitution.”

“We must stop the carnage in the Delta now,” added Krieger. “Our state government has utterly failed to enforce the public trust and follow the California constitution. It will take lots of people all over California to protect the Delta’s public trust resources as was done for Mono Lake."

The California Sportfishing Protection Alliance (CSPA), California Water Impact Network (C-WIN) and AquAlliance are three great organizations that are battling to restore our fisheries and defend the public trust. Everybody who cares about the future of the Delta and California's fish populations should support their lawsuit.

Below is their joint press release:

Press Release: September 7, 2010

Contacts: Michael Jackson, Attorney for Plaintiffs (530) 283-0712, (530) 927-7387 (cell)
Carolee Krieger, C-WIN (805) 969-0824
Bill Jennings, CSPA (209) 464-5067, (209) 938-9053 (cell)
Barbara Vlamis, AquAlliance (530) 895-9420, (530) 519-7468 (cell)

C-WIN, CSPA & AquAlliance File Comprehensive Lawsuit to
Protect Delta Public Trust Fisheries by Enforcing State Water Laws

The California Water Impact Network (C-WIN), the California Sportfishing Protection Alliance (CSPA)
and AquAlliance filed a public trust lawsuit in Sacramento County Superior Court to protect Delta
fisheries and water quality from excessive Delta pumping.

“The voters of California passed a constitutional amendment in 1928 to ban wasteful water use and
harmful diversions from streams,” said attorney Michael Jackson of Quincy who represents C-WIN,
CSPA and AquAlliance in this case. “We intend to show the court how DWR and the State Water Board
have not complied time and time again, and to persuade the court to end DWR’s illegal and excessive
water exports from the Delta.”

“We can no longer stand by while the State Water Board gives a wink and a nod to DWR’s illegal Delta
pumping,” added Jackson. “If we don’t act immediately, our historic salmon runs will be lost forever.”
The lawsuit charges that the State Water Resources Control Board (SWRCB) and the California
Department of Water Resources (DWR):

• Fail to protect public trust fishery resources
• Divert water from the Delta wastefully and unreasonably
• Use water from the Delta wastefully and unreasonably
• Fail to enforce and comply with the State’s water quality laws
• Fail to enforce and comply with the flow and water quality requirements of SWRCB’s water rights
decision 1641, adopted 10 years ago
• Fail to comply with the narrative fish doubling standard in the SWRCB’s 1995 Water Quality
Control Plan

Specifically, the six-count lawsuit charges that the huge state export pumps near Tracy in the south Delta
kill thousands upon thousands of Delta smelt, young salmon and other species every year, at different
times of year, and are the main threats to public trust resources in the Delta. Even a recent Delta flow
report adopted by the State Water Board acknowledged that more fresh water flows into and out of the
Delta to the Bay are needed for fish and other species to recover.

“California’s regulation of its public trust resources and water quality is remarkably similar to federal
regulation of the financial and real estate markets. Regulators in both cases went AWOL. The public is
left with collapsed fisheries, bankrupt aquatic ecosystems and toxic waters for the taxpayers to clean up”
said CSPA Chairman and Director Bill Jennings. “The complete failure of the State Water Resources
Control Board to enforce its own laws, regulations and decisions has left us with no alternative but to turn
to the courts to prevent the total loss of our historic fisheries.”

“The State Water Board consistently submits to political pressure to avoid enforcing the law” added
Jennings. “They make their decisions based on politics, not science and law.”

“This is the Delta watershed’s version of the Mono Lake case of the 1970s and 1980s,” said Barbara
Vlamis, Executive Director of AquAlliance in Chico. “These two state agencies charged with protecting
California’s public trust resources must be forced to comply with the law. They have consistently
demonstrated that they are incapable of enforcing existing law and protecting the public trust.”

DWR increased its water exports since 2000 by 53% over the average of 2.1 million acre-feet it exported
in the decade of the 1990s. Meanwhile, Delta fish populations of salmon, striped bass, Delta smelt, and
other listed and unlisted species collapsed, despite runoff in 2006 reaching 173% of normal.

Much of the increase in exported water is labeled as “excess” by DWR and exported from the Delta as
“surplus” under Article 21 of the amended State Water Project contracts, and is largely used to further
development, water banking, and water transfers. The plaintiffs recently filed a separate lawsuit
challenging the State Water Project contracts known as “Monterey Plus Agreements.”

“Our state government continues to turn a blind eye to the public trust and the State constitution,” said
Carolee Krieger, president and executive director of C-WIN. “We have no choice but to petition the court
to force the State Water Board and DWR to comply with State water laws and the State constitution.”

“We must stop the carnage in the Delta now,” added Krieger. “Our state government has utterly failed to
enforce the public trust and follow the California constitution. It will take lots of people all over California
to protect the Delta’s public trust resources as was done for Mono Lake."

###
For more information on the lawsuit, see
http://www.c-win.org/press-room-delta-public-trust-lawsuit.html and
http://www.aqualliance.net/pressroom.html

The California Water Impact Network promotes the equitable and environmental use of California's
water, including instream uses, through research, planning, public education, and litigation.
http://www.c-win.org

California Sportfishing Protection Alliance is a nonprofit conservation and research organization
established in 1983 for the purpose of conserving, restoring, and enhancing the state's water quality and
fishery resources and their aquatic and riparian ecosystems. http://www.calsport.org

AquAlliance was founded in 2010 to protect waters in the northern Sacramento River’s watershed to
sustain family farms, communities, creeks and river, native flora and fauna, vernal pools, and recreation.
http://www.aqualliance.net.