The Center and our allies have filed two lawsuits over the Monterey Plus Amendments and the Kern Water Bank. The first lawsuit was filed in June 2010 under the California Environmental Quality Act, the California Constitution and other laws. It includes what's known as a “reverse validation action,” which offers California citizens a way to challenge the legality of contracts made by the state. Filed in Sacramento, this suit names the Department of Water Resources as defendants/respondents and names the Kern County Water Agency as respondents. The Center's second lawsuit, filed in July 2010 in Kern County, is mainly a reverse validation action against the Kern County Water Agency for its role in the transfer of the Kern Water Bank to the privately controlled Kern Water Bank Authority.
The Center's lawsuits assert that the Department's environmental impact report was deficient and failed to provide (1) an adequate project description, (2) adequate disclosure of project impacts, (3) an accurate description of the environmental conditions that would exist without the Monterey Plus Amendments, (4) evaluation of feasible alternatives, (5) suggestions of meaningful measures to reduce project impacts on the environment, (6) an acceptable response to public comments, or (7) substantial evidence to support the Department's conclusions that the project wouldn't significantly affect the environment or California ratepayers.
Our suits ask the court to strike down approval of the Monterey Plus Amendments and the environmental impact report and suspend all activities pursuant to the project until the Department has complied with all requirements of the California Environmental Quality Act and other applicable laws. They also ask the court to void the Kern Water Bank Exchange Agreement as an unconstitutional gift of a public asset and seek a return to state ownership of the Kern Water Bank, a return of all ill-gotten gains from private use of the Kern Water Bank, and a prohibition of the Kern Water Bank Authority's use of the water bank.
Specifically, the Center's lawsuits seek to vacate:
1. Article 18(a) of the Monterey Plus Amendments.
The original Article 18(a) required that, in times of drought, deliveries to agricultural users would be reduced before deliveries to urban users would be cut. This was known as the “urban preference.” As a matter of state policy and the California Water Code, during shortages, drinking water for people and water supplies for most of California's industrial economy was superior to water used to grow surplus nonfood crops in the desert. The Monterey Plus Amendments change that to ensure that agricultural contractors, representing a small fraction of the California economy, would receive as much water during droughts as the South Coast, which comprises more than half of the state's population and economy.
For urban Southern California, this change results in serious water shortages and increased water rates. Our lawsuits seek to vacate the revised Article 18(a) and to reestablish the urban preference to protect people and California's economy during our recurring droughts.
2. Article 18(b) of the Monterey Plus Amendments.
The State Water Project was planned to deliver supplies of as many as 4.23 million acre-feet of water, much of it imported from North Coast streams (the Eel, Van Duzen, Klamath and Smith rivers). These rivers were declared wild and scenic in the 1970s and off limits to the State Water Project. As a result, the State Water Project was only partially built and has only been able to reliably deliver less than half the originally promised, contracted amounts of water. The original Article 18(b) provided for a permanent reduction in water deliveries in the event the entire State Water Project was not fully built out. Even though the Project has never been completed, the Monterey Plus Amendments eliminate this provision, thus allowing water contractors to continue to include and rely upon “paper water” — water that can never realistically be delivered — in their contracts.
This change results in a reliance on interruptible paper water for permanent crops and urban expansion. Our suits seek to reverse the modified Article 18(b) in order to enable the state to balance demand with reliable water yields.
3. Article 21 of the Monterey Plus Amendments.
The original Article 21 addressed the sale of “surplus” water and prohibited the delivery of such water for purposes that would require a reliable and sustained delivery of water such as to homes, factories, businesses and permanent crops. The Monterey Plus Amendments eliminate these restrictions and have made available the delivery of “interruptible water” to permanent development whenever the normal supplies had been made. This not only eliminates the safeguard against establishing economies based on unreliable water supplies — it also allows the massive increase in State Water Project Delta export pumping after 2000, triggering the collapse of Delta fisheries. For example, State Water Project exports increased from an average of 993,686 acre-feet in the 1970s to 1,925,758 acre-feet in the 1980s to 2,011,369 acre-feet in the 1990s to a whopping 3,078,838 between 2000 and 2006.
The Metropolitan Water District of Southern California, the water supplier to agencies throughout the South Coast, gambled when it gave up its “urban preference” in hopes of securing even larger amounts of “surplus” water. In wetter years, the District was successful, but it never received more than 200,000 acre-feet from Article 21 in a single year, whereas in 2005, agricultural contractors received 531,000 acre-feet through Article 21. These deliveries of “surplus” water triggered Delta fisheries declines. Subsequent federal biological opinions under the Endangered Species Act to protect salmon, steelhead and Delta smelt, as well as court rulings on those biological opinions slammed the door on this gambit. Consequently, during the last drought, the District and its customer agencies were faced with water shortages and had to increase rates for water it delivered, which were in turn passed on to consumers and ratepayers.
These increased exports from the Delta estuary during critical periods wreaked havoc on endangered fish species and California's commercially valuable fall Chinook salmon runs. They also increased dependence upon interruptible water supplies. The lawsuit seeks to void the revised Article 21 and limit the use of interruptible sources of water to purposes that can withstand inevitable water shortages.
4. Transfer of the Kern Water Bank.
In 1987, the District established the Kern Water Bank as a “State Water Project conservation facility” that was integrated into the overall State Water Project operations as part of the State Water Resource Development System. In 1995, the California Department of Water Resources transferred ownership — on an interim basis, pending final approval of the first Monterey Amendments — of the Kern Water Bank to agricultural contractors, including the Kern County Water Agency, in exchange for 45,000 acre-feet of paper water — i.e., water that the Kern County Water Agency had never received and for which the agency was required to pay as part of State Water Project construction. In other words, the Kern County Water Agency received property worth many millions of dollars in exchange for something it had never received and which reduced the agency's payments to the State Water Project at the same time. The very next day, the Kern County Water Agency transferred ownership in the water bank to the Kern Water Bank Authority, a privately controlled joint powers authority. Although still operated by the Kern Water Bank Authority, this transfer is subject to final approval of the Monterey Plus Amendments.
The transfer of the Kern Water Bank to private parties violated the California Constitution and Water Code, among other provisions that prohibit the gift of state assets to private parties. The Center's lawsuit aims to void the transfer and recover all ill-gotten profits from the private use of public assets.