The Water Report: Water Rights, Water Quality and Water Solutions in the West Issue 17

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Issue #17 The Water Report Fish & Farms Reallocation NRDC V. Houston Injunction Standards Reasonableness Detailed Discovery Mitigation Issues the economy and population centers of this state have developed in reliance upon appropriated water, it would be disingenuous to hold that such appropriations are and have always been improper to the extent that they harm public trust uses and can be justified upon theories of reliance or estoppel." National Audubon Society, supra, 33 Cal. 3d at 446 Whether the Section 5937 flows that plaintiffs seek comply with the limitations imposed by Article X, Section 2 of the California Constitution, requires consideration of evidence relating to all aspects of the comparative unreasonableness and wastefulness of such flows, including evidence relating to the socioeconomic impacts resulting from the reallocation of this water. A consideration of the reasonableness of restoration of San Joaquin's historic fisheries is also required under the CVPIA. In NRDC v. Houston, 146 F.3d 1118 (9" Cir. 1998), the Ninth Circuit determined that the requirement of CVPIA Section 3406(c)(1) — that the restoration of fisheries below Friant Dam be "reasonable, prudent and feasible" — is a substantive standard. As applied to the operation of Friant Dam, that standard will preempt Section 5937 if it is not "reasonable, prudent and feasible" to release the amount of water required by Section 5937. The Houston court stated that: "There is no clear directive in the CVPIA which preempts the application of §5937 if the state law could be implemented in a way that is consistent with Congress' plan to develop and restore fisheries below the Friant dam in a manner that is "reasonable, prudent, and feasible." CVPIA, Pub. L. 102 -575, §3406(c), 1992 U.S.C.C.A.N. (106 Stat.) at 4721. The district court ... did not reach the issue of whether the actual application of §5937 is inconsistent with the CVPIA. It has yet to be determined how much water release would be required under §5937 and whether that would be consistent with the CVPIA. We remand these issues to the district court for a determination on the merits." Houston, 146 F.3d at 1132. Finally, a reasonableness balancing is required because Plaintiffs seek injunctive relief. An order compelling agency action is, in effect, a mandatory injunction. Firebaugh- Canal Co. v. United States, 203 F.3d 568, 577 (9th Cir. 2000). An injunction "is not a remedy which issues as of course [citation], or to restrain an act the injurious consequences of which are merely trifling. [citation.]" Weinberger v. Romero- Barcelo, 456 U.S. 305, 311 -312 (1982). The basis for injunctive relief in the federal courts is irreparable injury and the inadequacy of legal remedies. Id. at 312, citing Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 61 (1975); Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944). When opposing parties present competing claims of injury, "the traditional function of equity has been to arrive at a `nice adjustment and reconciliation' between the competing claims [citation]. In such cases, the court `balances the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction.' [citation.]" Weinberger, 456 U.S. at 312. Thus, whether under the California Constitution, the CVPIA, or traditional equitable principles, the remedies phase of this case must account for reasonableness. In an order issued on June 9, 2005, the court concluded that "it is appropriate to leave the question of consistency [with CVPIA] open until the point that the Secretary formally prepares a plan, if one is ever prepared." (NRDC v. Rodgers, Order, June 9, 2005, Docket No. 1127, Case No. Civ. 5 -88 -1658 LKK, at p. 8.) The court further explained, however, that "although I decline to decide if the plan is inconsistent with §5937 without an actual plan to work with, it does not follow that the parties cannot present evidence on what is reasonable and feasible during the remedies phase." (Id. at p. 9.) The Reasonableness Component Will Require Wide - Ranging Discovery Given that the remedies phase of the trial will address the reasonableness of restoration of historic fisheries, the parties will have to engage in wide - ranging and highly technical discovery. For example, the parties will have to discover any evidence relating to whether the water that plaintiffs contend must be released to support fish flows will take water away from the amount that is now available for appropriation. Similarly, discovery will have to uncover how much water would be lost to those dependent on water deliveries from Friant Dam, and who will suffer these losses. Any mitigation of those losses is also an open question. For example, do the plaintiffs contend that the losses can be made up in whole or in part by some kind of mitigation measures? Can mitigation be implemented? What is the cost? Will plaintiffs dispute the claims of loss suffered by those who depend on Friant Dam for their water supply? How much agricultural production do plaintiffs contend will be lost? How many people do plaintiffs contend will lose their jobs? How many people will lose their farms? How will public health and safety be impacted in those cities and towns that are dependent upon this water supply? What effect do plaintiffs contend the fish flow releases will have on the groundwater table? Will we see the return of the massive groundwater overdrafts that existed before the Friant Division was built? 20 Copyright© 2005 Envirotech Publications; Reproduction without permission strictly prohibited.