On September 9, 2015, the U.S. Army Corps of Engineers, Sacramento District, (Corps) issued a notice seeking comment on the permit application filed by California Department of Water Resources (DWR) for the California WaterFix project.  The Corps issues permits under Section 10 of the Rivers and Harbors Act of 1899 for projects affecting navigable waterways, and permits under Section 404 of the Clean Water Act for the discharge of fill material into waters of the United States.  DWR’s application describes the proposed conveyance structures and the wetland acreage that will be permanently or temporarily affected by the fill material resulting from the tunneling operations and the construction and expansion of the forebays.  The application also explains that the Partially Recirculated Draft Environmental Impact Report/Supplemental Draft Environmental Impact Statement (Draft EIR/EIS) posted in July 2015, and Appendix E in particular, provides the necessary information and analysis for the Corps’ permitting process and requirements.  Written comments on DWR’s permit application must be submitted to the Corps by November 8, 2015.

On August 25, 2015, DWR and the Bureau of Reclamation (Reclamation) filed a petition for change with the State Water Resources Control Board (State Board) to modify the water rights for the State Water Project and Central Valley Project affected by the California WaterFix project.  DWR and Reclamation are requesting modifications to add points of diversion and rediversion to allow for the intake and conveyance of water through the proposed facilities.  The State Board, in deciding whether to approve the petition, will have to evaluate the factors under the California Water Code, including whether the change will operate to the injury of other legal users of the water.  Once the State Board issues a public notice of the petition, interested parties may file a protest.  The State Board will likely schedule a hearing on the petition before it issues a decision.  DWR and Reclamation requested that this hearing be scheduled within seven months of the filing of the petition.

As mentioned above, the permit application before the Corps and the petition for change before the State Board rely on the recirculated environmental documents for the Bay Delta Conservation Plan/California WaterFix project.  Comments on the Draft EIR/EIS must be submitted by October 30, 2015.

For more information on these regulatory processes, please contact Brittany Lewis-Roberts at blewis-roberts@somachlaw.com.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.