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January 13, 2016  |  Written by Richard S. Deitchman

Protests and Appearances Filed on California WaterFix’s Water Rights Change Petition

On January 5, 2016, the deadline passed for persons to file protests to proposed changes in water rights of the California Department of Water Resources (DWR) and the United States Bureau of Reclamation (Reclamation) associated with the California WaterFix Project (WaterFix). DWR and Reclamation have petitioned the State Water Resources Control Board (State Board) to add three new points of diversion and/or rediversion on the lower Sacramento River to specified water rights permits for the State Water Project and the Central Valley Project. The changes support implementation of the proposed WaterFix project, including three new water diversion intakes and two 30-mile long, 40-foot diameter tunnels to convey water under the Sacramento-San Joaquin Delta. Construction of WaterFix requires multi-jurisdictional approvals for environmental, water, and other impacts. The water rights change petition relates to necessary modification in the water rights permits of DWR and Reclamation, as those permits do not presently allow diversion or rediversion at the WaterFix proposed intakes.

To approve the joint petition, DWR and Reclamation will need to (1) establish that approval will neither effectively initiate a new water right nor injure any other legal user of water, (2) provide information regarding fish and wildlife impacts of the proposed water rights change, and (3) identify methods to protect fish and wildlife from any impacts of the proposed water rights change.

Although not yet publicly available, the protests and notices of appearances are expected to be numerous and embrace both traditional water rights issues and other public interest considerations. Protestants include water users, local public agencies, environmental groups, and others. The protests attack the petition on the above grounds, including injury to the protestants’ legal rights to use water and petitioners’ failure to mitigate impacts to fish and wildlife. Potential water rights impacts include the impact on surface water availability and quality, and interconnected groundwater supplies. Individual protests include numerous proposed witnesses to testify at the hearing. The scope of the hearing will be enormous. It will proceed in two “parts”, with the first part focusing on protests asserting injury to lawful users of water. The second part is planned to occur only after completion of the California Environmental Quality Act, California Endangered Species Act, and federal Endangered Species Act processes. Part 2 will address potential effects of the change petition on fish and wildlife and recreational uses.

The State Board will hold a pre-hearing conference on January 28, 2016. The purpose of the pre-hearing conference is to encourage coordination among participants and to develop presentation schedules for the hearing. Proposed testimony, witness qualifications, and exhibits are due on March 1, 2016. The part 1 hearing will commence on April 7, 2016.

For more information on WaterFix and the water rights change petition process, please contact Rich Deitchman at (916) 446-7979 or rdeitchman@somachlaw.com.

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