Westlands Drainage Settlement: A Primer

Westlands Drainage Settlement: A Primer

June 25, 2015
Westlands Drainage Settlement: A Primer
Background
Firebaugh Canal/Sumner Peck Ranch
Litigation
The Westlands Water District provides water to users in the
Western San Joaquin Valley. It is located within the San
After Reclamation closed Kesterson Reservoir and the
Luis Unit of the U.S. Bureau of Reclamation’s
interceptor drain, in Firebaugh Canal Co. v. United States,
(“Reclamation”) Central Valley Project. In its initial
No. CV-F-88-634 (E.D. Cal.), and Sumner Peck Ranch, Inc.
feasibility report for the San Luis Unit, Reclamation
v. Bureau of Reclamation, No. CV-F-91-048, landowners,
indicated that drainage facilities would be required to carry
from both within and without the San Luis Unit, filed suit
away waste irrigation water in order to prevent salt
against Reclamation (Westlands is both a co-defendant and
accumulations that would render the soil unfit for irrigation.
a cross-claimant against Reclamation) to force Reclamation
For that reason, the San Luis Act, P.L. 86-488, 74 Stat. 156
to complete a master drain to the Bay-Delta, as envisioned
(1960), which authorized the creation of the San Luis Unit,
in Reclamation’s original feasibility study, among other
prohibited Reclamation from commencing construction of
reasons. In 1995, the United States District Court for the
the San Luis Unit until it either received assurances from
Eastern District of California found that the San Luis Act
the state of California that it would provide a master
required Reclamation to provide drainage to the San Luis
drainage outlet for the San Joaquin Valley or Reclamation
Unit, and that the appropriations riders had not relieved it of
had provided for the construction of an “interceptor drain”
this duty. The district court therefore ordered Reclamation
(as described in Reclamation’s feasibility study) that would
to obtain a discharge permit from the California Water
meet the drainage requirements of the San Luis Unit. After
Resources Control Board in order to complete the
the state of California notified Reclamation that it would
interceptor.
not provide a master drain for the San Joaquin Valley,
Reclamation informed Congress that it would make
In 2000, the United States Court of Appeals for the Ninth
provision for the construction of the San Luis interceptor
Circuit affirmed the district court’s finding that the San
drain.
Luis Act required Reclamation to provide drainage within
the San Luis Unit, and that it had failed to comply with this
Reclamation began delivering water to Westlands Water
duty since it plugged and closed the interceptor drain in
District (“Westlands”) in 1967, but construction of the
1986. However, the Ninth Circuit concluded that
interceptor drain did not begin until 1968. Between 1968
subsequent acts of Congress had granted Reclamation
and 1975, Reclamation constructed over 80 miles of the
discretion in how it would comply with this duty other than
planned 207 miles of the interceptor drain before halting
through the interceptor drain envisioned in the original
construction of the interceptor drain, citing public concerns.
feasibility study. For that reason, the court concluded, the
Firebaugh Canal Co. v. United States, 203 F.3d 568, 571
district court had overstepped its authority when it required
(9th Cir. 2000). The interceptor drain originally was
Reclamation to apply for a discharge permit to complete the
intended to end at the confluence of the Sacramento and
interceptor drain.
San Joaquin Rivers Delta with San Francisco Bay (“Bay-
Delta”) near Contra Costa, but in 1975 it reached only to
The Westlands Settlement Agreement
the Kesterson Reservoir, which originally was meant to
serve as a regulating reservoir. However, beginning in
Following the Ninth Circuit’s decision, the district court
1964, riders to appropriations legislation prohibited
ordered Reclamation to develop a detailed plan of action for
Reclamation from selecting a terminus for the interceptor
complying with the San Luis Act. In April 2001,
drain until it and the state of California had established
Reclamation submitted its initial plan of action, which
water quality standards for discharge of the drainage water.
called for an analysis of feasible alternatives for providing
As of 1975, no such standards had been established. Thus,
drainage within the San Luis Unit. From these analyses,
when Reclamation halted construction, Kesterson Reservoir
Reclamation developed three categories of drainage service
served as a temporary terminus for the drain.
methods: (1) in-valley alternatives; (2) out-of-valley
alternatives; and (3) beneficial use alternatives. Although
In 1983, studies revealed embryo deformity and mortality
Reclamation identified several variations within each of
among waterfowl nesting at Kesterson Reservoir. It was
these alternatives, generally the in-valley alternatives
suspected that these problems were caused by selenium
focused on options that would dispose of the drainage water
from soils in Westlands that had been carried to Kesterson
within the San Joaquin Valley, the out-of-valley alternatives
Reservoir through the drain. For that reason, in 1985,
involved disposal of drainage water in the Pacific Ocean
Reclamation announced that it would close Kesterson
and/or the Bay-Delta, and the beneficial use alternatives
Reservoir, and by June 1986 it had plugged the drains in
would employ reverse osmosis technology to clean the
Westlands and closed the interceptor drain. Since then,
drainage water, after which the clean water and possibly the
Reclamation has not provided any drainage in Westlands.
salts removed from the drainage would be put to beneficial
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Westlands Drainage Settlement: A Primer
use. Following several years of planning reports and
5. Reclamation would convert Westlands’ water
environmental analyses, in March 2007 Reclamation issued
service contract to a repayment contract;
a Record of Decision (ROD), in which it selected an option
6. Reclamation would be allowed to enter into a
that would involve a combination of in-valley disposal and
water service contract for delivery of water to
land retirement (i.e., removal of certain land from
Lemoore Naval Air Station;
agricultural use). In a March 2008 feasibility study,
Reclamation estimated that the total cost of construction of
7. Westlands’ water deliveries would be capped at
the drainage plan selected in the ROD would come to $2.69
75% of the amount allowed under existing
billion. The feasibility study also identified several
contracts;
legislative changes that would be necessary to construct the
8. Westlands would permanently retire 100,000
drainage plan selected by the ROD. These changes included
acres of lands in its service area, including land
an increase in appropriations authority, which at that time
that it had acquired through prior settlements, and
was limited to $429 million for construction of the drainage
that these lands would be used for management of
system. Additionally, the feasibility study determined that
drain water, renewable energy projects, habitat
Reclamation would need to seek legislative authorization to
restoration projects, or other purposes approved
charge water districts less than the full capital, operation,
by Reclamation;
and maintenance costs associated with the ROD drainage
9. Westlands would indemnify Reclamation against
plan, which otherwise would be required by law, as the
any takings claims by individual landowners
feasibility study found that the districts would not be able to
based on Reclamation’s alleged failure to provide
pay these costs in full. Reclamation submitted the
drainage; and
feasibility study to Congress in July 2008.
10. Westlands would intervene in Etchegoinberry v.
United States, No. 11-564-L (Fed. Cl.), for
Although no legislation has been passed to increase
purposes of settlement, and Westlands would be
Reclamation’s construction authorization or to relieve the
responsible for any compensation due to
water districts of their full payment obligations under
landowners within its service area (this litigation
existing law, Reclamation has proceeded with some
involves takings claims based on alleged damage
portions of the ROD drainage plan. For instance, according
to property caused by the lack of drainage in the
to an April 2015 status report filed with the district court,
San Luis Unit).
Reclamation has constructed a demonstration treatment
plant in the northern portion of the San Luis Unit, which
The Principles of Agreement provide that points 1-6 listed
began test operations in 2014 (although testing later was
above would be included in enabling legislation (upon
suspended due to problems with certain parts of the
which, presumably, any settlement would be contingent).
bioreactor at the plant).
However, it is unclear which, if any, of the points listed
above are in the draft settlement agreement under review by
In April 2015, Reclamation informed the district court that
the Department of Justice.
it and Westlands had completed a draft settlement
agreement, which had been submitted to the Department of
Issues for Congress
Justice for review. Reclamation did not provide the court
with any specifics; however, a document dated December 6,
As outlined in the Principles of Agreement, it is possible
2013, titled “Principles of Agreement for a Proposed
that some of the identified actions may require
Settlement between the United States and Westlands Water
congressional authorization. Additionally, the $2.69 billion
District Regarding Drainage” (“Principles of Agreement”),
cost for the drainage plan selected in the 2008 ROD was of
purports to lay out several provisions that Reclamation may
concern to many observers at the time and, in part, has led
intend to include in the draft agreement currently under
to the ongoing negotiations. If a settlement agreement is
review (it appears that Reclamation was involved in
not reached, Congress may be faced with the decision of
drafting the Principles of Agreement). Among other things,
whether to appropriate significant funding for a drainage
the Principles of Agreement provide the following:
solution.
1. Congress would amend the San Luis Act to
relieve Reclamation of its obligations to provide
Contrariwise, Congress could relieve Reclamation of its
drainage in the San Luis Unit;
obligation under the San Luis Act to provide drainage by
2. Westlands would assume legal responsibility for
amending the act itself. However, if Congress were to do
management of drainage water for lands in its
so, additional questions would remain regarding
boundaries;
Reclamation’s obligations under existing contracts, as well
3. Reclamation would relieve Westlands of its
as its liability to landowners for possible takings.
existing capital repayment obligations;
Travis H. Mallen, tmallen@crs.loc.gov, 7-0796
4. Landowners within the Westlands Water District

would be exempt from the Reclamation Reform
Act’s (P.L. 97-293, 96 Stat. 1263 (1982)) acreage
IF10245
restrictions and full-cost pricing provisions;
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