1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA,, No. 2:19-cv-000547-DAD-EPG 12 Plaintiff, 13 v. ORDER GRANTING MOTION TO FILE

AMICUS BRIEF AND PERMITTING THE

14 STATE WATER RESOURCES FILING OF A RESPONSE

CONTROL BOARD & STATE WATER

15 RESOURCES CONTROL BOARD (Doc. No. 41) CHAIR E. JOAQUIN ESOUIVEL, in his 16 official capacity, TWENTY-ONE DAY DEADLINE 17 Defendants. 18 19 On March 28, 2019, Plaintiff United States of America, at the request of the United States 20 Department of the Interior through its Bureau of Reclamation (“Reclamation”), filed two similar 21 lawsuits, one in Sacramento County Superior Court, the other in this court, concerning 22 amendments adopted by Defendant State Water Resources Control Board (“State Water Board” 23 or “the Board”) to the Water Quality Control Plan for the San Francisco Bay/Sacramento-San 24 Joaquin Delta Estuary (“Bay-Delta Plan Amendments,” “Amendments,” or “Amended Plan”). 25 (See Doc. Nos. 1; 18-6.) 26 For purposes of the instant order, the undersigned adopts the previously assigned district 27 judge’s summary of the factual background as follows: 28 ///// 1 The history of regulation and litigation of issues related to the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (“Bay-Delta”) 2 is long, wide, and deep. Without question, the Bay-Delta itself is a critically important natural resource that is both the hub of 3 California’s water supply and a vital estuary and wetland supporting numerous beneficial uses. Central to the present dispute is the fact 4 that the State Water Board holds authority under California’s Porter- Cologne Water Quality Control Act, Cal. Water Code § 13000, et 5 seq., to adopt water quality control plans to protect the waters of California. The Board adopted its original Water Quality Control 6 Plan for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (“Bay-Delta Plan”) in 1978, and amended that plan in 1991, 7 1995, and 2006. The most recent effort to amend the Bay-Delta Plan began in 2009, and, over a nine-year period, the Board considered 8 various amendments and prepared environmental documentation analyzing the potential environmental impacts of the Bay Delta Plan 9 Amendments under [the California Environmental Quality Act (“CEQA”)]. 10 The Board held numerous publicly-noticed meetings and reviewed 11 thousands of comments regarding the proposed Amendments and related drafts of the Substitute Environmental Document (“SED”) 12 prepared in accordance with CEQA. On December 12, 2018, the Board adopted the SED and Amended Plan. 13 In general, the Amendments are designed to accomplish several 14 goals relevant to this case. First, they increase the flows required to be left in the three main salmon-bearing tributaries to the San Joaquin 15 River (the Stanislaus, Tuolumne, and Merced Rivers) during critical months (February through June). These flow increases are designed 16 to improve spawning, rearing, and migratory habitat conditions in the Lower San Joaquin River. The Board plans to implement the flow 17 objectives “adaptively,” within broad constraints, to adjust timing and flow patterns to better balance multiple beneficial uses when 18 scientific information indicates doing so is appropriate. 19 Second, the Amendments provide that the Board will include minimum reservoir carryover storage targets or other requirements 20 to ensure that providing the flows to meet the objectives will not have adverse temperature or other impacts on fish and wildlife. 21 Third, the Amendments revise southern Delta salinity objectives for 22 agriculture by adjusting the salinity requirements/restrictions to a slightly higher level, ostensibly to reflect updated scientific 23 knowledge of southern Delta salt levels that reasonably protect agriculture. More specifically, the Amended Plan revises the salinity 24 objective for agricultural beneficial uses by increasing the April through August salinity objective from a mean daily electrical 25 conductivity (“EC”) of 0.7 deciSiemens per meter (“dS/m”) to 1.0 dS/m, resulting in a 1.0 dS/m salinity objective for the four 26 compliance locations year-round. 27 Reclamation’s existing [state-issued] water rights [permits] to operate the federal Central Valley Project (“CVP”), including its 28 permits to operate the New Melones Project, a component of the 1 CVP, currently require Reclamation to meet the [pre-]existing salinity objective of 0.7 dS/m at these locations. The Amended Plan 2 proposes to implement the [revised] salinity objective for the interior southern Delta by requiring Reclamation to continue operating to 3 meet the 0.7 dS/m salinity limit at Vernalis as required by its existing water rights. The Amended Plan also proposes to implement the 4 salinity objective through increased inflows provided by application of flow-based (as opposed to salinity-based) objectives for the Lower 5 San Joaquin River. 6 (Doc. No. 28 at 2-4) (citations omitted) (emphasis in original). In sum, the Amended plan relaxes 7 the salinity limits in the southern Delta, but nonetheless appears to require Reclamation to operate 8 as though the salinity limits have not been relaxed. 9 The First Amended Complaint (“FAC”) in this (the federal) action raised three causes of 10 action under CEQA, California Public Resources Code §§ 21000 et seq.,–(1) failure to provide an 11 accurate, stable, and finite project description; (2) improper compression of impacts and 12 mitigation; and (3) failure to adequately evaluate impacts–along with (4) a cause of action based 13 upon the federal constitutional intergovernmental immunity (“IGI”) doctrine. (Doc. No. 14.) The 14 United States’ state court complaint alleges the same three causes of action under CEQA but 15 omits the IGI claim. (Doc. No. 18-6.) 16 Because the IGI claim is central to the instant motion, the court summarizes it here. The 17 IGI Doctrine is grounded in the Supremacy Clause of the United States Constitution, see Boeing 18 Co. v. Movassaghi, 768 F.3d 832, 839 (9th Cir. 2014), and generally prohibits any “state or local 19 law that directly regulates the conduct of the federal government or discriminates against it . . . , 20 even if it is no more restrictive than federal law.” United States v. City of Arcata, 629 F.3d 986, 21 991-92 (9th Cir. 2010). 22 Prior to the Plan Amendment, the Bay-Delta Plan imposed a salinity objective at Vernalis 23 of 1.0 dS/m September through March and 0.7 dS/m April through August. (See FAC ¶ 46.) 24 Currently, Reclamation’s water rights for the New Melones Project are conditioned, through 25 Water Right Decision 1641 (“D-1641”), on meeting those pre-existing requirements (1.0 dS/m, 26 September through March, and 0.7 dS/m April through August) on the San Joaquin River as 27 measured at Vernalis. (FAC ¶ 48.) These standards are met through releases of water from New 28 Melones and related reservoirs when necessary to create dilution flows. Id. 1 The Amended Plan recognizes that the existing salinity objective is “lower than what is 2 needed to reasonably protect agricultural beneficial uses.” (FAC ¶ 44 (citing State Water Board 3 Resolution No 2018-059, ¶ 6)). “As a result, the Amended Plan makes the standard less stringent, 4 imposing a year round 1.0 dS/m objective.” (Id. at ¶ 45.) 5 The FAC alleges that the Board’s program of implementation for the new standards 6 assigns solely to Reclamation the burden of providing dilution flows to meet a lower salinity level 7 than 1.0 dS/m—a level that the Board otherwise finds protective of Southern Delta agricultural 8 uses. (Id. at ¶ 53.) The FAC further alleges that “[i]n the SED, the Board further prejudices any 9 future water right implementation process by explaining that Reclamation would be required to 10 meet the 0.7 dS/m at Vernalis (despite the actual standard being 1.0 dS/m) to provide 11 ‘assimilative capacity’ below Vernalis so that other water users and dischargers may degrade the 12 salinity level below Vernalis.” (Id. at ¶ 54.) In sum, the United States alleges that “because the 13 Board has now determined that a standard of 1.0 dS/m is sufficiently protective of agricultural 14 beneficial uses, there is no rational basis for the Board to require Reclamation to meet a more 15 stringent standard to prevent unacceptable water quality at Vernalis.” (Id. at ¶ 90.) 16 On July 3, 2019, the State Water Board moved to dismiss the entire lawsuit, citing four 17 separate abstention doctrines: Brillhart/Wilton, Burford, Pullman, and Colorado River. (See 18 Doc. No. 17.) The motion also argued that the IGI claim is unripe and fails as a matter of law on 19 various grounds. (Id.) After the court ordered a round of supplemental briefing (see Doc. No. 20 25), the motion to dismiss became ripe for decision in mid-November 2019. (Docs. No. 26, 27.) 21 On December 2, 2019, the previously assigned district judge stayed adjudication of the state law 22 (CEQA) claims, pursuant to the abstention doctrine set forth in Colorado River Water 23 Conservation District v. United States, 424 U.S. 800 (1976). (See Doc. No. 28 at 22–28, 35.) 24 The court declined to reach the merits of the Board’s ripeness challenge to the IGI claim, 25 however, finding that the issues were not sufficiently addressed and explored in the papers. (Id. 26 at 28–33.) Thereafter, the parties stipulated to a briefing schedule to supplement their arguments 27 on the ripeness issue (Doc. No. 30), and then stipulated to an extension of that schedule (Doc. No. 28 39). 1 On March 6, 2020, approximately three weeks before the supplemental briefing period 2 was to close, the San Joaquin Tributaries Authority (“Applicant”) requested leave to file an 3 amicus curiae brief. (Doc. No. 41.) The court has reviewed that request, the proposed amicus 4 brief (Doc. No. 41-6), and defendants’ opposition to the request (Doc. No. 43), as well as 5 Applicant’s reply (Doc. No. 43), in light of the entire record. 6 The Federal Rules of Civil Procedure do not set forth the manner and circumstances in 7 which an amicus brief may be filed in district courts. District courts therefore rely on Federal 8 Rule of Appellate Procedure 29 (“Rule 29”) in addressing such requests. See Earth Island Inst. v. 9 Nash, No. 1:19-cv-01420 DAD SAB, 2019 WL 6790682, at *1 (E.D. Cal. Dec. 12, 2019). A 10 “district court has broad discretion to appoint amici curiae.” Hoptowit v. Ray, 682 F.2d 1237, 11 1260 (9th Cir. 1982), overruled on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). 12 “The touchstone is whether the amicus is ‘helpful.’” Earth Island, 2019 WL 6790682 at * 1 13 (citing Hoptowit, 682 F.2d at 1260). 14 As a threshold matter, the State Board suggests Applicant’s request is untimely because 15 this case has been ongoing for some time and the initial motion to dismiss was fully briefed more 16 than six months ago. (Doc. No. 43 at 1.) The court does not agree. Rule 29 states that an amicus 17 curiae must file its motion and brief “no later than 7 days after the principal brief of the party 18 being supported is filed.” The brief Applicants seek to support here is plaintiff’s supplemental 19 brief, filed February 28, 2020. (See Doc. No. 40.) The application was timely filed one week 20 later. (Doc. No. 41.) 21 The critical question, therefore, is whether the brief is “helpful” to the court’s inquiry. A 22 key issue remaining to be decided in this case is whether the IGI claim is ripe under the 23 controlling standard set forth in Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 24 (1998), which requires a reviewing court to consider: (1) whether delayed review would cause 25 hardship to the plaintiff, (2) whether judicial review would inappropriately interfere with further 26 administrative action, and (3) whether the court would benefit from additional factual 27 development of the issues. 28 ///// 1 Here, the Board has taken the position that the IGI claim is not ripe because “the [B]oard 2 has not yet assigned responsibility for meeting the revised salinity objective.” (Doc. No. 17-1 at 3 22.) The Board maintains that the Bay-Delta Plan Amendments are not self-implementing (see 4 id. at 3), because the Board will implement the Amended Plan through future water rights and 5 water quality actions. (Id. at 22.) In support of this proposition, the Board cites the Amended 6 Plan itself, which states that “[b]y 2022, the State Water Board will fully implement the February 7 through June [Lower San Joaquin River] flow objectives through water right actions or water 8 quality actions.” (Doc. 18-3 at 24.) 9 As the previously assigned district judge noted, “what is somewhat unclear from the face 10 of the Amended Plan is whether, assuming the Amended Plan’s CEQA document survives 11 judicial review, the Board would ever implement the objectives in the Amended Plan before all 12 respective water rights and/or water quality actions are completed.” (Doc. No. 28 at 30.) Also as 13 mentioned, the record suggests that “existing water rights holders, of which [the United States] is 14 one, might be left ‘holding the bag’ with respect to some aspects of implementation of the 15 Amended Plan simply by virtue of their existing water right permit, at least until other water users 16 are assigned a portion of the respective responsibility for meeting the objectives of the Amended 17 Plan.” (Id. at 31.) 18 Although the court is not yet in the position to resolve definitively the ripeness issue, it 19 believes the proposed amicus brief will be helpful in several respects. First, the brief calls the 20 court’s attention to ways in which a ruling in this case could impact ongoing challenges in state 21 court to the Board’s implementation of the Amended Plan. (See Doc. No. 41-6 at 3.) This kind 22 of information may help the court refine the scope of its ripeness ruling. Second, the proposed 23 amicus brief argues that a fundamental premise of the Board’s ripeness argument—that it can 24 later spread the obligation of complying with the Vernalis salinity objectives across multiple 25 parties (see Doc. No. 45 at 3)—is incorrect. (Id. at 3–4, 7–8.) For obvious reasons (i.e., because 26 it would benefit the United States to have this burden shared by others), the United States has not 27 taken this position. Finally, the amicus brief takes a slightly different position than the United 28 States on an issue arguably going to Ohio Forestry’s “hardship” prong, namely, whether the MASS SLD VT EON NSM I ee OY OM

1 | United States has been unlawfully singled out by the requirement that it meet the more stringent 2 | Vernalis salinity objective. (Compare Doc. 40 at 8 (United States arguing it has been singled out 3 | and that this is an “adverse effect of a strictly legal kind”) with Doc. 41-6 (proposed amicus brief 4 | making the more nuanced argument that while it is appropriate and nondiscriminatory for the 5 | Board to assign sole or primary responsibility for meeting the salinity objective at Vernalis, the 6 | Board’s requirement that Reclamation meet a standard more stringent than that actually required 7 | by the objective is discriminatory)). The court believes it is likely important to at least consider 8 | this divergent position. 9 Accordingly, the court believes the proposed amicus brief will be helpful. Therefore, it 10 | will be considered and defendants will be afforded an opportunity to respond to it. 11 CONCLUSION 12 For the reasons set forth above: 13 (1) Applicants’ request to file (Doc. No. 41) its proposed amicus brief (Doc. No. 41-6) is 14 GRANTED; 15 (2) Applicants are directed to file the proposed amicus brief as a separate docket entry; 16 (3) Defendants shall have twenty-one (21) days to file a response to that brief of equal or 17 lesser length; and 18 (4) Thereafter, unless the court independently contacts the parties to re-set oral argument, 19 the matter will be deemed submitted for decision on the papers pursuant to Local Rule 20 230(g). 21 | IT IS SOORDERED. me □ ** | Dated: _ April 22, 2020 Vila A Dred 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28