The Interior Department is obliged to build an agricultural drain for land irrigated by the San Luis Unit of the Central Valley Project, the Ninth Circuit U.S. Court of Appeals has ruled. The 40-year-old San Luis Act called for a system in which water, after being used for irrigation, would drain to the Bay Delta. But the Interior Department never completed the drain, a situation that created the environmental crisis that killed or maimed thousands of birds at Kesterson Reservoir during the 1980s.
A three-judge panel of the Ninth Circuit voted 2-1 to order the federal government to build the drain to the Bay or create an in-valley answer to the accumulation of brackish irrigation water.
In a dissent, Judge Stephen Trott said the court could not force construction of the drain, and he urged Congress and the state to take action.
Congress authorized the San Luis Unit to irrigate farmland in Merced, Fresno and Kings counties in 1960. The San Luis Act conditioned construction of irrigation facilities with the provision of a drainage system built by the state or the Interior Department. The state declined to construct the master drain, so the Interior Department in 1962 said it would make provisions for the drain to the bay.
The project began delivering irrigation water to the Westlands Water District in 1967, and construction of the drain commenced the following year. The middle 40% of the 200-mile-long drain to the Bay Delta had been complete by 1975, when the federal government suspended the project because of public "concerns." At that time, the drain discharged 7,300-acre-feet of water into Kesterson Regulating Reservoir, which was never intended to be the end point. In mid-1983, studies found that waterfowl nesting at Kesterson were deformed and dying, likely because of a selenium concentration. Because of the environmental disaster at Kesterson, the federal government plugged the interceptor drain in 1986. But the government continued its delivery of irrigation water, which has led to the deterioration of low-lying farmland.
Landowners inside and outside the San Luis Unit service area sued the Interior Department to force completion of the drain. The lawsuits were partially consolidated in May 1992, and a district court eventually issued a partial summary judgement saying that the Interior Department had to provide drainage service to lands receiving San Luis water.
After the judgement was issued, the Interior Department argued that changes in the law and environmental knowledge made compliance with the San Luis Act impossible and excused the federal government from completing the drain. After a 1994 bench trail, District Judge Oliver Wanger ruled for the landowners. He said the federal government must provide the drainage service and it should pursue a discharge permit from the California Water Resources Control Board.
The Interior Department appealed and was joined by Contra Costa County, the Contra Costa Water Agency, the Contra Costa Water District, the National Resources Defense Council and The Bay Institute, all of which were concerned about the affect of agricultural drainage on the Bay. They argued that the San Luis Act only authorized construction of a drain, but did not require one, and that riders in Congressional appropriation acts since 1965 had repealed the duty to provide the drain.
The court majority disagreed. The San Luis Act said that if the Interior Department chose to build the unit, it must also provide the agricultural drain, Chief Judge Procter Hug Jr. wrote. "The discretion contained in this authorization is limited to the decision whether to construct the unit. The very next sentence of the statute specifically defines which ‘principle engineering features' are to be included in the ‘unit' (if the unit is constructed), and it thus denied the Secretary discretion as to what constitutes the San Luis ‘unit.'"
The court interpreted the appropriation language to mean that a final point of discharge could not be determined until the Interior Department and the state agreed on a plan to protect water quality. "Congress merely placed a condition on the determination of the final point of discharge; by no means did it excuse or repeal the Secretary's obligation to provide drainage," Hug wrote.
The court, however, reserved the lower court's ruling that the Interior Department must get a state water discharge permit.
"Although the district court can compel the Department of the Interior to provide drainage service as mandated by the San Luis Act, the district court cannot eliminate agency discretion as to how it satisfies the drainage requirement. … Now the time has come for the Department of the Interior and the Bureau of Reclamation to bring the past two decades of study, and the $50 million expended pursuing an ‘in valley' drainage solution, to bear in meeting its duty to provide drainage under the San Luis Act," Hug wrote.
In his dissent, Trott disagreed with majority's interpretation of the Act and of appropriation language. He said the Act only authorizes, but does not require, construction of a master drain. He also said Congress has blocked construction of the drain "in nearly every appropriations bill for the Bureau of Reclamation for 30 years." Trott concluded there was little the court could do.
"The thorny problem of what to do with the noxious effluent is not readily susceptible of a solution that the parties with competing interests will find acceptable. In fact, the question in search of an answer has become a political question beyond our ability, competence, and authority to resolve," Trott wrote.
Firebaugh Canal Co. v. United States, Nos. 95-15300, 95-16661, 00 C.D.O.S. 955, 2000 Daily Journal D.A.R. 1391, filed February 4, 2000.
For Firebaugh: William M. Smiland, Smiland & Khachigian,
For the U.S.: Jeffrey Dobbins, Department of Justice Environmental and Natural Resources Division, Washington D.C., (202) 514-2000.