Feds say California water board is forcing discriminatory salinity requirements on it

SAN FRANCISCO (CN) — The federal government argued Friday before a Ninth Circuit panel that seven years for resolution in a case about water salinity standards is too long.

A lower court ruled in 2023 that the U.S. Bureau of Reclamation couldn’t claim an amendment to salinity standards for parts of the Sacramento-San Joaquin River Delta discriminates against the U.S. government.

But that plan singled out the federal government, setting a more stringent salinity standard for it, attorney Frederick Turner, representing the United States, argued.

“Managing water quality in the Bay Delta is certainly a complicated issue,” he said, adding later: “The terms of the amended plan are discriminatory on its face.”

Turner said that plan is currently in effect. However, attorney Dylan Johnson, representing the California State Water Resources Control Board, said an important distinction exists.

There are the objectives stated in the 2018 plan followed by its implementation. The plan exists, but implementation hasn’t happened — meaning the issue still isn’t ripe for a court’s consideration.

“On its face, the plan makes a distinction,” said U.S. Circuit Judge Daniel Bress, a Donald Trump appointee. “It imposes a different standard.”

Johnson said the plan allows the water board to impose different salinity requirements for entities other than the federal government. He also said the appeals panel couldn’t determine the United States faced discrimination, before the plan has even been implemented.

“Why isn’t it a live question now?” Bress asked, adding: “Why can’t this just be hashed out now?”

Several intricate, complicated criteria are examined before the board decides how much water the various entities must release. That hasn’t happened yet, Johnson said.

Bress also suggested the simplest method of resolving the issue would be amending the plan. However, Turner said his client is bound by the plan’s salinity requirements as a condition of its water rights. He wants the case heard in federal court.

The panel made no decision that day — nor it decide on another, unrelated water case that also involved the Bureau of Reclamation.

In that case, the Center for Biological Diversity and others appealed the conversion of contracts between water users and the bureau. It claimed that review under the Endangered Species Act and the National Environmental Policy Act remains intact, despite a 2016 law that enabled the contract conversions.

Representing the bureau, attorney Angela Ellis said that law — the Water Infrastructure Improvements for the Nation Act — required the bureau to change a contract if requested by a water user.

Comparing it to a lease, Ellis said a water user is now able to prepay on a contract for a set amount of time for an agreed upon amount of water. That prepayment allowed the government to fund certain water projects, and users were incentivized to convert contracts because of favorable terms they received.

However, it didn’t provide an end-run around environmental review, she added.

“Reclamation undertakes an extensive environmental review,” Ellis said. “That is a separate, ongoing review.”

Attorney Meredith Nikkel, representing the Sacramento Municipal Utility District and others, said the existing contracts already had undergone the environmental review the center wanted. The WIIN Act added favorable terms.

But attorney Ernest Wright, representing the center, argued Congress would have been clear in the law if it intended to remove that review process.

U.S. Circuit Judge Gabriel Sanchez, a Joe Biden appointee, said a water project still faces a larger review.

“We’re not eliminating environmental review from this whole process, just one feature of it,” he said.

Answering a question from Sanchez, Wright said the case would hinge on statutory interpretation. He added that Congress could have stated these contract conversions were exempt from review.

“But they don’t say so,” Wright said.

The panel for both cases was rounded out by U.S. Circuit Judge Kim Wardlaw, a Bill Clinton appointee.