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Legal Brief - B(2) Water in the Dock

Almost seven years after Congress passed the Central Valley Project Improvement Act (CVPIA), the legal battle between environmentalists, the Dept. of the Interior and agricultural users of CVP water over implementation of one of the law's central provisions is headed for a July 20th trial date.

The trial is supposed to resolve the dispute over the accounting system used to measure Central Valley Project water released for environmental restoration under the CVPIA (so-called "b(2)" water). The statute dedicates 800,000 acre feet of CVP yield annually to the environment, but nowhere near that amount has ever been released, according to Save the Bay's Cynthia Koehler. In fact, Interior has argued that it did not need to measure the water precisely, so long as it implemented certain environmental restoration measures.

In March a federal judge ruled that the law requires Interior to provide the full 800,000 acre feet of CVP yield - no more and no less - to the environment and gave the Department 180 days to come up with an accounting system for the water. In May the same judge issued an injunction ordering the Department to obey the law and shaving two months off the accounting system deadline.

Environmentalist argue that the accounting system should measure water in terms of reduced deliveries to CVP water users. "Because the CVP is fully - if not over - allocated, it's a zero sum game," says Koehler. "If it's CVP water, its got to come from CVP users."

The water users dispute this interpretation. "Since the CVPIA was signed there have been other measures, such as the Bay-Delta Accord, that impose restrictions on the CVP," says attorney Tom Birmingham, arguing that implementation of these measures already requires CVP users to give up more than 800,000 acre feet for the environment.

As a result of the legal wrangling, scheduled April export reductions to help fish did not occur. Koehler maintains that the judge's order requires Interior to make up for the lost water. "We need to think about banking it, or about other types of fish measures. Either way, Interior can't avoid their obligation. The full 800,000 acre feet has to be provided."

Contact: Cynthia Koehler (510) 452-9261 or Tom Birmingham (916)321-4500

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