California’s State Water Project Continues Under New Incidental Take Permit and New Litigation

12.12.2024

On November 4, 2024, the California Department of Fish and Wildlife (“CDFW”) adopted Findings of Fact and issued Incidental Take Permit Number 2081-2023-054-00 to the Department of Water Resources (“DWR”) in connection with long-term operation of its State Water Project. The permit, which is in effect until 2034, allows for continued water diversion and storage, and operation of power plants and conveyance systems that make up the State Water Project, which provides a water supply to 27 million Californians.  On November 27, 2024, certain environmental groups filed a lawsuit challenging DWR’s approval of the project and alleging violations of the California Environmental Quality Act (“CEQA”), the California Endangered Species Act (“CESA”), and the public trust.   On the same date, various Central Valley Project (“CVP”) water users that obtain water supplies through contracts with the U.S. Bureau of Reclamation (“Reclamation”) also filed suit under CEQA, alleging that DWR’s approval would negatively impact their contract supplies. 

The State Water Project is one of two coordinated surface water delivery projects; the other being the CVP managed at the federal level by Reclamation. Both projects’ operations are in part within the Sacramento-San Joaquin Delta (“Delta”), a crucial water and ecological resource in the state. The Delta effectively serves as both a conveyance path for water from Northern California as well as habitat for certain protected species. 

CESA sets forth criteria for listing certain fish species as endangered, threatened, or candidates for protection. Any agency that conducts activity that may adversely impact a listed species or its habitat must comply with CESA and apply for a permit to continue operations. Such impacts include the “take” of these species as defined in the Fish & Game Code section 86 as, to “hunt, pursue, catch, capture, or kill.” The taking of a listed species is prohibited absent a permit that demonstrates two main criteria: 1) the take is incidental to an otherwise lawful activity and 2) the impacts of the activity fully mitigate the authorized take. This Incidental Take Permit is issued by CDFW pursuant to Fish and Game Code section 2081 and requires an agency to explicate the extent of its activities that may result in taking. It further requires an agency to set forth the measures and funding strategy to mitigate the taking. The goal of the permit is thus to allow for lawful activity while ensuring the continued protection of listed species.

DWR applied for an Incidental Take Permit under CESA to continue State Water Project operations because such operations may have an adverse impact on certain fish species that have been classified as either threatened or endangered in the Delta. CDFW issued a prior permit to DWR in 2020 that covered four fish species protected under CESA: the Longfin Smelt, the Delta Smelt, the Spring-Run Chinook salmon, and the Winter-Run Chinook salmon. CDFW’s recent Incidental Take Permit rescinds the prior permit and now covers the same four species as well as the White Sturgeon, which is considered a candidate species under state law.

On November 27, 2024, a coalition of environmental groups and a native American tribe filed a petition for writ of mandate in Sacramento Superior Court and alleged that DWR’s approval of Long-Term Operation of the State Water Project violated CEQA, CESA, and the public trust.  The petitioners claim that despite extensive evidence of negative impacts, DWR “implausibly concluded” that project operations wouldn't have a significant impact on the environment, and that protected species under CESA would be harmed.  Petitioners further assert that the environmental impact report prepared for compliance under CEQA fails to disclose all impacts including those related to Delta surface water hydrology.  Allegations also include that DWR failed to properly balance public trust interests that would increase freshwater flows by reducing project exports, and further violated public trust duties under Fish and Game Code section 5937, which requires fish be kept in good condition below a dam.

Litigation initiated simultaneously by water users asserts that “operation of the SWP is dependent on and interconnected with the CVP operated by Reclamation” and that DWR and CDFW “refused to meaningfully consult and coordinate with [Reclamation] as CEQA requires.”  Water user petitioners assert that the EIR is deficient due to failing to analyze feasible alternatives, failing to analyze surface and groundwater impacts, agricultural resources, and aquatic and other biological resources. 

With litigation by both environmental and water user groups challenging the Incidental Take Permit, the parties reassert many positions initially brought in ongoing litigation that challenged the 2020 Incidental Take Permit.   Historically, DWR relied on a “consistency determination” from the CDFW to operate the project, essentially signifying that the SWP’s operations comply with the CESA by aligning with federal Biological Opinions (BiOps) that govern endangered species protection; however, in more recent years, California has required a separate, stand-alone state permit rather than solely rely on federal determinations.  For questions or additional information, please reach out to any of the authors of this Alert.