United States v. State Water Res. Control Bd.

• Citation: 418 F.Supp.3d 496
• Decision Date: 02 December 2019
• Docket Number: 2:19-cv-000547-LJO-EPG
• Court: U.S. District Court — Eastern District of California
• Parties: UNITED STATES of America, Plaintiffs, v. STATE WATER RESOURCES CONTROL BOARD & State Water Resources Control Board Chair E. Joaquin Esouivel, in his official capacity, Defendants.

418 F.Supp.3d 496

UNITED STATES of America, Plaintiffs,

v.STATE WATER RESOURCES CONTROL BOARD & State Water Resources Control Board Chair E. Joaquin Esouivel, in his official capacity, Defendants.

2:19-cv-000547-LJO-EPG

United States District Court, E.D. California.

Signed December 2, 2019

Erika Danielle Norman, United States Department Of Justice, Washington, DC, Kelli L. Taylor, U.S. Attorney's Office, Stephen M. MacFarlane, United States Department Of Justice, Sacramento, CA, Romney S. Philpott, III, U.S. Department Of Justice, Denver, CO, for Plaintiff.

Mark William Poole, California Department of Justice, Oakland, CA, Dylan K. Johnson, Dept. of Justice, San Diego, CA, Tamara Zakim, Cal. Department of Justice, Office of the Attorney General, San Francisco, CA, for Defendants.

ORDER RE MOTION TO DISMISS, RESOLVING ABSTENTION ISSUES AND REQUIRING FURTHER BRIEFING ON CERTAIN REMAINING ISSUES (ECF NO. 17)

Lawrence J. O'Neill, UNITED STATES CHIEF DISTRICT JUDGE

I. INTRODUCTION

On March 28, 2019, Plaintiff United States of America filed two similar lawsuits, one in Sacramento County Superior Court, the other in this Court, concerning amendments adopted by Defendant State Water Resources Control Board ("State Water Board" or "the Board") to the Water Quality Control Plan for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary ("Bay-Delta Plan Amendments," "Amendments," or "Amended Plan"). See ECF No. 1; ECF No. 18 (Request for Judicial Notice ("RJN")), Ex. 6. The First Amended Complaint ("FAC") in this (the federal) action raises three causes of action under the California Environmental Quality Act ("CEQA"), Cal. Pub. Res. Code §§ 21000 et seq. ,–(1) failure to provide an accurate, stable and finite project description; (2) improper compression of impacts and mitigation; and (3) failure to adequately evaluate impacts–along with (4) a cause of action based upon the federal constitutional intergovernmental immunity ("IGI") doctrine. ECF No. 14. The United States' state court complaint alleges the same three causes of action under CEQA but omits the IGI claim. RJN, Ex. 6 (ECF No. 18-6).

Before the Court for decision is Defendants' motion to dismiss. ECF No. 17. The motion argues dismissal of the entire lawsuit is warranted under four separate abstention doctrines: Brillhart / Wilton , Burford , Pullman , and Colorado River . The motion also argues that the IGI claim is unripe and fails as a matter of law on various grounds. Plaintiff opposed the motion. ECF No. 20, and Defendants replied, ECF No. 21. On November 4, 2019, the Court ordered supplemental filings on one of the abstention issues, resulting in additional briefing. See ECF Nos. 26 & 27. The matter was taken under submission on the papers pursuant to Local Rule 230(g). ECF No. 22.

II. BACKGROUND

A. Factual Background

The history of regulation and litigation of issues related to the San Francisco Bay/Sacramento-San Joaquin Delta Estuary ("Bay-Delta") is long, wide, and deep. Without question, the Bay-Delta itself is a critically important natural resource that is both the hub of California's water supply and a vital estuary and wetland supporting numerous beneficial uses. RJN, Ex. 1 at p. ES-1. Central to the present dispute is the fact that the State Water Board holds authority under California's Porter-Cologne Water Quality Control Act, Cal. Water Code § 13000, et seq. , to adopt water quality control plans to protect the waters of California. The Board adopted its original Water Quality Control Plan for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary ("Bay-Delta Plan") in 1978, and amended that plan in 1991, 1995, and 2006. RJN, Ex. 2, ¶ 3. The most recent effort to amend the Bay-Delta Plan began in 2009, and, over a nine-year period, the Board considered various amendments and prepared environmental documentation analyzing the potential environmental impacts of the Bay Delta Plan Amendments under CEQA. RJN Ex. 2, at ¶ 7; FAC ¶ 30.

The Board held numerous publicly-noticed meetings and reviewed thousands of comments regarding the proposed Amendments and related drafts of the Substitute Environmental Document ("SED") prepared in accordance with CEQA. RJN Ex. 2, at ¶ 7; FAC ¶ 30. On December 12, 2018, the Board adopted the SED and Amended Plan. RJN Ex. 2, at ¶ 7(g); FAC ¶ 31.

In general, the Amendments are designed to accomplish several 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 River (the Stanislaus, Tuolumne, and Merced Rivers) during critical months (February through June) RJN, Ex. 3, at 15, 25-27; FAC ¶¶ 32-34. These flow increases are designed to improve spawning, rearing, and migratory habitat conditions in the Lower San Joaquin River. RJN Ex. 1, at ES-8, n. 6, ES-12. The Board plans to implement the flow objectives "adaptively," within broad constraints, to adjust timing and flow patterns to better balance multiple beneficial uses when scientific information indicates doing so is appropriate. See RJN, Ex. 3, at 25-26.

Second, the Amendments provide that the Board will include minimum reservoir carryover storage targets or other requirements to ensure that providing the flows to meet the objectives will not have adverse temperature or other impacts on fish and wildlife. RJN Ex. 3, at 24; FAC ¶¶ 38-39.

Third, the Amendments revise southern Delta salinity objectives for agriculture by adjusting the salinity requirements/restrictions to a slightly higher level, ostensibly to reflect updated scientific knowledge of southern Delta salt levels that reasonably protect agriculture. RJN Eh. 3, at 34-35; Ex. 1, at ES-5. More specifically, the Amended Plan revises the salinity objective for agricultural beneficial uses by increasing the April through August salinity objective from a mean daily electrical 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 compliance locations year-round. RJN Ex. 3, at 12-13, Table 2; see also FAC ¶ 14 (explaining that dS/m is a "widely accepted indirect method of determining the salinity of water").

Reclamation's existing water rights to operate the federal Central Valley Project ("CVP"), including its permits to operate the New Melones Project, a component of the CVP, currently require Reclamation to meet the existing salinity objective of 0.7 dS/m at these locations. FAC at ¶ 48; see RJN Ex. 3, at 34. The Amended Plan proposes to implement the salinity objective for the interior southern Delta by requiring Reclamation to continue operating to meet the 0.7 dS/m salinity limit at Vernalis as required by its existing water rights. RJN Exh. 3, at 34. The Amended Plan also proposes to implement the salinity objective through increased inflows provided by application of flow-based (as opposed to salinity-based) objectives for the Lower San Joaquin River. Id. at 38, ¶ vi.

B. Procedural History in State Court

On March 28, 2019, the United States filed substantially similar actions in Sacramento County Superior Court, RJN Ex. 6 (Sacramento Cty. Sup. Court Case No. 34-2019-80003111-CU-WM-GDS), and this Court, ECF No. 1. The action here invokes the jurisdiction of this court pursuant to 28 U.S.C. § 1345 (United States as Plaintiff), among other bases.

The United States is not alone in challenging the Board's adoption of the Bay-Delta Plan Amendments. A total of twelve lawsuits were filed in state court between December 21, 2018, and April 22, 2019. RJN Ex. 4 (Order Granting Petition for Coordination and Motion for Stay), at 2-4; Ex. 5, at ¶ 5; Exs. 6-17. On February 21, 2019, the State Water Board filed a petition with the Judicial Council of California for coordination of the first nine cases. RJN Ex. 4.

On May 29, 2019, the Board filed a motion to dismiss in this case, raising various abstention arguments. ECF No. 9. On June 19, 2019, the United States filed its FAC, adding the single IGI claim. ECF No. 14. With respect to the CEQA claims, the FAC seeks a declaratory judgment that the State Water Board violated CEQA and an injunction preventing implementation or enforcement of the Bay-Delta Plan Amendments. FAC, at 20 (Prayer). In the alternative, the FAC seeks a mandamus writ directing the board to vacate the SED, suspend all activity under the Amended Plan, and prepare, circulate, and consider a revised and legally adequate SED. Id. With respect to the IGI claim, the FAC seeks declaratory and injunctive relief. Id.

On May 3, 2019, the United States filed a motion in state court to stay its state case pending resolution of its federal case.¹ On May 8, 2019, the coordination motion judge ordered eleven of the twelve cases coordinated, leaving the United States' case to be considered separately for coordination. RJN Ex. 4, at 5-6. On May 24, 2019, the State Water Board filed a Petition for Coordination of the United States case as an Add-on case. RJN Ex. 22. That motion is still pending.

III. ANALYSIS

A. Order of Analysis

The focus of the pending motions is application of a variety of abstention doctrines. In addition, the Board has argued, primarily on ripeness grounds, that the Court lacks subject matter jurisdiction over the sole federal claim arising under the IGI doctrine. Normally, the Court would tackle the jurisdictional question first, for a variety of reasons. However, as discussed below, the Court is unable to decide definitively the ripeness question without further briefing. Moreover, because the United States invokes 28 U.S.C. § 1345 as a basis for jurisdiction, this Court arguably would have jurisdiction to hear the indisputably ripe CEQA claims even if no federal claim remained in the case. As such, the Court would be required to evaluate whether it should abstain from hearing the CEQA claims, even if the IGI claim were dismissed. In addition, the Court understands that the Superior Court for the County of Sacramento is awaiting this...