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CA's Central Valley Drainage Problem Gets No Help from 9th Cir.

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By William Peacock, Esq. on April 08, 2013 3:59 PM

In the 1960s, some brilliant individual decided that, with all of the Central Valley desert being, well, deserted, it would be a desirable idea to drench the place in water and start growing crops. Congress paid for irrigation contingent on either California paying for drainage, or the water being dumped in the Contra Costa delta.

Original plans to dump the toxic drainage in the S.F. Bay and the delta were thwarted because, well, it’s freaking San Francisco. Could you choose a less optimal place to kill mother nature?

After that flop, a temporary drainage solution was put into place until they discovered that, well, toxic water is toxic and halted drainage to the Kesterson Reservoir in 1986.

Of course, they continued to pump irrigation water in. They just didn't drain it out. It ended up ruining a lot of land - including the Firebaugh Canal Water District. In 2000, their case reached the Ninth Circuit, which held that the 1960s law required drainage, yet the Department of the Interior had the discretion to pursue alternative options to drain the water.

Thirteen years later, they're still floatin' on toxic water in Firebaugh and they're still in court, as nothing has happened.

If you're thinking budget crisis, you get a cookie. The drainage project is tabbed at $2.69 billion. Existing legislation caps the Interior's spending at $429 million and the water districts themselves can't make up the difference. Instead, they've spend about $5 million on a demo plant and a self-sufficient drainage system that covers part of another district.

In it's return to the Ninth Circuit (which is far less exciting than a Return to the 36 Chambers), Firebaugh is essentially arguing the timeless dirty words of "arbitrary and capricious" action. The court can give 'em the old § 706(1) nudge if the SUWA test is met. SUWA provides that a court can hold force action when an agency fails to take a discrete action that it is required to take.

Well, they haven't done much. Thirty years after they plugged the drain, with little to no action other than "evaluation" and "planning" occurring in the meantime, Firebaugh is still swimming in used irrigation water. That, per the Ninth Circuit, is not an abuse of discretion:

There is, to be sure, some point at which Interior's actions could become so sluggish that we could rightly say that the agency has entirely abandoned its legal duty to provide drainage within the San Luis Unit. The record before us does not now support that conclusion.

It's a tough call, isn't it? On the one hand, it's been twenty-seven years since they plugged the drain (months short of my entire life, in fact). On the other hand, budget crisis, fiscal cliffs, and sequestration.

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