On March 15, 2024, California Sportfishing Protection Alliance (CSPA) and allies submitted a letter to the State Water Resources Control Board (State Board) requesting that it resolve the protests of CSPA and others of a petition for extension of time submitted by the Department of Water Resources (DWR) in 2009.
CSPA submitted this letter because the State Board issued notice of DWR’s recent change in point of diversion petition for the Delta Conveyance Project (proposed Delta tunnel) without resolving protests made by CSPA and allies in 2010 regarding the same water rights.
DWR must be subject to the same laws and procedures as other water rights holders in the Bay-Delta watershed.
Background of DWR’s Petition for Extension
DWR was required to put water under permits associated with the State Water Project to full beneficial use by December 31, 2009. On the day of the deadline, DWR filed a petition for extension of time.
On October 13, 2010, CSPA and allies filed a timely protest of DWR’s petition for extension of time with the State Board. CSPA’s protest stated that DWR had not made an accounting of water used under each of its water rights. CSPA further stated that in order to store more water in one year in Oroville Reservoir than DWR had done in the past, DWR would have to draw down the reservoir so far that it would harm fish.
Today, almost 14 years later, the State Board has not acted on DWR’s petition for extension of time, and CSPA’s protest remains unresolved.
On June 6 and July 7, 2023, CSPA and allies submitted letters to the State Board regarding their unresolved protests. In these letters CSPA and allies requested that the State Board “clarify the status of DWR’s permits” and assign DWR’s 2009 petition to the Administrative Hearings Office (AHO) for resolution. The State Board has not responded to these requests.
On February 22, 2024, DWR filed a petition for change in point of diversion for the proposed Delta Conveyance Project. The State Board issued a notice of that petition just seven days later and gave protestants a mere 60 days to file protests against that new petition.
State Board Must Follow the Rules
In Water Rights Order WR 2008-045, the State Board described the rules regarding petitions for extension of time:
The Board’s regulations provide that the Board will grant a petition for an extension of time only upon such conditions as the Board determines to be in the public interest, and only upon a showing that (1) due diligence has been exercised, (2) failure to comply with previous time requirements was caused by obstacles which could not reasonably be avoided, and (3) satisfactory progress will be made if an extension is granted. (Cal. Code Regs., tit. 23, § 844.)
The State Water Board has not held DWR’s petition for extension of time to these requirements.
CSPA and allies conclude in their March 15 letter that the State Board’s “proposed ordering of proceedings is inconsistent with the water rights statutory scheme, implementing regulations, case law, and SWRCB [State Board] Orders in other water rights proceedings.”
DWR’s petition for change in point of diversion for the proposed Delta tunnel should not proceed until the 2010 protests submitted by CSPA and allies are resolved.