Agenda

Return

C. 58

To:	Board of Supervisors
From:	John Kopchik, Director, Conservation & Development Department
Date:	November 7, 2017

Contra

Costa

County

Subject:

Joint Defense Agreement among County, Water Agency, Natural Resources Defense Council & Bay Institute

APPROVE	OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR	RECOMMENDATION OF BOARD COMMITTEE

Action of Board On: 11/07/2017

APPROVED AS RECOMMENDED

OTHER

Clerks Notes:

VOTE OF SUPERVISORS

AYE:

John Gioia, District I Supervisor
Candace Andersen, District II Supervisor
Diane Burgis, District III Supervisor
Karen Mitchoff, District IV Supervisor
Federal D. Glover, District V Supervisor

Contact:

Stephen Siptroth (925) 335-1817

I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown.
ATTESTED: November 7, 2017
David Twa,

BY:	, Deputy

RECOMMENDATION(S):

APPROVE and AUTHORIZE the County Counsel, or designee, to execute, on behalf of the County and the Contra Costa County Water Agency, an amendment to the joint defense agreement with Natural Resources Defense Council and The Bay Institute, effective October 1, 2017, to increase the payment limit by $30,000, to a new payment limit of $50,000, for shared legal and advocacy expenses related to Firebaugh Canal Water District, et al. v. U.S. Department of Interior, Bureau of Reclamation, et al., and related cases.

FISCAL IMPACT:

100% Water Agency funds. The Water Agency has already paid Bay Institute $20,000 for shared legal and advocacy expenses related to the above litigation. The Water Agency will pay Bay Institute up to an additional $30,000 for those costs, as follows: $10,000 will be paid within 90 days after the approval of the amendment for services through September 30, 2018; an additional $10,000 will be paid upon request by Bay Institute if the litigation remains ongoing as of October 1, 2018, for services through September 30, 2019; and a final $10,000 will be paid upon request of Bay Institute if the litigation remains ongoing as of October 1, 2019, for services through September 30, 2020.

BACKGROUND:

This relates to additional funding that the Contra Costa County Water Agency (“Water Agency”) will provide to The Bay Institute of San Francisco (“Bay Institute”) for ongoing legal and advocacy work that Bay Institute is performing on behalf of itself and Contra Costa County, the Water Agency, and the Natural Resources Defense Council (“NRDC”), in opposition to a proposed settlement between Westlands Water District (“Westlands”) and the Bureau of Reclamation in the case entitled Firebaugh Canal Water District, et al. v. U.S. Department of Interior, Bureau of Reclamation, et al. (Ninth Circuit Court of Appeals Case No. 11-17715) (“Firebaugh appeal”).

In 2012, Contra Costa County, the Water Agency, NRDC, and Bay Institute entered into a joint defense agreement related to the Firebaugh appeal. Under the joint defense agreement, the Water Agency paid Bay Institute $10,000 for legal expenses that Bay Institute incurred advocating for the parties’ shared interests in the Firebaugh appeal. The United States District Court, Eastern District of California has retained jurisdiction of the underlying actions to enforce an order requiring Reclamation to provide drainage to lands within the San Luis Unit of the Central Valley Project, including lands within Westlands. Westlands, NRDC, Bay Institute, the County, and the Water Agency are intervenors in those cases, entitled Firebaugh Canal Water District, et al. v. U.S. Department of Interior, Bureau of Reclamation, et al., Eastern District of California Case Nos. CV-F-88-634-LJO/DLB and CV-F-91-048-LJO/DLB (the “Drainage Cases”). Westlands also has filed two other lawsuits against Reclamation related to drainage.

Reclamation and Westlands have negotiated a settlement of the two Drainage Cases and the two other drainage-related lawsuits. The proposed settlement would relieve Reclamation of its drainage obligations under the San Luis Act, a federal law, and would require Westlands to be responsible for agricultural drainage within its service area, which could adversely impact the water quality of the San Joaquin River and the Sacramento-San Joaquin Delta. The proposed settlement depends on Congress amending the San Luis Act.

As intervenors in the Drainage Cases the parties to the joint defense agreement have a shared interest in advocating against the proposed settlement and amendment to the San Luis Act. The parties have coordinated their advocacy activities by having Bay Institute advocate on their behalf. The joint defense agreement was amended, effective October 1, 2016, to provide an additional $10,000 of Water Agency funding to Bay Institute for legal and advocacy expenses that Bay Institute has incurred advocating for the parties’ shared interests in the Firebaugh appeal.

Because Bay Institute’s legal and advocacy work is expected to remain ongoing for the foreseeable future, Water Agency staff recommend that the Board authorize the County Counsel, or her designee, to negotiate and execute an amendment to the joint defense agreement, to provide Bay Institute up to an additional $30,000 in funding, for a total Water Agency funding contribution of $50,000, for legal and advocacy expenses Bay Institute incurs between October 1, 2017, and the earlier of (1) the date that Congress enacts legislation to effectuate the settlement between Reclamation and Westlands, or (2) the date the Court’s jurisdiction in the Drainage Cases ends. The additional $30,000 of Water Agency funding will be paid as follows: $10,000 will be paid before the end of the calendar year, to cover shared legal and advocacy services through September 30, 2018; $10,000 will be paid upon request of Bay Institute if the litigation remains ongoing as of October 1, 2018, to cover shared legal and advocacy services through September 30, 2019; and $10,000 will be paid upon request of Bay Institute if the litigation remains ongoing as of October 1, 2019, to cover shared legal and advocacy services through September 30, 2020. Any funds not actually used by Bay Institute are required to be returned to the Water Agency.

CONSEQUENCE OF NEGATIVE ACTION:

The County and Water Agency would need to pay for separate legal representation in the Drainage Cases and legislative advocacy at a cost that could exceed the additional $30,000 of funding that will be paid to Bay Institute.