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C. 28

To:	Board of Supervisors
From:	John Kopchik, Director, Conservation & Development Department
Date:	December 13, 2016

Contra

Costa

County

Subject:

Amendment to the 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: 12/13/2016

APPROVED AS RECOMMENDED

OTHER

Clerks Notes:

VOTE OF SUPERVISORS

AYE:

John Gioia, District I Supervisor
Candace Andersen, District II Supervisor
Mary N. Piepho, District III Supervisor
Karen Mitchoff, District IV Supervisor
Federal D. Glover, District V Supervisor

Contact:	Stephen Siptroth (925) 335-1817
cc:	John Kopchik, DCD Maureen Toms, DCD Ryan Hernandez, Water Agency

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: December 13, 2016
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, 2016, to increase the payment limit by $10,000, to a new payment limit of $20,000, 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:

In 2012, the Water Agency paid The Bay Institute $10,000 for legal expenses in the above litigation. This amendment will authorize the Water Agency to pay The Bay Institute an additional $10,000 for expenses related to the litigation. 100% Water Agency funds.

BACKGROUND:

In 2012, Contra Costa County, the Contra Costa County Water Agency, the Natural Resources Defense Council (“NRDC”), and The Bay Institute of San Francisco (“Bay Institute”) entered into a joint defense agreement related to the litigation 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”). 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 Ninth Circuit Court of Appeals issued a decision in the Firebaugh appeal in favor of the Bureau of Reclamation (“Reclamation”). 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 the Westlands Water District (“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 desire to coordinate their advocacy activities by having Bay Institute advocate on their behalf. Water Agency staff recommend that the Board authorize the County Counsel, or designee, to negotiate and execute an amendment to the joint defense agreement, to provide for an additional $10,000 payment to Bay Institute for advocacy expenses Bay Institute incurs between October 1, 2016, 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.

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 $10,000.

CHILDREN'S IMPACT STATEMENT:

Not applicable.