The American West has always been arid, with little rainfall. In spite of that hydrological constant, the last 150 years have been a story of incredible settlement and growth in the West. Water, always the most important commodity for development, becomes relatively more scarce and precious. With each passing year, there is more and more competition for its use.

The burden of distributing that water among competing interests falls to the large and difficult body of law known as water law. Sacramento, as the capitol of California and also a regional center of federal government, plays host to its fair share of controversies, negotiations, and solutions in this distribution. Sacramento is also home plate for some of the busiest water lawyers in the region, including the lawyers at Somach, Simmons & Dunn.

Somach, Simmons & Dunn is a local firm of 13 lawyers, originally founded as DeCuir & Somach. The firm's lawyers have practiced extensively in the law of both water rights and water quality, representing a mix of both public agencies and private interests. In doing so, the lawyers at Somach, Simmons & Dunn are heavily involved in some of the more visible water controversies playing out in the West.

"Area of Origin" Protection and the American River
California captures and distributes much of its water to its various users through a system of reservoirs, canals, and natural watercourses. Much of this vast network is part of either of two massive water projects built in the 1950's and 1960's: the State Water Project, funded by the State of California, and the Central Valley Project, funded by the federal government. In large part, this collective plumbing system operated to gather water in relatively wetter Northern California and transfer it to the bulk of California's water users in Southern California. Even at the time the projects were built, there was considerable concern in Northern California that the projects would take local water away permanently, leaving nothing for future local needs.

As a result, the Legislature of California enacted the Watershed Protection Act as a political compromise, necessary to pass the legislation implementing and funding the state and federal water projects. The Watershed Protection Act gives to a watershed of origin, or an area immediately adjacent to the watershed that can be conveniently supplied with water from that watershed, a priority as against both the State Water Project and the Central Valley Project to all of the water reasonably required to adequately supply the needs of the watershed, area, or inhabitants or property owners therein. In essence, the Act assured Northern Californians that the water transferred through the projects to the municipal and agricultural users of Southern California could be reclaimed by Northern California to meet future needs.

In 2001, the State Water Resources Control Board issued an order on a petition for reconsideration granting the joint application of the El Dorado County Water Agency and the El Dorado Irrigation District for assignment of certain senior water rights to divert water from the American River. The water rights had a priority date of 1927, and were thought (in some quarters) to have enjoyed statutory "area of origin" protections under the Watershed Protection Act. In granting the application, however, the board conditioned the water rights by constraining the local agencies' right to divert during certain months of each year when the SWP and the CVP are required to meet water quality objectives in the Delta. In effect, the bard subordinated the priority of El Dorado's senior water rights to the State Water Project and the Central Valley Project, thereby allowing the projects to export water out of the areas of origin.

Sandie Dunn, managing partner at the firm, represents the El Dorado County Water Agency in the matter. The agency has filed for a writ of mandate in Sacramento Superior Court, seeking to overturn the decision of the board to condition the water rights in a manner contrary to the intent of the area of origin statutes. The protections to local watersheds embodied in the Watershed Protection Act and other California statutes have thus far received only light judicial scrutiny, but the inhabitants of these local areas are just now beginning to utilize the rights to water that were reserved to them under these statutes. The agency's suit may thus present the first serious test of the area of origin protections, as against the authority of the board to condition senior water rights. More broadly, the water rights of rapidly-developing Northern California watersheds may face off against users in Southern California who are presently using water from the Sacramento River but have agreed under the Act that this use is, in essence, only temporary.

The Sacramento River, Central Valley Project, and Water Quality
When the federal government undertook to construct the Central Valley Project nearly 40 years ago, the scheme of reservoirs and conveyances it contemplated threatened to substantially alter the natural flows of the Sacramento River, among other rivers. Since there were various irrigation, reclamation and other water districts holding senior and vested water rights under California law to divert surface water from the Sacramento River, the government was forced to reckon with those water right holders in order to construct and operate the CVP. Accordingly, the U.S. Bureau of Reclamation entered into long-term settlement contracts with these local districts, recognizing the districts' senior water rights to divert certain natural flows of the Sacramento River and also providing a contractual entitlement to additional water supplies during the summer months from the CVP's yield. The contracts were effectively dual in nature, representing on the one hand the bureau's agreement to recognize certain longstanding water rights of the districts on the Sacramento River, and on the other hand selling to the districts an additional quantity of water from the Sacramento River as altered by the CVP.

As the 40-year term of these settlement contracts expire in 2004, controversy between the districts and the bureau arose regarding the terms of their renewal. A dozen districts eventually filed collective suit in United States District Court in regard to the construction of a key renewal term in the original settlement contracts, in order to determine if the quantities of Sacramento River water set forth in the original contracts were binding terms of any renewal contracts. Stuart Somach and Andy Hitchings, partners at the firm and general counsel for the Glenn-Colusa Irrigation District, served as lead counsel for all of the districts in the suit. The lawsuit was recently dismissed without prejudice, due to encouraging progress in the contract renewal negotiations between the bureau and the districts.

Simultaneously, many of the districts and the bureau have agreed to the implementation of a basin-wide water management plan. The plan provides for increased water conservation and better water management through both conjunctive use of surface and groundwater resources and water transfers. The plan is also consistent with efforts to resolve the longstanding controversy over Bay-Delta water quality, through the so-called Phase 8 settlement process. Together with the renewal of the settlement contracts, these processes may finally pave the way for a resolution of water quality concerns in both the Sacramento River basin and the Bay-Delta, while simultaneously protecting vested state water rights.

The Klamath River, Irrigation Rights, and Endangered Species
Tension between irrigation rights, tribal rights, the needs of endangered species of fish, and other water demands in the Klamath River Basin has recently been in the forefront of the news. A decision in 2001 by the U.S. Bureau of Reclamation, charged with regulating reservoirs of the Klamath Irrigation Project, created a great deal of social and economic fallout by curtailing diversions of water to farmers within the Klamath Basin in order to protect suckerfish and coho salmon listed as endangered under the federal Endangered Species Act. Moreover, while the drought conditions within the basin that forced that decision have abated - for the moment, anyway - the conflicts over water within that arid region are a fact of life.

Paul Simmons, one of the firm's partners, has been intimately involved in the ongoing face-off between water users and other interests in the basin. The basin is comprised of the Klamath River and its tributaries, which lies on both sides of the California-Oregon Border. The Klamath Project, a federal irrigation project authorized in 1905 under the Reclamation Act of 1902, stores water in a number of reservoirs located both on and off the Klamath River, including Upper Klamath Lake. The project distributes water to a number of users within both states, parts of which were largely settled in response to the federal policy embodied in the Reclamation Act. Simmons represents the Tulelake Irrigation District of California, and the Klamath Water Users Association, whose members included numerous other irrigation districts in the Klamath Project.

Since the difficulties of 2001, water has been returned to the Klamath Project, but uncertainty remains. The bureau recently issued a new biological assessment, a key environmental document under the federal Endangered Species Act, for the future operation of the project. The assessment recognizes that a number of other activities besides operation of the project cause impacts to listed species in the basin, and indicates the project should not be accountable to compensate for these impacts. This assessment was followed by biological opinions by federal resources agencies, however, which continue to present major challenges.

There remains a great deal of regulatory wrangling on legal issues and the science behind the various environmental documents which govern operations of the project. Much is unknown about endangered species in the Klamath River, and even more is debated. Also, the State of Oregon is proceeding with an adjudication of the Klamath River Basin in Oregon, which will determine and quantify rights within the basin, and which could change the regulatory response to future instream water demands for species within the basin. A clear picture of the eventual solution to the conflict between species needs and irrigation rights has yet to emerge.

Regardless of the outcome on the Klamath, the American, or the Sacramento River, the lawyers at Somach, Simmons & Dunn look forward to participating in the resolution of future water conflicts across the West. The firm recently celebrated its tenth anniversary, and is settling into its new offices in the Hall of Justice Building at 6th and H Streets. The view appears to be that controversies over water quality and quantity are a fact of life in the region, and Sacramento is an ideal place to ground a practice in the law of this scarce resource.