Agriculture · Fresno

Fresno slips, slides to kill $2.5mil water suit against Friant as Feds side with water agency

Sept. 30, 2021 · 5 p.m. – The City of Fresno’s lawsuit against the Friant Water Authority over a $2.5 million payment for repairing a sinking 33-mile stretch of the Friant-Kern Canal is officially dead in the water.

Hours after The San Joaquin Valley Sun reported on a ruling from U.S. Bureau of Reclamation with Federal officials finding that Fresno ratepayers would be required to cough up the repair payment, Fresno lawmakers voted to withdraw a suit for declaratory relief from the charge.

Five members of the Fresno City Council – President Luis Chavez, Miguel Arias, Esmeralda Soria, Nelson Esparza, and Tyler Maxwell – voted to withdraw. Council member Garry Bredefeld cast the lone dissent to withdraw the legal claim and Mike Karbassi was absent from the vote.

The Thursday vote represented an odd shift from the initial vote to initiate litigation, particularly in light of the public statements issued by the Bureau of Reclamation.

Two weeks prior, Chavez and Bredefeld were the lone members opposing the suit, while Arias, Esparza, Maxwell and Karbassi supported the litigation, backed by the Dyer administration.

Sept. 30, 2021 · 9:46 a.m. – A standoff between the City of Fresno, the Friant Water Authority, and the U.S. Bureau of Reclamation may be shorter lived than initially anticipated.

At the center of the action: a $2.5 million demand from Friant to Fresno officials to contribute to repairs on the sinking middle reach of the Friant-Kern Canal near Porterville – nonpayment of which could jeopardize the city’s water supply.

Two weeks ago, Fresno City Council members voted 4-2 to authorize a lawsuit against Friant contesting their obligation to contribute roughly $2.5 million to repair the canal.

The funding for the repairs – which is tabbed between $400 and $600 million – is a patchwork of nine-figure legal settlements with groundwater sustainability area agencies in southeastern Tulare County that caused the subsidence, the San Joaquin River River Restoration program, and funding proposals circulating through Congress and the California State Legislature.

Fresno, a member of the authority that oversees the maintenance and management of the canal and Friant Dam, positioned itself as not needing to shoulder the burden of paying for damage to the canal caused be heavy groundwater pumping in Tulare County.

“Friant has entered into settlement agreements with parties that caused the damage,” Fresno City Manager Thomas Esqueda said following the vote to authorize litigation earlier in September. “Unfortunately, Friant did not request those parties to pay the full cost of repair, hence they’re coming to the City of Fresno to backfill that deficit.”

He also argued that the $2.5 million payout had no benefit to Fresno residents and ratepayers.

“No action by the City of Fresno caused the damage to the Friant-Kern Canal, nothing we ever did caused that. The request by Friant to repair for the damages, that weren’t caused by the city, provides no benefit to the city.”

Friant officials heavily contested Esqueda’s claims of little-to-benefit to the City of Fresno, citing the city’s use of the entire canal to deal water to other users on the open market.

Fresno files its suit contesting repair share

Five days after Fresno lawmakers authorized the suit against Friant, attorneys on behalf of the city filed suit in Fresno County Superior Court.

While the city sought resolution via the courts, Friant officials sought an answer from the ultimate authority over its water contracts: the U.S. Bureau of Reclamation.

The ask? Do the repairs of the Friant-Kern Canal, including the middle reach repair project, constitute “operations, maintenance, and replacement?”

If so, Fresno, under its water contract with the Federal government administered by Friant, is legally required to pay its share.

Federal agency sides with Friant over Fresno

Following a round of letters between the City of Fresno and Friant Water Authority dating back to May, Friant Water Authority petitioned Reclamation to intervene via its dispute resolution process, an administrative arbitration proceeding.

In a letter obtained by The Sun on Wednesday, Reclamation region director Ernest Conant sided with Friant on the key question.

“[The] Capacity Correction Project costs, for which FWA is responsible, are properly classified as [operations, maintenance, and repairs,]” the letter reads.

Conant also rejected a key argument wagered by the City of Fresno – that the project was “updating facilities due to faulty original construction.”

He noted in his response that the repair project would “be restoring the canal’s capacity close to the historic conveyance levels that existed prior to 2014 are a result that are a result of subsidence impacts and not correcting a construction defect.”

The other issue raised in the dispute was over the allocation of costs for the Friant-Kern Canal repair project, with a contention over whether Fresno’s $2.5 million share was “equitable.”

In his response, Conant said that there had never been a dispute over Friant Water Authority’s method of allocation operations, maintenance, and repair costs.

He described the allocation scheme as “a methodology that is based in part on the level of service provided or expected to be provided through water deliveries to a given contractor” and added that it “is an approach currently applied by other contractors in the Central Valley Contract.”

Read the Federal response

Alex Tavlian is the Executive Editor of The San Joaquin Valley Sun and Executive Director of Valley Future Foundation. You can reach Alex at alex.tavlian@sjvsun.com.