Federal Circuit Determines CVP Restoration Fund Payments Must Be Proportionately Assessed to Water and Power Customers
California Water Law & Policy Reporter, Volume 30, Number 4
On November 6, 2019, the U.S. Court of Appeals for the Federal Circuit in Northern California Power Agency et al. v. United States determined that mitigation and restoration charges imposed on buyers of water and power from the federal government’s Central Valley Project (CVP) must be assessed proportionately to their relative CVP repayment obligations. CVP water customers are responsible for approximately 75 percent of CVP repayment obligations, while power customers typically shoulder the remaining 25 percent. The U.S. Court of Federal Claims previously held the opposite, ruling that while the result—which saw power customers’ obligations for mitigation and restoration charges increase dramatically in excess of 25 percent during the recent drought—was “curious in the extreme,” based on principles of statutory construction there was no applicable proportionality requirement.