Golden Gate University Environmental Law Journal


This Comment will demonstrate why enforcement of the lower San Joaquin River total maximum daily load (TMDL) for selenium under the Clean Water Act should be postponed by amending the Basin Plan for the lower San Joaquin and Sacramento Rivers to extend the selenium compliance schedule for the Grassland Area Farmers (GAF) until it finishes implementing its drainage management plan. This Comment will also discuss why the GAF’s drainage plan should be used as a model for Westlands and should prompt Congress to amend the San Luis Act to require Westlands’ farmers to provide their own drainage.

Part II will relate the history of the region and the water districts within it. It will also detail the geology of the region, the discovery of selenium, and the disastrous effects of selenium that led to wildlife destruction at Kesterson Reservoir. Finally, this Part will establish why drainage is difficult but vital for agriculture on the Westside. Part III will outline the complications facing drainage implementation on the Westside following the closure of Kesterson Reservoir. It will discuss the legal issues implicated by the Clean Water Act and the TMDL for the lower San Joaquin River. Further, it will explain the legal history of the cases that charged Reclamation with drainage responsibilities and ordered Reclamation to fulfill its duties under the San Luis Act.

Part IV profiles the Grassland Area Farmers and Westlands Water District. It describes the GAF’s long-term drainage plan and establishes why it should be encouraged and continued. It contrasts the GAF’s actions with Westlands’ inaction and suggests that Westlands should take control over its drainage problem as the GAF has done. Finally, Part V establishes the necessity of continued delay in the enforcement of the TMDL for the GAF’s drainage, the need for an amendment of the Basin Plan for the Sacramento River and San Joaquin River Basins, and the benefits of a legislative amendment to the San Luis Act. The Comment concludes by suggesting that while there is no perfect outcome for the agricultural issues on the Westside, amendments to the Basin Plan and the San Luis Act will create a fair and practical solution that will reward the GAF for its affirmative action and not allow Westlands to reap similar benefits through inaction.