CSPA Protests Attempt to Roll Back 1998 Water Rights Agreement

In 1992, CSPA protested a water rights application by the June Lakes Public Utilities District in Mono County.  In 1998, June Lakes PUD agreed to incorporate  a minimum streamflow requirement of 200 gallons per minute at its diversion on Fern Creek, tributary to Rush Creek and ultimately to Mono Lake.  This agreement was incorporated into multiple water rights permits and licenses, and in return CSPA dismissed its protest.

In February, 2014, the State Water Board issued a notice of a petition by June Lakes PUD to reduce the Fern Creek minimum flow to 25 gallons per minute, one eighth the flow that it agreed to 16 years ago.  On March 31, 2014, CSPA filed a protest with the State Water Board in opposition to the reduction.

Perhaps the most troublesome aspect of these events is that a water rights holder thought that it was okay, sixteen years after the fact, to simply back out of its flow agreement.  The June Lakes PUD did not provide any scientific basis for its proposed change, and stated that the change was not significant enough to warrant formal environmental review; these omissions make the attempted rollback even worse.

June Lakes PUD did not extend the courtesy of notifying CSPA of its petition.  However, CSPA diligently follows up its work and defends its agreements and other achievements.

June Lakes protest CSPA 033114

Posted in Chris Shutes, Water Rights | Comments Off

CSPA Issues Notice of Intent to Sue Sacramento Concrete Facility

On 13 March 2014, CSPA sent a Notice of Intent to Sue Jensen Precast for violations of the substantive and procedural requirements of the federal Clean Water Act and California’s General Industrial Stormwater Permit.  The 12-acre Sacramento concrete facility discharges polluted stormwater to Magpie Creek, which then flows to Steelhead Creek, the Natomas East Main Drainage, and then to the Sacramento River.

In addition to the facility’s discharge of pollutants that exceed standards, Jensen Precast failed to: 1) prepare an adequate Stormwater Pollution Prevention Plan, 2) implement an adequate monitoring and reporting program; 3) install management measures to reduce or prevent pollutants from entering waterways and 4) file true and correct annual reports.

Pursuant to the citizen-suit provisions of the federal Clean Water Act, CSPA is required to send a potential defendant a notice letter informing them of the specific violations that have been identified. The U.S. EPA, U.S. Department of Justice, state Attorney General and the Regional Water Quality Board are copied and, if the agencies fail to initiate enforcement actions within 60 days, CSPA is free to file a lawsuit against the discharger. CSPA has offered to meet with the City to see if the matter can be resolved prior to litigation.  Lawyers for Clean Water are representing CSPA in this matter.

Notice Letter

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CSPA Issues Notice of Intent to Sue Concrete Facility in Lincoln

On 13 March 2014, CSPA sent a Notice of Intent to Sue Syar Concrete, LLC, which operates a ready mix concrete facility in Lincoln California.  The notice letter alleges that the facility illegally discharges pollutants to Markham Ravine, which flows into Auburn Ravine and ultimately the Sacramento River, in violation of the substantive and procedural requirements of the federal Clean Water Act and California’s General Industrial Stormwater Permit.

In addition to the facility’s discharge of pollutants that exceed standards, Syar Concrete failed to: 1) prepare an adequate Stormwater Pollution Prevention Plan, 2) implement an adequate monitoring and reporting program; 3) install management measures to reduce or prevent pollutants from entering waterways and 4) file true and correct annual reports.

Pursuant to the citizen-suit provisions of the federal Clean Water Act, CSPA is required to send a potential defendant a notice letter informing them of the specific violations that have been identified. The U.S. EPA, U.S. Department of Justice, state Attorney General and the Regional Water Quality Board are copied and, if the agencies fail to initiate enforcement actions within 60 days, CSPA is free to file a lawsuit against the discharger. CSPA has offered to meet with the City to see if the matter can be resolved prior to litigation.  Lawyers for Clean Water are representing CSPA in this matter.

Syar Concrete Notice Letter

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CSPA Settles Lawsuit Against Pittsburg Chemical Facility

On 10 March 2014, CSPA settled a Clean Water Act lawsuit Criterion Catalysts & Technologies, LP, a 30-acre industrial inorganic chemical facility in Pittsburg, for violations of the federal Clean Water Act and their California General Industrial Stormwater Permit.  The lawsuit alleged that the facility discharged polluted stormwater, including aluminum, iron, zinc, copper, nickel, lead, nitrogen, suspended solids and pH and above applicable levels into the Suisun Bay.

The settlement agreement obligates Criterion Catalysts to comply fully with the Clean Water Act, develop and implement a suite of Best Management Practices and structural improvements, conduct more frequent and comprehensive monitoring and prepare an adequate Stormwater Pollution Prevention Plan.  The settlement incorporates provisions that allow CSPA to return to court to enforce the terms of the agreement, if necessary.

As mitigation for past violations, Criterion Catalysts agreed to send $40,000 to the Rose Foundation for Communities and the Environment to fund environmental projects to improve water quality in the San Francisco Bay-Delta watershed.  They also agreed to reimburse CSPA’s costs of bringing suit.  The Law Offices of Lozeau/Drury LLP represented CSPA in this matter.

Settlement Agreement, Complaint and Notice Letter

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Court Strikes Down Environmental Review of Kern Water Bank

On 5 March 2014, Sacramento Superior Court Judge Timothy M. Frawley ruled that the EIR for the operation of the Kern Water Bank, the nation’s largest underground water-banking operation, failed to comply with basic requirements of the California Environmental Quality Act.  The court will now begin a proceeding to determine an appropriate remedy.

Nearly four years ago, CSPA, California Water Impact Network, Center For Biological Diversity and South and Central Delta Water Agencies filed a lawsuit against the California Department of Water Resources, the State Water Contractors and Kern County Water Bank over the Environmental Impact Report (EIR) of the Monterey Plus Agreement.  The subject EIR was developed following an earlier successful lawsuit that mandated development of new environmental documents.

The Monterey Agreement was fashioned in a series of secret meetings and modified the State Water Project’s water contracts.   The Agreement: eliminated the “urban preference,” which prioritized water deliveries to municipalities during drought; eliminated requirements to bring water contracts into balance with reliable project yield; provided for increased delivery of “surplus water,” that resulted in worsening water quality and declining Delta fisheries and illegally transferred state property known as the Kern Water Bank to wealthy private entities, undermining the California Water Code by masking the purpose and place of water use.  The Agreement essentially institutionalized the concept of “paper water.”

Judge Frawley ruled in favor of DWR on the remaining issues.  While the victory over the Kern Water Bank, which contributed to the decline of Delta fisheries, was important, plaintiffs respectfully disagree with the other aspects of the ruling and are evaluating future steps.  We note that the original victory over the deficient EIR was only achieved at the appellate level.

Press Release   Lawsuit Decision

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CSPA and Coalition Comment on Draft Yuba River Application

CSPA and allied conservation groups in the Foothills Water Network have filed comments in the relicensing of the Yuba River Development Project.  Yuba County Water Agency’s (YCWA) project is currently in the relicensing process with the Federal Energy Regulatory Commission.

The Network asks licensee YCWA to expand the analysis in its Draft License Application to consider fish passage, how flows in the Feather River affect the Yuba, and how flow increases to support improved flows in the Delta should be part of setting flows in the lower Yuba River.  The comments also discuss the need to improve juvenile rearing habitat for salmon and steelhead and to improve conditions for riparian vegetation in the lower Yuba River.  The Network recommends a suite of recreational improvements, including facilities for boating (including drift boats) in the river reaches affected by the Project.

FWN comments YRDP DLA

Posted in Chris Shutes, Hydroelectric (FERC) | Comments Off

CSPA Protests State Board’s Drought Urgency Order

CSPA, CWIN and AquAlliance have filed a formal protest against the State Water Resource Control Board’s (State Board) Order Approving a Temporary Urgency Change in License and Permit Terms and Conditions Requiring Compliance with Delta Water Quality Objectives in Response to Drought Conditions (Order).  The Order essentially waives compliance with established water quality standards and Delta protections.

The protest asserts that the Order does not serve the public interest, is contrary to law and will have an adverse environmental impact.  It requests a full evidentiary hearing, details the circumstances that led to the present crisis, enumerates the threats to already degraded fisheries, suggests steps that could be taken to minimize impacts and sets forth eleven specific conditions under which the protest can be resolved.

In the last hundred years, California has experienced ten multi-year droughts spanning forty years.  Drought is a normal condition in the state.  Yet, following a very dry 2013 water year, the state and federal water projects (Projects) exported more that 826,000 acre-feet of water beyond what they had told their contractors they could deliver.  Despite no rainfall and low reservoir storage, they continued to export 681,000 acre-feet of water through the first four months of the 2014 water year.  This was consistent with project operations during the previous 1976-1977, 1987-1992 and 2007-2009 droughts.

The Projects gambled that rain would come and lost.  They waited until the end of January to petition the Water Board, thereby eliminating the opportunity for comment by affected parties.   And now, fisheries, water quality and the state’s economy will grievously suffer the consequences of their greed and egregious failure to reserve sufficient water storage for inevitable dry conditions.

The Water Board, itself, has encouraged the Projects to act recklessly because they have blatantly refused to enforce Bay-Delta standards during both drought and normal periods – standards that were developed in evidentiary proceedings and take critically dry periods into account.  In fact, CSPA points out that the Water Board has never taken an enforcement action against the projects for hundreds of violations of Bay-Delta standards.

CSPA Protest   Attachment, Workshop Presentation

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CSPA Submits Comments on Industrial General Permit

On 4 March 2014, CSPA submitted additional comments on the latest draft of the revised General Industrial Stormwater Permit to the State Water Resources Control Board.  The permit regulates the discharge of polluted stormwater from over 9,000 industrial facilities in California and is scheduled for adoption at the Board’s 1 April meeting.  Over the last three years, CSPA has attended numerous workshops and provided extensive comments on various drafts of the permit.  CSPA maintains an aggressive enforcement campaign targeting facilities that ignore or violate the requirements of the permit.

Industrial Permit Comments

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CSPA, Coalition Protest State Water Contract Provisions

On 3 March 2014, CSPA and a Coalition of environmental, fishing and tribal groups wrote Mark Cowin, Director of the Department of Water Resources (DWR), asking they he deny proposed changes in the water supply contracts that would shift fish and wildlife mitigation costs incurred by the State Water Project to the state’s General Fund (and taxpayers), thereby eliminating legislative authority and oversight.    DWR and State Water Contractors also conducted secret meetings and eliminated the option of individual contractors to “opt-out” of the proposed Bay Delta Conservation Plan.  The proposed contract amendments will socialize more of the costs while privatizing the benefits of a project that has already received substantial taxpayer funds.

The Coalition also wrote Senate President Pro Tem, Darrell Steinberg and Speaker of the Assembly, John A. Perez asking for legislative oversight hearings to: assess expenditures that will rely on the General Fund as a result of the contract extension amendments; provide a list of expenditures that necessitate extension of the SWP repayment contract for more than a 100 years and issuance of additional debt; and assess compliance with the Water Code, which requires mitigation for construction, operation and maintenance of any Delta water conveyance facility.

Cowin Letter   Darrell Steinberg John Perez Letter

Posted in Bay Delta Conservation Plan, Bill Jennings, Miscellaneous | Comments Off

CSPA Adopts Drought Position Paper

CSPA, along with the California Water Impact Network and AquAlliance, have adopted a general drought position paper.  The paper points out that, while drought occurs approximately 40% of the time in California, there is sufficient water for our cities, responsible and sustainable agriculture and fisheries and wildlife if its not wasted and inequitably distributed.

The present crisis is largely of our own making and the over allocation, waste and misuse of limited water supplies must stop.  The state’s antiquated, expensive and environmentally destructive hydraulic system is unsustainable and the best, most reliable and untapped source of available new water is conservation, reclamation and reuse of local water supplies.

Drought Position Paper

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California Committee on Salmon and Steelhead Recommends No BDCP

On 26 February 2014, the California Advisory Committee on Salmon and Steelhead Trout sent California Department of Fish and Wildlife Director Charlton Bonham a letter recommending that the Department deny an incidental take permit and Natural Communities Conservation Plan (NCCP) for the Bay Delta Conservation Plan (BDCP).  The Advisory Committee was established by the legislature to advise the Director on actions necessary to protect and increase salmon and steelhead fisheries.

The letter pointed that populations of salmon and steelhead have experienced 90% declines since the State Water Project began exporting water from the Delta and opposed approving an NCCP for BDCP because:

  • BDCP does not contribute to recovery and would jeopardize the continued existence of Sacramento River winter-run and spring-run Chinook salmon.
  • The concept of habitat restoration measures to offset impacts from increased water withdrawals from the Delta is not supported by science.
  • The proponents of BDCP do not assure funding and water supplies for habitat restoration measures.
  • BDCP does not include analysis on an alternative or alternatives that would meet the recovery goals for Sacramento River winter-run and spring-run Chinook salmon.

In sum, the BDCP does not meet the requirements of the California Endangered Species Act or a NCCP.

CACSST Letter to Bonham

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CSPA Presses FERC for Tuolumne River Improvements

CSPA and allies have filed comments on major documents in the relicensing of the Don Pedro Project on the Tuolumne River.  In comments on the Updated Study Report and the Draft License Application, CSPA and nine other Conservation Groups dispute scientific conclusions of the Turlock and Modesto Irrigation Districts about salmon and steelhead in the lower Tuolumne River.  The Conservation Groups also request analysis of fish passage and recommend analysis of flow increases both in the lower Tuolumne River and other rivers in the lower San Joaquin watershed.

The Districts have proposed no change in flow requirements for the lower Tuolumne.

CSPA has been a leader on FERC issues on the lower Tuolumne River since 2009.  The organization’s engagement in FERC proceedings on the Tuolumne dates to 1995.

2014-02-24_FINAL DLA Comments.

Posted in Chris Shutes, Hydroelectric (FERC) | Comments Off

CSPA Requests Urgent Actions to Protect Delta and Longfin Smelt

On 20 February 2014, in a letter to California Natural Resources Agency Secretary John Laird and Secretary of the Interior Sally Jewell, CSPA requested that the agencies take urgent action to protect Delta smelt and longfin smelt during the present drought crisis.  Present operations of the state and federal water projects are adversely affecting the survival and migration of these listed species during critical life stages.

Population abundance of Delta smelt and longfin smelt has already declined by 95.6% and 99.8% from 1967, when the State Water Project began water exports from the Delta, and the long-term viability of these species is seriously at risk.  The letter presents several specific recommendations and requests future CSPA participation in the Smelt Working Group.

It follow a 27 January letter to the Secretaries of Commerce, Interior and California’s Natural Resource Agency requesting urgent drought action to protect the Central Valley’s beleaguered Chinook salmon populations.  A joint meeting has been arranged between CSPA, Golden Gate Salmon Association, Pacific Coast Federation of Fishermen’s Association and the agencies to discuss specific emergency actions that can be taken this year to protect salmon.

CSPA Delta and Longfin Smelt Urgency Request

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CSPA, Coalition Submit Comments on Biological Objectives for Freshwater Streams and Rivers

On 21 February 2014, CSPA joined Heal the Bay, California Coastkeeper Alliance, Pacific Coast Federation of Fisherman’s Associations, Californians for Alternatives to Toxics, Environment California and others in submitting comments to the State Water Resources Control Board in support of efforts to develop biological objectives for freshwater streams and rivers in California.  Specifically, the groups urged the State Board to adopt present regulatory “Option 1,” a statewide water quality objective with biological endpoints.  Dischargers and industry groups are proposing weaker, watered down objectives that essential maintain the status quo.

Biological objectives (i.e., the presence, conditions and numbers of fish, macroinvertebrates and other organisms) provide a meaningful and comprehensive metric of the overall health of aquatic ecosystems.   The condition of benthic macroinvertebrates, in particular, are an ideal indicator of stream health because they are relatively stationary, ubiquitous and show a diversity of responses to stressors.

The State Water Board initiated a process to develop biological objectives for freshwater streams and rivers in 2010 and has been working with scientists, regulators and stakeholders to develop and refine needed technical tools.  Indicators, standardized methods, reference conditions and quality assurance have been developed and now the Board is considering a policy for biological objectives.  More information on the process can be found at http://www.waterboards.ca.gov/plans_policies/biological_objective.shtml

Biological Objectives Letter

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CSPA Testifies at State Water Board Drought Urgency Hearing

On 18 and 19 February 2014, CSPA testified at the State Water Resource Control Board’s workshop regarding the drought urgency petition filed by the Department of Water Resources and U.S. Bureau of Reclamation and the Water Board’s temporary order, issued on 31 January and revised on 6 February, that weakened water quality and fish protection standards for the Delta.  The workshop was conducted to receive comments and feedback on the order and suggested modifications to better protect public interest, health and safety and beneficial uses of water.  The formal comment period on the order ends on 3 March 2014.

CSPA, as the only fishery organization at the workshop, testified that: 1) fish population crashes and regime shifts tend to occur during drought; 2) fish population abundances are at a fraction of the levels that existed when the State Water Project began operations; 3) drought occurs 40% of the time in California; 4) the state and federal water projects operate on a year-to-year basis with little thought of a dry tomorrow; 5) during recent droughts, more than 6 million acre feet (MAF) of water storage was reduced in Shasta, Oroville and Folsom reservoirs; 6) the Department of the Interior gave away more approximately 450 thousand-acre-feet (TAF) of water in 2011 and DWR exported more than 826 TAF more water that it had said it could in 2013 and 7) with reservoir storage at extremely low levels, the projects continued to export almost 2.4 MAF between June and December 2013.  CSPA’s attorney followed up by pointing out that both project operations and the State Water Board’s order ignore and violate long established regulatory standards and California’s system of water rights.

In sum, California’s ecosystems and economy are facing a severe crisis, exacerbated by the state’s historical failure to enforce standards established to protect fisheries and water quality and by gross mismanagement by the state and federal export projects.  CSPA is preparing a formal protest of the State Water Board’s Emergency Drought Order.

Workshop Presentation

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CSPA, Coalitions Thank Feinstein, Boxer and Urge Continued Support for Sane Drought Policies

On 9 February 2014, CSPA joined PCFFA, Golden Gate Salmon Association, Golden Gate Fishermen’s Association, Coastside Fishing Club and Water4fish in sending a letter to California Senators Diane Feinstein and Barbara Boxer thanking them for opposing the disastrous HR 3964 (Valadao) and urging them to support drought legislation that maintains environmental protections, protects already degraded fisheries and focuses on management actions that can help water users in both the short and long term.  These would include increased water conservation, wastewater recycling, environmentally benign water transfers and groundwater storage.

CSPA was also a signatory to a 9 February 2014 Environmental Water Caucus letter to the senators along similar lines.  In addition, the EWC letter urged that drought relief legislation in the Senate not remove federal protection from a segment of the Merced Wild & Scenic River and not include support for the proposed Sites and Temperance Flat’s projects or the raise of Shasta Dam.

CSPA/Fisheries Group Letter    CSPA/EWC Coalition Letter

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CSPA Appeals Westside SJR WDRs for Irrigated Lands to State Water Board

On 7 February 2014, CSPA and CWIN appealed the Central Valley Regional Water Quality Control Board’s approval of general waste discharge requirements (WDRs) for growers within the Western San Joaquin River Watershed that are members of a Third Party Group to the State Water Resources Control Board.  The new general WDRs were approved on 9 January 2014 and replace the existing waivers of WDRs that regulate discharges from some 3,100 farms covering approximately 500,000 acres.  Virtually all of the streams within the area are identified as seriously polluted by agricultural wastes.

Unfortunately, the requirements in the new WDRs are essentially the same as those in old waivers except they don’t have to be renewed every five years.  The Regional Board and the public will still not know who is discharging, where discharges are occurring, the pollutants discharged, impacts to local receiving waters, whether management measures have been implemented or if implemented measures are effective.

In lengthy comments to the Regional Board, CSPA stated that the proposed order failed to comply with California’s Porter-Cologne Water Quality Control Act and the state’s Nonpoint Source Control and Antidegradation Policies.  CSPA asks the State Board to vacate the approval and remand the order back to the Regional Board with instructions prepare and circulate a new tentative order that comports with regulatory requirements.

State Board Appeal

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CSPA Files Lawsuit Against Santa Cruz Concrete Facility

On 7 February 2014, CSPA filed a lawsuit against Las Animas Concrete and Building Supply Inc., in Santa Cruz California for substantive and procedural violations of the federal Clean Water Act and California’s General Industrial Stormwater Permit.  The lawsuit alleges that Las Animas illegally discharges pollutants to the City’s storm sewer drainage system, which flows to the San Lorenzo River and Pacific Ocean.  Pollutants discharged above applicable limits include: iron, zinc, lead, aluminum, oil & grease, pH, specific conductivity and total suspended solids.

The action asks the court to: 1) declare Las Animas to be in violation of the law; 2) enjoin defendants from discharging pollutants to surface waters in violation of their permit and from further violating the substantive and procedural requirements of the permit; 3) take appropriate actions to restore the quality of waters impaired by their activities, and 4) pay civil penalties for each day of violation and reimburse CSPA the costs of bringing the complaint.  The Law Offices of Andrew Packard is representing CSPA in this matter.

Lawsuit

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CSPA, EWC Oppose HR 3964

CSPA and the thirty-plus members of the Environmental Water Caucus submitted a letter opposing HR 3964 to the Speaker and Minority leader of the U.S. House of Representatives.  The proposed legislation, authored by Representative David Valadao of Hanford and described as an “Emergency Water Delivery Act,” is a callous political stunt that uses the drought as an excuse to legislatively overturn California and federal water and environmental laws.

The bill would mandate increased delivery of northern California water to Valadao’s corporate agricultural constituents in the southern San Joaquin Valley: water that simply doesn’t exist in the present drought.  It would reduce water quality and reliability for Delta communities and farms, strip Endangered Species Act protections for listed fish species, overturn the San Joaquin River Restoration Settlement Act, gut the Central Valley Project Improvement Act, override current protections for the Merced River under the Wild and Scenic Rivers Act and modify water contracts to provide more water for certain contractors than they are entitled to under present contracts.

With the support of the Republican majority, the bill bypassed relevant committees and, with no hearings, is headed for a vote on the House floor this week.  Concerned citizens are urged to locate their Congressional Representatives on CSPA’s “Take Action” page and submit an email opposing this ill-considered legislation.

HR 3964 Opposition Letter   Press Release   RTD Press Release

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Irrigation Districts begin FERC licensing of La Grange Dam

In  a significant victory for CSPA and conservation allies, Turlock Irrigation District (TID) and Modesto Irrigation District (MID) have begun the process to get a hydropower license for TID’s powerhouse at La Grange Dam.  This process may require a study of fish passage on the Tuolumne River.

In the ongoing relicensing of the Districts’ Don Pedro Project, CSPA and others had requested study of fish passage.  The Districts had previously persuaded FERC that since the non-jurisdictional La Grange Dam blocked passage, FERC could not require study of passage past it or past Don Pedro Dam.

However, on July 19, 2013, the Federal Energy Regulatory Commission issued an Order ruling that TID, owner of a small unlicensed powerhouse near the base of La Grange Dam, needed to commence a licensing proceeding of the La Grange Project, including the dam.  MID, joint owner with TID of La Grange Dam, is also appearing as a licensee.   

In the July Order, FERC granted the Districts a 6 month delay before commencing relicensing.

In September, 2013, the Districts sued FERC in the Court of Appeals, D.C. Circuit, asking that the licensing order be set aside. Also in September, the Tuolumne River Trust filed a separate suit, and CSPA and others subsequently intervened in favor of the Trust.  The Trust’s suit seeks to have the La Grange facilities licensed as part of the Don Pedro Project in a combined licensing.  Briefs in the now combined court cases are due March 26, 2014.

In a motion filed on December 20, 2013, the Districts requested another delay in licensing.  In a response dated the day after Christmas, Conservation Groups opposed further delay.  FERC has not responded to these pleadings.

On January 29, 2014, the Districts distributed the Pre-Application Document (PAD) for licensing La Grange.  A copy of the PAD can be downloaded from the La Grange Licensing website at http://www.donpedro-relicensing.com/LaGrange/Documents/20140129_UL11-1_LaGrange_PAD-Appendices_140129.pdf   The PAD for La Grange appears to be heavily reliant on information generated in the Don Pedro relicensing.  We have not yet found in it any mention of fish passage.

Posted in Chris Shutes, Hydroelectric (FERC) | Comments Off