CSPA in the News
Claims And Counter-Claims About Proposed Delta Tunnels ContinueJan 26, 2016 Read Online
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On 5 January 2016, the California Sportfishing Protection Alliance (CSPA) filed a formal protest of the WaterFix Project petition to change the point of diversion for the State Water Project (SWP) and Central Valley Project (CVP) WaterFix Project that was submitted to the State Water Resources Control Board (SWRCB). The California Water Impact Network (CWIN) and AquAlliance joined CSPA in the protest.
The California Department of Water Resources (DWR) and U.S. Bureau of Reclamation (USBR) petitioned the SWRCB to modify their SWP/CVP water rights to add Sacramento River points of diversion to facilitate the export of millions of acre-feet of water through proposed twin 30-mile long, 40-foot diameter tunnels under the Delta for delivery to southern California.
The Delta ecosystem has collapsed because the excessive diversion of water has already deprived the estuary of more than half of its historic inflow and its hydrograph (timing of flow) has been turned on its head. Consequently, the Delta’s water quality is highly degraded and its pelagic and anadromous fisheries are on the precipice of extinction. The WaterFix Project will eliminate all hope of restoring the estuary and its fisheries.
CSPA protested that the WaterFix project would increase the concentration of numerous pollutants, push fisheries into extinction, harm existing users of water, violate the public trust and numerous state and federal statutes and should not be considered by the SWRCB at the present time because of vast procedural irregularities. The identified procedural irregularities include the fact that the SWRCB: has not updated the Water Quality Control Plan for the Delta in twenty years, despite state and federal requirements to do so every three years; failed to conduct licensing hearings for existing CVP and SWP water rights and there is no final environmental review document for the WaterFix Project.
The evidentiary hearing on the matter will begin in April and is expected to take many months. CSPA will provide extensive legal and scientific testimony under oath, cross-examine project proponent witnesses and submit rebuttal evidence and closing arguments. CSPA, CWIN and AquAlliance have already made clear that, if necessary, we are prepared to litigate to save the Delta and its fisheries.
On 24 November 2015, CSPA joined Friends of the River, Restore the Delta and the Environmental Water Caucus in sending a letter to the State Water Resources Control Board regarding the hearing process with respect to the petition by the Department of Water Resources and U.S. Bureau of Reclamation to change the point of diversion in the Delta for their water rights. The change in the point of diversion is a crucial requirement for the California WaterFix water tunnels project.
The letter told the Water Board that it must produce its own environmental document because the WaterFix environmental document is irreparably and fundamentally inadequate and fails to address numerous issues related to a change in the point of diversion. The letter also pointed out that the Board should establish revised and legally protective water quality standards before it schedules hearings on the WaterFix project. It urged the State Water Board to postpone the hearing until an adequate environmental document could be prepared and/or recommended that the Board prepare its own environmental document for the proposed new diversion point. Protests on the petition are due on the fifth of January and lengthy evidentiary hearings are scheduled to begin in April 2015.
On October 26, 2015 CSPA, as part of a broad coalition of 87 environmental, fishing, and tribal organizations, submitted a letter to the State Water Resources Control Board (SWRCB) supporting the use of a percentage of unimpaired flow as the basis for winter and spring flow requirements into and through the Delta.
The “percent-of-unimpaired” approach was proposed by the State Water Resources Control Board in its 2010 Delta Flow Criteria Report, following a year-long proceeding and based on consensus by a wide variety of experts. Ever since, water user interests have attacked the approach because it will require that some of the water historically diverted for water supply be maintained as instream flow in order to restore to the Bay-Delta ecosystem.
The percent-of-unimpaired approach is the cornerstone of the State Board’s ongoing update of the Bay-Delta Water Quality Control Plan. The letter asks the State Board to reject a change in methodology, and concludes: “We ask the SWRCB to reject the efforts of the water contractors to delay and sabotage the present Water Quality Control Plan process and to move expeditiously in implementing Delta flow requirements needed to protect our waterways and fish.”
On November 8, 2015 CSPA, CWIN, and AquAlliance submitted comments to the Army Corps of Engineers regarding the Clean Water Act (CWA) Section 404 and River and Harbors Act (RHA) Section 10 permits recently requested for the California Water Fix by the US Bureau of Reclamation and the California Department of Water Resources. If issued, the permits would allow the discharge of dredged or fill material into waters of the United States for the construction of the Delta Tunnels.
Before issuing the permits, the Army Corps must evaluate the environmental documents for the California Water Fix to determine if those documents are sufficient under the National Environmental Policy Act for the Corps to use them in issuing the permits. CSPA argues that the California Water Fix’s Recirculated Draft EIR (RDEIR)/Supplemental Draft EIS (SDEIS) are not sufficient for this purpose, and summarizes the many flaws in that document. These flaws led the US Environmental Protection Agency to rate the SDEIS as inadequate. CSPA urges the Corps to not use the Water Fix’s RDEIR/SDEIS as the basis for issuing CWA Section 404 and RHA Section 10 permits, and requests that the Corps develop its own EIS.
On October 30, 2015 the public comment period for the Recirculated Draft EIR/Supplemental Draft EIS for Bay Delta Conservation Plan/California WaterFix (RDEIR/SDEIS) ended. CSPA submitted comments with CWIN and AquAlliance, and in a separate effort worked closely with the Environmental Water Caucus in developing the coalition’s comments.
CSPA’s comments focus in on persistent flaws within the Water Fix environmental documents, including:
- The failure to develop and consider a range of reasonable alternatives, most notably alternatives that would increase Delta outflow and reduce Delta exports
- Absence of requirements for state-of-the-art fish screens on South Delta export pumps that will continue to operate even if the tunnels are built
- The failure to adequately disclose and analyze the impacts to water quality and contaminant control that would result from diverting large amounts of water in the North Delta
- Myriad legal shortcomings in violation of NEPA and CEQA, including an inadequate description of the baseline condition of ecosystem collapse and the deferral of mitigation to an unspecified future
- Incoherent and obtuse presentation, and organization that makes reasoned decision making impossible
You can trace CSPA’s long term commitment to stop the tunnels on the No Bay Delta Conservation Plan Campaign.
Virtually everyone agrees that PG&E’s DeSabla – Centerville Hydroelectric Project on Butte Creek and the West Branch Feather River provides important benefits to salmon. Fortunately, the ten-year-long relicensing of this project is close to completion.
In the most recent process milestone, the State Water Board issued the Water Quality Certification for the relicensing in April. Staff from the State Water Board used the Certification to require suitable water temperatures for spring-run Chinook salmon holding in Butte Creek during the summer. Combined with the run down condition of the low-power Centerville Powerhouse and the expense of rebuilding it, the Certification helped PG&E to decide to decommission Centerville Powerhouse and the Lower Centerville Canal. Decommissioning will take place through a license amendment once the Federal Energy Regulatory Commission issues a new project license.
Less fortunately, in spite of an outcome largely agreed to by everyone, PG&E challenged many aspects of the Certification in a May 11, 2015 “Petition for Reconsideration.” Though less than a week later PG&E was complaining to a committee of Congress of delays in relicensing this specific project, PG&E’s Petition challenged the legal basis for the State to reserve its authority in a Water Quality Certification. Reserving authority is a common sense provision that would allow a change in the Certification if conditions like climate change alter the impacts of the project. PG&E’s broad legal challenge means that important improvements, like a device to reduce the heating of water in a project reservoir, could be delayed even further.
On November 9, CSPA, Friends of Butte Creek, American Whitewater, and Friends of the River commented on PG&E’s Petition for Reconsideration, largely in opposition. We urge the Board to issue an order forthwith adopting a few of PG&E’s requests while denying most of them and retaining the bulk of the Certification.
On October 9, 2015, CSPA and a broad coalition of environmental, fishing, and tribal groups secured a victory for fisheries in the long fight against suction dredging with the signing of Senate Bill 637. The new law requires that all small scale miners using motorized suction pumps obtain a Clean Water Act Permit from the State Water Resources Control Board before mining in California waterways.
A moratorium on the environmentally destructive practice has been in effect since 2009, but recent court decisions have cast uncertainty on the moratorium and prompted clarification from the legislature. Senate Bill 637 provides clear authority to the State Water Resources Control Board to permit or deny small scale suction dredge mining in order to maintain water quality standards.
Delta Independent Science Board Finds Current Draft of “Water Fix” Environmental Documents Incomplete and Vague
On September 30, 2015 the Delta Independent Science Board released its review of the BDCP/ Water Fix’s partially Recirculated Draft Environmental Impact Report and Supplemental Draft Environmental Impact Statement. Overall, the Delta Independent Science Board found the document unsatisfactory for use in evaluating the proposed Delta Tunnels and associated actions:
“We do not attempt to determine whether this report fulfills the letter of the law. But we find the Current Draft sufficiently incomplete and opaque to deter its evaluation and use by decision-makers, resource managers, scientists, and the broader public.”
The opinions from Delta Independent Science Board, comprised of prominent scientists, are expected to carry considerable weight in the NEPA and CEQA processes.
On September 29, 2015, the Environmental Water Caucus, a coalition of groups including CSPA, submitted comments on the Draft Environmental Impact Statement (DEIS) for Coordinated Long-Term Operation of the Central Valley Project and State Water Project. The EWC finds the DEIS deficient because it ignores operations during the long term drought, the waving of environmental protections including D-1641 water quality standards, and the dramatic decline of Delta Smelt, winter-run Chinook salmon and other fish species.
The EWC concludes that to comply with NEPA, the Bureau of Reclamation must revise the DEIS to analyze a broader range of alternatives, using a credible methodology for assessing environmental impacts, including cumulative impacts.
On October 6, 2015 the Environmental Water Caucus, a coalition of groups including CSPA, submitted comments on the BDCP Delta Water Tunnels project Recirculated Draft EIR/Supplemental Draft EIS (RDEIR/SDEIS). The letter draws from previously submitted comments, including a July 2014 CSPA letter, to explain how the proposed project violates the Clean Water Act.
Key points from the RDEIR/SDEIS Comment Letter:
- The Delta Water Tunnels project will violate water quality standards for flow and other parameters, preventing necessary Clean Water Act Section 401 certification.
- The project reduces Delta freshwater flow conditions in violation of CWA requirements to fully protect the most sensitive beneficial uses.
- The project increases Delta contamination, resulting in violations of pollutant criteria.
- Because the project cannot meet water quality standards, the Water Tunnels Project cannot obtain the required Clean Water Act 401 Certification it needs for a 404 permit to build the project.
- There is no defensible anti-degradation analysis.
- Modeling criteria used to simulate operation of the Tunnels prejudice potential new water quality objectives for the Bay-Delta Estuary now being developed by the State Water Resources Control Board.
- The Proposed Project is not the Least Environmentally Damaging Practicable Alternative.
The Environmental Water Caucus asks that state and federal agencies comply with the Clean Water Act and work to implement increased flows through the Delta.
On 18 September 2015, the Environmental Water Caucus, a coalition that includes CSPA, requested a 60-day extension of the public comment period on the Bay Delta Conservation Plan (BDCP)/California Water Fix Partially Recirculated Draft EIR/Supplemental Draft EIS (RDEIR/SDEIS) for the BDCP Draft EIR/EIS. The 60 days would allow more time for the 48,000 pages of material “to be read, understood, researched, and then commented upon.” It would also allow more time for the lead agencies to provide additional analysis and documentation necessary for the understanding of the proposed project and action.
The letter from EWC to Secretary of the Interior, the Regional Director of the Bureau of Reclamation, the California Secretary of Resources, and the Director of the California Department of Water Resources cites to flaws identified in the California Delta Independent Science Board’s comments on the documents, released on September 14th. The request submitted by EWC also requests release of Biological Assessments and Biological Opinions under the Endangered Species Act for both long-term impacts and construction impacts on threatened and endangered fish, wildlife and aquatic and plant species.
On 16 September 2015 the Environmental Water Caucus, a coalition of groups including CSPA, submitted a letter to Sally Jewell , Secretary of the Interior, detailing the many problems of the proposed California Delta Water Tunnel Project and urging the Secretary to show bold leadership by rejecting the proposed Delta Tunnels.
Among the many problems mentioned, the proposed tunnels would have devastating impacts on the Delta ecosystem and inhibit the Department of the Interior’s ability to comply with the Clean Water Act, Endangered Species Act, Fish and Wildlife Coordination Act and to meet trust obligations to Native Americans. Numerous agencies, including the Fish and Wildlife Service, US Geological Survey, National Academy of Sciences, National Marine Fisheries Service, and US Environmental Protection Agency, have identified serious and potentially catastrophic issues with the proposed project.
Despite these problems, state and federal officials plan to have the Delta Water Tunnels project Record of Decision ready for the approval of the Secretory of the Interior by the end of 2015. In advance of the Secretary’s decision, the US Bureau of Reclamation and the California Department of Water Resources have already petitioned the State Water Board to modify their water rights to allow the Tunnels to proceed, and have requested permits from the Army Corps of Engineers to allow tunnel related construction.
On 16 September 2015, attorneys for CSPA, CWIN and AquAlliance filed an amended lawsuit against the State Water Resources Control Board (SWRCB) seeking declaratory and injunctive relief invalidating the SWRCB’s pattern and practice policy of weakening water quality protection standards adopted pursuant to federal law and incorporated into water rights licenses and permits held by the U.S. Bureau of Reclamation and California Department of Water Resources in violation of the Clean Water Act and public trust doctrine.
Over the last two years, the SWRCB has weakened crucial flow and water quality requirements protecting pelagic and salmonid fisheries in the Bay-Delta and Sacramento River on numerous occasions. For example, in 2014, the SWRCB reduced regulatory Delta outflow by 43% and increased Delta exports by 18%. In 2015, the SWRCB reduced regulatory outflow by 78% in order to increase exports by 32%. These changes shifted more than one million acre-feet of water from fisheries protection to agricultural and urban use. As a result, Delta and longfin smelt and winter-run Chinook salmon populations have collapsed to their lowest levels and are on the verge of possible extinction.
The amended complaint asks the court to declare that the SWRCB has engaged in an illegal pattern and practice of weakening water quality standards in violation of the Clean Water Act and public trust doctrine and to preliminarily and permanently enjoin the SWRCB from their pattern and practice of weakening standards protecting the Bay-Delta and Sacramento River.
Since 2006, one of CSPA’s primary areas of effort has been to reintroduce salmon to historic habitat upstream of major Central Valley dams. Today, Central Valley salmon are confined to the valley floor: 5-10% of their historic habitat. In the face of climate change and inadequate flows due to political pressure, regulatory timidity, and frequent bad management, limiting salmon to the valley floor is a strategy for extinction, widespread extirpation, and/or reduction of salmon to a few boutique tourist attractions.
In a July 22 op-ed in the Sacramento Bee (http://www.sacbee.com/opinion/op-ed/soapbox/article28349512.html#storylink=cpy), Yvon Chouinard and Matt Stoecker criticize the Yuba Salmon Partnership Initiative (YSPI), one of the reintroduction efforts of which CSPA has been part. The YSPI is working to create a program to trap and haul adult spring-run Chinook salmon from the lower Yuba River to the North Yuba River, and to capture juveniles moving down the North Yuba River and transport them downstream to where they can gain access to the ocean. Chouinard and Stoecker say that trap and haul is the “wrong way” to recover salmon in the Yuba River, and suggest that trap and haul should be off the table everywhere. Instead, they recommend removal of Englebright Dam.
Central Valley rim dams are here to stay
Dams on the Sacramento, the Feather, the American, the Mokelumne, the Tuolumne, and other major Central Valley rivers aren’t going away. They are all too tall to put fish ladders on. Right now, wild salmon are struggling and in some cases dying on the valley floor. They are competing with fish from hatcheries; but without those hatcheries, there wouldn’t be enough salmon in California to allow any salmon fishing at all. Fish that spawn in Central Valley rivers are affected by extensive hydraulic infrastructure and by dozens of management decisions affecting water operations in the Delta, in the major rivers, and even in the smaller rivers like Butte Creek, where the largest population of Central Valley spring-run salmon is kept going by weekly and sometimes daily oversight. The whole system is managed. What can and must change is how it is managed. It’s high time that part of the management include getting wild salmon back to historic, higher elevation, cold water habitat.
In the big picture, that means getting fish past about five Central Valley rim dams. While options need to be investigated in each case, the likelihood is that this will be accomplished using trap and haul. For CSPA, the question is not whether trap and haul is morally acceptable or achieves “real recovery,” but whether we can reintroduce salmon upstream of rim dams soon enough and well enough to help save the Central Valley’s wild salmon populations. What’s not morally acceptable is to live with the way things are now. Continue reading
On 10 August 2015, CSPA, the Otter Project, Pacific Coast Federation of Fisherman’s Associations, Santa Barbara Channelkeeper, Environmental Justice Coalition for Water and an elderly woman who was deprived of drinking water because of agricultural pollution prevailed in an important lawsuit against the State Water Resources Control Board (SWRCB) and Central Coast Regional Water Quality Control Board (Regional Board) over the waiver of rules protecting fisheries, water quality and human health from highly polluted discharges from farms. Discharges from agricultural activities had resulted in endemic aquatic life toxicity in Central Coast streams and routine violations of numerous water quality standards protecting human health and the environment.
Sacramento Superior Court Judge Timothy Frawley ruled that the “waiver” failed to ensure compliance with water quality standards and failed to comply with the California Water Code, Water Quality Control Plan for the Central Coast Basin, state’s Non-Point Source Control Plan and was not in the public interest. He issued a peremptory writ of mandate compelling the SWRCB to vacate the waiver and go through the process again.
The Stanford Environmental Law Clinic, Golden Gate University Environmental Law and Justice Clinic and California Rural Legal Assistance represented CSPA and the other plaintiffs in this case.
On 6 August 2015, CSPA, CWIN and AquAlliance filed a formal protest, petition for hearing and petition for reconsideration of the State Water Resources Control Boards approval of the Sacramento River Temperature Management Plan. The protest states that the weakening of temperature criteria during critical life stages of Chinook salmon does not serve the public interest, is contrary to law and will have an adverse environmental impact. The protest begins a 90-day window for the SWRCB to reconsider or deny the protest, whereupon CSPA et al. is free to pursue the matter in court.
The protest follows a separate 3 August complaint against SWRCB and U.S. Bureau of Reclamation (USBR) filed by CSPA over relaxation of Sacramento River temperature requirements. The two actions address different administrative processes requiring different response actions by the SWRCB and USBR.
Last year, failure to maintain protective temperatures in the Sacramento River led to the destruction of 95% of winter-run, 98% of fall-run and virtually all of the spring-run Chinook salmon brood year. This year, because deliveries to Sacramento Valley water contractors had depleted the cold-water pool behind Shasta Dam, the SWRCB actually increased temperature targets to levels that are identified as lethal to incubating eggs and emerging fry.
On 4 August 2015, The California Sportfishing Protection Alliance (CSPA), California Water Impact Network (C-WIN) and AquAlliance, collectively “Petitioners,” filed a lawsuit against the State Water Resources Control Board (State Water Board) seeking declaratory and injunctive relief and a writ of mandate, under California Code of Civil Procedure, in Alameda County Superior Court. The lawsuit alleges that the State Water Board and its Executive Director violated the California Water Code, Public Trust Doctrine and a suite of environmental laws when it issued a series of Temporary Urgency Change Orders (TUCP Orders) that weakened legally adopted standards protecting water quality and fisheries.
This action is a companion to a 3 June 2015 federal lawsuit against the Department of Interior and U.S. Bureau of Reclamation for violations of the Administrative Procedure Act, Central Valley Project Improvement Act and Clean Water Act. The lawsuit asks the court to issue a writ of mandate ordering the State Water Board to vacate its TUCP Orders, to preliminarily and permanently enjoin the Board from activities undertaken pursuant to the TUCP Orders, enter a declaratory judgment that the Board has engaged in an illegal pattern and practice of adopting TUCP Orders and enjoin the Board from further engaging in an illegal pattern and practice of adopting TUCP Orders that violate the law.
“This lawsuit is an effort to prevent the extinction of fisheries that thrived for millennia. If Delta and longfin smelt and winter- and spring-run Chinook salmon go extinct, it will not be because of drought. These fish survived the great mega-droughts of the past. But they may not survive the State Water Board’s serial violations of law,” said CSPA Executive Director Bill Jennings adding, “fallowed fields will be replanted after the drought, extinct fisheries are forever lost.”
On 3 August 2015, CSPA filed a protest, objection and petition for reconsideration of the State Water Resources Control Board’s (State Board) issuance of a 3 July 2015 Order further weakening Bay-Delta water quality and flow standards protecting fish and wildlife between July and November. Over the last three years, the State Board has relaxed standards that were established to protect the environment during critical drought years 15 times. These actions have brought the Delta’s pelagic and salmonid fisheries to the brink of extinction. CSPA was the only fishing organization filing a protest and was joined by the California Water Impact Network and AquAlliance. Restore the Delta and the Bay Institute also filed protests.
CSPA Files Complaint Against State Board, Bureau of Reclamation for Violations of Laws Protecting Sacramento River Chinook Salmon
The California Sportfishing Protection Alliance (CSPA) has filed a formal complaint against the State Water Resources Control Board (SWRCB) and United States Bureau of Reclamation (USBR) for violations of the Water Quality Control Plan for the Sacramento River and San Joaquin River Basins (Basin Plan), violations of WR Order 90-05 and Sacramento River temperature requirements and for violations of the Clean Water Act (CWA), Endangered Species Act (ESA), Public Trust Doctrine and the California Constitution.
Specifically, CSPA alleges that the SWRCB has failed to implement crucial Basin Plan water temperature criteria and CWA requirements protecting water quality and fish and wildlife beneficial uses with respect to USBR’s water rights permits and licenses and has failed to take enforcement actions against USBR’s habitual violations of the Basin Plan, CWA and WR Order 90-05 temperature criteria and requirements against USBR. CSPA alleges that USBR has failed to comply with explicit temperature criteria protecting fish and wildlife beneficial uses contained in the Basin Plan, CWA and WR Order 90-05. CSPA additionally alleges that the SWRCB and USBR have failed to comply with their respective responsibilities and obligations under the ESA, Public Trust Doctrine and Article X of the California Constitution.
Should winter-run Chinook salmon, Delta and longfin smelt and potentially several other species that have evolved and thrived over millennia go extinct, it will not be because of drought. It will be because the SWRCB and USBR have refused to comply with the law.