CSPA in the News
Big Hearted River: wild-scenic designation for Mokelumne River in Amador, CalaverasJun 29, 2018 Read Online
- CSPA Sues Stewardship Council Over Revised Delta Plan
- Tuolumne River Salmon and Steelhead’s Future Under Serious Political Attack
- CSPA Presents at Salmonid Restoration Federation Conference
- Conservation Groups Submit Complete Flow Recommendation for Tuolumne River
- CSPA Comments on Sites Reservoir Project
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On 28 May 2018, the California Sportfishing Protection Alliance joined with the California Water Impact Network and AquAlliance (CSPA et al.) in filing a lawsuit against the California Delta Stewardship Council (Council) for amending the state’s Delta Plan to facilitate construction of two massive tunnels to divert Sacramento River water directly to Southern California. The lawsuit charges that the council violated numerous laws, including the Delta Protection Act, County of Origin Statutes, Area of Origin Protection Statutes and the California Environmental Quality Act (CEQA) in providing a preference for the tunnels over the restoration of the Delta. The Council’s action will cause enormous harm to fish, wildlife, water quality and the people who live in and depend upon the Delta.
CSPA Executive Director Bill Jennings observed that, “a seriously degraded estuary, suffering from a critical lack of flow, cannot be protected or restored by further diverting millions of acre-feet of water under the Delta for export to Southern California. The amended Delta Plan is an obituary for fisheries, not a path to restoration.
The complaint asks the court to vacate and set aside approval of the Delta Plan Amendments and certification of the Environmental Impact Report (EIR) and to issue a stay, temporary restraining order, preliminary injunction and permanent injunction prohibiting any actions by the Council to facilitate the tunnel project until the Council has fully complied with all requirements of the Delta Reform Act, CEQA and all other applicable state laws, policies and regulations.
In 2009, the Delta Reform Act established the Council and required it to develop a Delta Plan that would meet the coequal goals of protecting the Delta’s fisheries and ecosystem while promoting water supply reliability. The Council adopted a Delta Plan in 2013 and CSPA et al., among others, promptly filed a lawsuit against the Plan in Sacramento Superior Court. CSPA prevailed in 2016 when the Court invalidated the Delta Plan for failing to comply with the Delta Reform Act.
The California Department of Water Resources (DWR) approved the Delta tunnels project in 2017. The Council, dominated by Southern California members, subsequently approved new amendment to the Delta Plan in order to expedite the project in 2018 and this approval led to the current litigation. CSPA et al. is also in litigation with DWR over the 2017 approval of the tunnel project and is a major party in the current evidentiary hearing before the State Water Resources Control Board regarding DWR and U.S. Bureau of Reclamation’s request to modify their water rights permits to allow project construction.
Last week, San Joaquin Valley Republican Congressman Valadao attached an amendment to the appropriations bill for the Department of Commerce that would prohibit the National Marine Fisheries Service (NMFS) from participation in the licensing proceedings of the Don Pedro and La Grange hydroelectric projects on the Tuolumne River. The goal of the amendment is to destroy any future chance for salmon and steelhead passage on the Tuolumne River.
There was little notice of this amendment. However, in less than a day, several organizations including CSPA submitted a letter to the House Appropriations Committee opposing the amendment. On May 17, the amendment passed in committee. The bill could go to the floor of the House of Representatives within a month.
Tuolumne River Salmon; photo by Tuolumne River Trust
Here is the text of the amendment:
None of the funds made available by this Act shall be used by the Department of Commerce to prepare, finalize, implement, or enforce recommendations, conditions, or prescriptions, or reserve authority related thereto, pursuant to authorities provided to the Department of Commerce under Sections 10 and 18 of the Federal Power Act (16 U.S.C. §§ 803 and 811) as related to the Don Pedro (P-2299-082) and La Grange (P-14581-002) hydroelectric projects along the Tuolumne River, California.
In the opposition letter, CSPA and others wrote that this rider would undermine the Federal Power Act (FPA) by preventing implementation of fisheries protections under the FPA on a single river. It would substitute political opinion for the findings of recognized agency experts. It would also improperly implement a policy decision under the guise of appropriations.
FPA Section 18 allows NMFS to prescribe fish passage at hydropower facilities under certain conditions, or to reserve its authority to do so. NMFS has reserved this authority on the Tuolumne River until 2025. In addition to preventing NMFS from supporting potential future fish passage, the Valadao rider would prevent NMFS from commenting on the forthcoming Draft Environmental Impact Statement and from participating in an upcoming required meeting with staff from the Federal Energy Regulatory Commission.
In further opposition to the amendment, CSPA’s Chris Shutes and representatives from other groups spoke at the meeting of the San Francisco Public Utilities Commission on May 22. With water and power facilities of its own on the Tuolumne River, the City and County of San Francisco has been active in the licensings of the Don Pedro and La Grange projects. CSPA and others asked the San Francisco Commission to agendize this issue for its next meeting and to direct staff to prepare a resolution of opposition to this amendment.
Preventing NMFS from doing its job on the Tuolumne River licensings would be bad for the river and would undermine environmental regulation. It would set a precedent that could encourage every hydropower operator to request special legislation for its own issues. CSPA will continue to closely monitor and take action on future developments.
 The other organizations were Friends of the River, Tuolumne River Trust, Golden Gate Salmon Association, American Sportfishing Association, Golden West Women Flyfishers, and Pacific Coast Federation of Fishermen’s Association.
Chris Shutes, CSPA’s FERC Projects Director and Water Rights Advocate, gave a presentation at the 36th Annual Salmonid Restoration Federation Conference recently held in Eureka, CA. The SRF Conference is the largest salmon restoration conference in California and brings together scientists, conservationists, engineers, students and tribal members. The theme of this year’s conference was The Art and Science of Watershed Restoration.
Chris’s presentation was entitled: Creating Regulatory Process from Scratch: Lessons from Money-Losing Power Projects on Butte Creek and Other Northern California Streams. It was included in a session of multiple presentations covering the topic of Adapting Aging Infrastructure to Sustain Listed Salmonids.
Chris described how some California hydropower projects have become uneconomic given their age and the changing energy markets. As an example, PG&E decided to sell or decommission its DeSabla-Centerville Project on Butte Creek in 2017, just as the process of relicensing the Project was almost complete. The Project’s canal system brings water from the West Branch Feather River to Butte Creek. The combined flow in the creek supports the only currently viable run of Central Valley spring-run Chinook salmon.
While there is a clear process to relicense ongoing hydro projects that allows broad public participation, there is no set process to transfer or decommission hydro projects, and no clear avenues for public participation. The presentation discusses the efforts of stakeholders including resource agencies, environmental and fishing groups, local residents, water purveyors and hydropower developers to work together to advance various stakeholder goals, including the protection of salmon in Butte Creek.
Here is the complete presentation: Creating Regulatory Process CS SRF 041418
CSPA and nine other Conservation Groups filed extensive comments and recommendations January 29, 2018 for flow requirements and non-flow measures for the lower Tuolumne River. The filing is an important milestone in the multi-year licensing process of the Don Pedro and La Grange dams owned by Turlock Irrigation District and Modesto Irrigation District. The comments make environmental recommendations and discuss legal requirements that the Federal Energy Regulatory Commission (FERC) must consider in evaluating license conditions for new hydropower licenses.
In their 124-page submittal, the Conservation Groups provide a detailed flow recommendation for the lower Tuolumne River. The recommendation modifies the State Water Resources Control Board’s plan to require the release of a percent of the unimpaired flow from February through June. CSPA used a hydrological model to develop the recommendation on how FERC and the State Water Board could balance flow, irrigation and municipal water supplies, and reservoir storage. The recommendation has specific provisions for droughts. It also proposes that the City of San Francisco fund groundwater recharge facilities for the irrigation districts in order to meet the City’s flow obligations for the river. With these new facilities, the irrigation districts could maintain groundwater levels with less reliance on water-intensive flood irrigation.
The Conservation Groups’ filing also recommends non-flow measures to create floodplain habitat, fill in dredger holes, replenish spawning gravel, and place large wood in the lower Tuolumne River.
The districts have 45 days to respond to all comments filed with FERC. The next major step in the relicensing process will be FERC’s preparation of the Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA).
The Conservation Groups include CSPA, Tuolumne River Trust, Trout Unlimited, American Rivers, American Whitewater, Merced River Conservation Committee, Friends of the River, Golden West Women Flyfishers, Central Sierra Environmental Resource Center, and Tuolumne River Conservancy.
CSPA, AquAlliance and the California Water Impact Network submitted comments on January 12, 2018 on the proposed Sites Reservoir Draft Environmental Impact Report/Draft Environmental Impact Statement (DEIR/DEIS). The proposed Sites Project would create a $4 billion reservoir outside of Maxwell, Colusa County, in the Sacramento Valley. The reservoir would be built “off stream” in a valley and would store up to 1.8 million acre-feet of water. The reservoir would divert flows from the Sacramento River, mostly in winter.
CSPA finds the DEIR/DEIS is deficient for multiple reasons.
The DEIR/DEIS does not fully describe proposed Project operations, who will operate the project and to whom project operators will be held accountable. It does not analyze alternative operational scenarios or analyze their impacts. It does not analyze operations under alternative regulatory constraints, such as constraints more stringent than existing inadequate regulatory constraints for the Sacramento River and the Bay-Delta estuary.
Project proponents argue that the Project will allow greater flexibility for operation of the State Water Project (SWP) and Central Valley Project (CVP). However, the DEIR/DEIS does not describe how operators will integrate the operation of Sites Reservoir with the operation of the State Water Project and Central Valley Project. The discussion of water rights in the document is muddled and perfunctory and inspires more questions than it provides answers.
The Sites Authority has marketed its Project to the California Water Commission and others as environmentally beneficial. As stated in CSPA’s comments, “the objective opportunity to create environmental benefits does not in itself create those benefits.” Assuming there are environmental benefits to be had, they would require a clear project description, commitments and enforceability. The Sites DEIR/DEIS is several steps removed from all of these. As they stand today, the Sites Project is largely conceptual, its environmental benefits are at best aspirational, and its environmental document is deficient and must be recirculated.
On November 30, CSPA filed testimony and exhibits for the State Water Board’s hearings on the Delta Tunnels (“WaterFix”). This new testimony is for Part 2 of the hearings: impacts to fish and wildlife, recreation, and other Public Trust values. Some of the highlights are described below.
CSPA’s biologist Tom Cannon presents thirty pages of testimony on how the state and federal water projects affect fish today and how they would affect fish with the tunnels in place. He supports his testimony with 60 exhibits. Tom describes the conditions that Delta and Central Valley fish need to recover. The tweaks that WaterFix proponents propose to make to existing inadequate protections for fish aren’t even close.
CSPA’s Executive Director Bill Jennings describes what happened to fish and water quality over the last 50 years and the failure to establish enforceable measures to protect them. He discusses the collapse of Central Valley fisheries and the history of disastrous decisions by the State Water Board and the fish agencies during this collapse. The Board must define and implement a methodology to balance the public trust with other uses of water, using information it already has gathered to set the flows necessary to restore Delta fisheries.
CSPA’s advocate Chris Shutes reviews the recommendations that the fish agencies made in the Delta flow criteria proceeding in 2010. Since the fish agencies aren’t showing up in the WaterFix hearings, the State Water Board should give great weight to what those agencies said when they did. The Board needs require carryover storage numbers for Trinity, Shasta, Oroville and Folsom reservoirs, so that adequate Delta flows don’t take water away from fish upstream.
Longtime advisor to CSPA Dr. G. Fred Lee discusses how the new WaterFix diversion will reduce the amount of Sacramento River water entering the Central Delta through Turner Cut. This change will reduce the dilution of San Joaquin River water in the Central Delta and thereby adversely impact fisheries, recreation, and aesthetic aspects of water quality in the Central Delta.
Marc Del Piero, former “attorney member” of the State Water Board, relates how earlier Boards established a “formula” in water rights proceedings in order to protect public trust resources. The current Board has departed from that formula. He calls WaterFix a “‘bait and switch’ scheme that results in innocent residential customers being unknowingly compelled to pay for and subsidize the infrastructure expenses of future private developers.”
Felix Smith, former U.S. Fish & Wildlife Service biologist and whistle-blower, recalls the history of the public trust doctrine as it has applied to California water law. He concludes “Trustee agencies have an affirmative duty to manage public trust assets.” This means that the Water Board can and should impose conditions on the state and federal projects that relate not only to proposed project additions, but to existing facilities and operations.
Jerry Neuburger, past and present chair of Delta Fly Fishers, provides a personal fifty-year history of striped bass fishing in the Delta. The great fishery of his youth led to a lifelong investment in experience, boats and equipment. In 2006, Jerry took up guiding, even though the fishery was clearly in decline. Jerry tells the story of how over the last few years, much of the striper fishery and the businesses that supported it have faded into the Delta sunset.
Dan Bacher is editor of the Fish Sniffer magazine, a bait shop staple for countless anglers. Dan paints the picture of the decline of stores that carried his publication and that advertised in it. Another angler with thousands of days fishing the Delta and it tributaries, Dan describes the fishing opportunities whose loss coincided with increased Delta exports. The testimony includes a personal account of advocacy for protection of winter-run salmon.
Dan Hurley is a fourth generation member of a family in Stockton that fished the Delta commercially until 1958. Dan has written over 2000 fishing reports since 2005. In addition to his own list of lost businesses, Dan talks about how fish guiding in the Delta has become marginal or simply unsustainable. Most fish are gone. Almost all the big fish are gone. Many of the great spots of the past are buried under water hyacinth.
Dave Fries, former professor of medicinal chemistry and longtime advisor to CSPA, has sailed sailed the Delta in a sailboat over decades. He has seen worsening of water quality and wildlife habitat. In particular, Dave speaks of the toxic algae blooms and weed-choked waterways during the 2015 drought. If WaterFix goes forward, construction impacts from barges and dredges will limit boating opportunities, and large areas of wetlands will be filled with tunnel muck.
Tom Stokely, longtime Trinity River advocate, speaks of the effects on both rivers of moving Trinity River water into the Sacramento River. He also talks of how using Trinity River water to irrigate the western San Joaquin Valley leaches selenium out of the ground and into the San Joaquin River and the Delta.
In addition to CSPA witnesses and exhibits, CSPA’s partners AquAlliance and the California Water Impact Network (C-WIN) submitted testimony, and some of their witnesses will appear in the hearing in panels with CSPA witnesses. AquAlliance’s witnesses include Kit Custis (hydrogeologist speaking of groundwater effects of Delta tunnels), Barbara Vlamis (also testifying on groundwater), Jim Brobeck (speaking of Chico groundwater loss), Dr. Don Hankins (looking at the Delta and the proposed tunnels from the perspective of the Mikwo culture) and Trina Cunningham (speaking of the Maidu view of the Feather River and points downstream). C-WIN’s witnesses are economist Dr. Ed Whitelaw (testifying on how to balance the public trust), and Arne Sjovold and Aaron Budgor (joint testimony on both Delta hydrology and how the Santa Barbara extension of the State Water Project was high cost and low benefit).
Up till now, CSPA has had no financial resources to pay its witnesses. We now enter weeks of hearings that require careful attention, after which CSPA will need to develop further testimony to rebut tunnel proponents. We know we can never compete with the water contractors economically. But in this David and Goliath battle, we can, must, and do hold our own. CSPA desperately needs your check to help us remain effective. Please make a generous end-of-year contribution to CSPA today.
CSPA Delta Tunnels Part 2 Testimony Library Below
Potter Valley Project Dam Relicensing – Second Comment Letter Submitted to FERC Urging Dam Safety Considerations
In early November, California Sportfishing Protection Alliance, Friends of the River and American Whitewater filed a comment letter with FERC (Federal Energy Regulatory Commission) in response to their Scoping Document 2 for the Potter Valley Project. The letter calls for FERC to change its policy of not considering dam safety and infrastructure adequacy in relicensing. With the letter, CSPA and its partners filed The Oroville Dam 2017 Spillway Incident and Lessons from the Feather River Basin (“Oroville Report”) which bears on issues raised in the comments.
The comment letter requests that FERC convene a workshop to take input from interested entities regarding the incorporation of dam safety and infrastructure adequacy into the relicensing process, as well as how to address attendant issues relating to Critical Energy Infrastructure Information.
In response to Scoping Document 1 for the Potter Valley relicensing, CSPA, AW, and FOR, together with a number of other Conservation Groups, had commented on the need to include analysis of dam safety, infrastructure issues, and climate change in the Environmental Impact Statement that the Commission will prepare for the relicensing
Subsequently, FERC wrote in Scoping Document 2 that the Commission does not address dam safety and infrastructure adequacy in relicensing. However, the current policy as outlined in Part 12 of FERC regulations failed dramatically at Oroville, despite detailed warnings in relicensing of infrastructure inadequacy more than ten years prior to the 2017 Oroville Spillway events. The comment letter urges changes to the current inadequate policy forthwith.
Much of California’s dam and flood infrastructure is obsolete and falling apart. It needs to be fixed now, says a report entitled “The Oroville Dam Spillway Incident and Lessons from the Feather River Basin.” The authors of report are from CSPA, Friends of the River, South Yuba River Citizens League, and American Whitewater. These organizations warned more than a decade ago that the Oroville Dam’s emergency spillway was completely inadequate.
DWR still needs to build a complete emergency spillway at Oroville, say the groups. But this is only the start. The report makes dozens of recommendations for bringing existing waterworks into the 21st Century, in an extensive review of California dams, flood manuals, floodplains, and regulatory delay.
On 13 September 2017, the California Sportfishing Protection Alliance, California Water Impact Network, AquAlliance and the California Indian Water Commission challenged the legality of proposed bonds that will be used to pay for the construction of the Department of Water Resources’ (DWR) WaterFix project. The project would construct twin 35 mile-long tunnels under the Delta to divert millions of acre-feet of Sacramento River water to cities and farms in southern California. It would seriously degrade Delta water quality and threaten the survival of numerous fish species in the Central Valley.
CSPA’s answer and response to DWR’s Complaint for Validation contends that the project cannot secure all if its approvals, a precondition of issuing more than $11 billion in bonds, and that DWR is seeking to illegally shift a substantial share of the project’s costs to state taxpayers, rather than ensuring that the recipients of the water be responsible for all costs, as the law requires. A Validation Complaint is a legal maneuver that entails filing an action against virtually everyone in the state that, if successful, would eliminate all future legal challenges to the financing of the project.
The answer and response seeks a court order declaring the bonds invalid, which would prevent DWR from securing required funding for the project to go forward. A number of other public interest organizations, water agencies, municipalities and counties also joined in responding to the Validation Complaint.
In a hundred-plus page filing with the Federal Energy Regulatory Commission (FERC) on August 25, 2017, CSPA and other members of Foothills Water Network coalition filed recommendations for improving flow and habitat conditions in the lower Yuba River. The filing responds to the “Notice of Ready for Environmental Analysis,” a major milestone in the relicensing of the Yuba River Development Project, owned and operated by Yuba County Water Agency (YCWA). The proceeding has been underway for six years.
The filing describes how CSPA developed a flow proposal for the lower Yuba River based on a requirement to release a percent of unimpaired flow during the months of February through June. This approach was consistent with the State Water Board’s 2010 Delta Flow Criteria Report. The filing describes CSPA’s use of the water balance model developed by YCWA to develop this proposal for improving flows while balancing water supply needs and reservoir storage. In a separate filing on August 25, staff from the State Water Board recommends that FERC analyze the proposal CSPA developed on behalf of the Network.
Ultimately, the filing by CSPA and the Network supports a similar but differently organized flow regime proposed by the California Department of Fish and Wildlife (CDFW) and the US Fish and Wildlife Service (USFWS). Modeling shows that the CDFW/USFWS proposal would release virtually the same percent of unimpaired flow as the CSPA/Network proposal would be able to release, given the limitations of YCWA’ infrastructure to release water.
The Network’s filing also features extensive analysis and rationale for proposed improvements to the physical habitat in and along the lower Yuba River. These measures are designed to work in concert with proposed flow measures to improve rearing habitat for juvenile salmon.
The comment letter discusses a dozen-odd additional issues and also describes multiple areas in which the Network and resource agencies reached agreement with YCWA.
CSPA has joined a broad-based ad hoc coalition of entities in an August 8, 2017 letter to the Federal Energy Regulatory Commission (FERC) that requests a delay in the issuance of a new hydropower license for the Oroville Facilities Project. The signers of the letter include two elected state officials, two counties, two chambers of commerce, six towns and cities, several business groups, and six other fishing, environmental and recreational groups, plus a number of individuals. The signers of the letter are entities that were affected by the February 2017 Oroville Dam spillway incident and/or who were involved in the Oroville Dam relicensing proceeding.
In February, 2017, most of the main spillway at Oroville Dam failed, sending water cascading onto rock and dirt to the side of the spillway. A series of events then led DWR to use the dam’s “emergency spillway,” a concrete lip on the reservoir that directs spilling water onto an unlined dirt and rock hillside. Erosion on the hillside downstream of the emergency spillway threatened to undermine the concrete lip and send the top thirty feet of the full reservoir down the face of the dam all at once. Potentially, this could have flooded the City of Oroville below and cities and land downstream. In the face of this danger, approximately 188,000 people in Oroville and downstream communities in Butte County, Yuba County and Sutter County were evacuated. Reconstruction at the Oroville Facilities is now underway, but it will take at least through 2018 to complete.
The letter asks FERC to delay issuing a new license until stakeholders and the dam’s operator – the California Department of Water Resources (DWR) – can better understand the causes of the Oroville Dam spillway incident. FERC has tasked a Board of Consultants and Forensic Team with determining the cause of the spillway incident and informing the reconstruction effort. The letter’s authors state that analysis of the spillway incident may change the underlying assumptions of the pending license, and that it would not be prudent at all for FERC to issue a renewed license without the benefit of understanding the incident.
CSPA, along with several other Conservation Groups, submitted extensive comments in early August to the Federal Energy Regulatory Commission (FERC) in the just-initiated relicensing of two PG&E dams on the mainstem Eel River. Cape Horn Dam (built 1908) and Scott Dam (1922) are part of PG&E’s Potter Valley Project. The Project’s main feature is the diversion of water through a tunnel from the Eel River to the Russian River watershed. The Project’s license expires in 2022. At present, PG&E proposes to relicense the Project with no change in operations.
The Conservation Groups commented on FERC’s Scoping Document 1 (SD1) that describes the scope of the topics FERC will analyze in an Environmental Impact Statement later in the process. The groups also commented on PG&E’s Pre-Application Document, or PAD, in which PG&E presents factual information about the Project that PG&E believes to be relevant. In addition to describing shortcomings in those two documents, the Conservation Groups submitted seven requests for studies to evaluate various issues related to the Project.
The Eel River is California’s third largest watershed and flows more than 200 miles from the headwaters above Lake Pillsbury in Lake County to the ocean. Scott Dam has no fish passage facilities and thus prevents migrating salmon and steelhead from reaching the upper watershed of the mainstem Eel River. One of the major themes in the comments is that FERC must evaluate dam removal and also decommissioning of the Project.
The Conservation Groups also argue that dam safety issues are relevant to FERC’s consideration of a new Project license. However, FERC has historically not considered dam safety in relicensing proceedings. Design and problems from initial construction are known to exist at Scott Dam. PG&E would have limited ability to release water if the dam’s low-level outlet failed. At the top of the dam, PG&E must operate all but one gate by hand to regulate high flow events. Following events in Oroville in February, 2017, FERC will need to re-evaluate whether to address these and other dam safety issues in the relicensing process.
The principal driver of the Potter Valley Project is not the small and irregular amount of electrical power it produces. Rather, it is the water diverted to the Russian River through the Project powerhouse for irrigation in Potter Valley and along the Russian River downstream of Lake Mendocino. Tens of thousands of acre-feet of water are unaccounted for every year in the Russian River watershed. Conservation groups question how much Eel River water is used to supply unauthorized water diversions along the Russian River.
FERC is scheduled to issue a Scoping Document 2 by September 18, 2017. PG&E is required to file a Proposed Study Plan on the same date. A Study Plan meeting is required in October, 2017. Therefore, stay tuned for further information about this important relicensing proceeding which provides an opportunity to improve fish populations on the Eel River.
 Other groups included American Whitewater, California Trout, Friends of the Eel River, Friends of the River, Native Fish Society, and Trout Unlimited and the Redwood Empire Chapter of Trout Unlimited
On 21 August 2017, the California Sportfishing Protection Alliance and a coalition of environmental groups filed a lawsuit against the Department of Water Resources (DWR) over the inadequacy of its 80,000 plus page Environmental Impact Report (EIR) for the WaterFix project. The project envisions two 35 mile-long tunnels under the Delta to siphon millions of acre-feet of water from the Sacramento River for delivery to southern California cities and farms.
CSPA was joined in the lawsuit by AquAlliance, California Water Impact Network, Center for Biological Diversity, Center for Food Safety, Friends of the River, Friends of Stone Lakes National Wildlife Refuge, Planning and Conservation League, Restore the Delta, Save Our Sandhill Cranes, and Sierra Club California. In all, seventy-eight different plaintiffs, grouped together in twelve lawsuits representing municipalities, counties, water agencies, fishing and environmental organizations sued over the adequacy of the EIR.
The CSPA complaint states that the project approval violates numerous provisions of the California Environmental Quality Act, Delta Reform Act, California’s “Fully Protected Species” statutes, and the California Public Trust Doctrine.
The water diversions would significantly degrade environmental conditions in the Delta by reducing flows, increasing the concentration of salinity and numerous pollutants, damaging the food web and promoting harmful algal blooms. They would prevent flows needed for fish habitat and water quality, during critical life stages for protected fish species including chinook salmon, steelhead trout, green sturgeon, and delta and longfin smelt.
California Sportfishing Protection Alliance Executive Director Bill Jennings observed, “The environmental impact report is an 80,000 page omelet of distortion and half-truth pretending that massive water diversions won’t harm this severely degraded estuary. The Delta has already been deprived of most of its natural flow. This project would push native fisheries into extinction and significantly diminish the quality of water to farmers, municipalities and the environment.”
CSPA Joins in Pattern & Practice Lawsuit: State & Regional Water Boards Fail to Protect Water from Agricultural Pollution
CSPA, in coalition with other environmental and trade organizations, filed a lawsuit against the State Water Resources Control Board and the Central Coast Regional Water Quality Control Board asserting the Boards have failed to protect clean water from agricultural pollution. The lawsuit filed in early August, claims that the boards have repeatedly failed to enforce clean water rules designed to limit pollution from excess fertilizer, pesticides and manure. This unchecked agricultural pollution is washing into streams and ultimately out to sea, and is seriously contaminating the state’s groundwater.
This dereliction of duty by the Boards jeopardizes the safety of public drinking water, as well as the health of rivers, coastal waters and fisheries.
Agricultural pollution is the primary culprit for unsafe water that burdens both urban and rural communities, sickening people and driving up water treatment costs. Additionally, this pollution threatens fishing, tourism, and recreation jobs and businesses.
The coalition of conservation, environmental justice and industry groups believe “[T]he State Board has engaged and continues to engage in a pattern and practice of systematically failing to comply with its legal obligations under state law…”
In 2013, the Central Coast Regional Water Quality Control Board adopted its first “Conditional Waiver of Waste Discharge Requirements for Irrigated Agriculture” (Ag Order), but acknowledged it was ineffective since it didn’t include conditions consistent with typical orders to control waste discharges from industries or activities affecting water quality in a similar level of severity. A coalition of groups, including CSPA, challenged the 2013 Ag Order in court and won. The judge ordered the State and Regional Boards to create a new Ag Order, consistent with the law. The State and numerous agricultural groups appealed the ruling which is currently awaiting a court date.
Knowing that the 2013 Ag Order was legally deficient in many ways, the Central Coast Regional Board renewed a nearly identical Ag Order in March 2017. A coalition of organizations petitioned the regional decision to the State Board which declined to review the petition. As a result, the coalition proceeded with the current pattern and practice lawsuit. The State Board’s failure to review and correct the deficiencies in the 2017 Ag Order is illustrative of an ongoing pattern and practice whereby the State Board, through action or inaction, has declined and continues to decline to exercise its statutory oversight responsibility to ensure that agricultural discharges throughout the State comply with applicable laws.
The organizations taking action with CSPA include The Otter Project and Monterey Coastkeeper, Environmental Justice Coalition for Water, Santa Barbara Channel Keeper, Pacific Coast Federation of Fishing Associations, Orange County Coastkeeper, Inland Empire Waterkeeper, Institute for Fisheries Research and California Coastkeeper Alliance.
The Press Release is available here and the compliant can be viewed here.
On 27 July 2017, the California Sportfishing Protection Alliance, joined by the California Water Impact Network and AquAlliance, filed a motion for summary judgment in our pattern and practice and public trust lawsuit against the State Water Resources Control Board. The lawsuit was originally filed in August 2015 and following a series of procedural motions was scheduled for trial this coming November.
CSPA et al. seeks an order from the court that there are no triable issues of material fact and that we are entitled to judgment as a matter of law on our claims that the State Water Board adopted patterns and practices of violating their mandatory duties under the Public Trust Doctrine and the federal Clean Water Act to maintain minimum adequate flows and water quality for the protection of fisheries. If CSPA prevails on its summary judgment motion, the scheduled trial will be unnecessary. A hearing on the matter is tentatively scheduled for 10 October 2017.
The lawsuit stemmed from the State Water Board’s repeated weakening and waiving of legally adopted water quality and flow standards critical to fisheries in the Delta and the Sacramento and San Joaquin Rivers. These illegal actions followed requests by the Department of Water Resources and U.S. Bureau of Reclamation to relax standards whenever compliance conflicted with the need to divert and export water. The serial weakening of standards is a major reason the already degraded anadromous and pelagic fisheries of the Central Valley have continued to decline.
Opposing Senate Bill AB 623 – Needs Further Refinement to Ensure Prevention of Further Water Pollution
CSPA joined with other environmental groups in submitting a letter opposing SB 623 unless the bill is significantly amended. We strongly support the stated goals of SB 623 – The “Safe and Affordable Drinking Water Fund Bill” – to provide clean drinking water to communities in need and simultaneously working to reduce and eliminate water pollution. However, we have concerns with SB 623 since recent amendments create a regulatory framework that could perpetuate, rather than mitigate, practices that result in polluted ground and surface waters.
The bill would establish a new Safe and Affordable Drinking Water Fund in the California state treasury to assist low-income communities and individual domestic water well users whose drinking water is contaminated at levels that exceed drinking water standards.
But after legal analysis, we believe the current language offers polluters a dangerously broad “safe harbor” from enforcement of water pollution laws by the State and Regional Water Quality Control Boards. This would have the consequence of preventing the enforcement actions that are currently helping to provide safe, clean, and affordable interim drinking water to impacted communities and households.
Under the bill’s current language, the public has no idea how much money a farm operation must pay into the Fund in order to obtain broad enforcement immunity, or how much funding will be available from such sources to carry out the replacement water objectives. Additionally, the recent amendments to SB 623 create a pay-to-pollute framework that allows agricultural polluters to continue polluting practices. By exempting agricultural operations that pay an “applicable fee” and “enroll” under a Waste Discharge Requirement or waiver, the bill would effectively shield these operations from any realistic possibility of enforcement.
The Regional Water Boards and the courts have recently begun to hold agricultural dischargers accountable for their pollution and to require them to clean up the pollution they have caused. Stepping onto the slippery slope of an enforcement safe harbor and exempting these polluters from state water quality laws that apply to all other industries, in return for unspecified payments into a drinking water fund, sends the wrong message. It undermines decades of ongoing work in courts and by advocacy organizations and water agency employees. Shielding polluters from the tools that are finally working is antithetical to our shared goal of clean water.
More time, analysis, and discussion with experts and a broader set of stakeholders is needed. The opposition letter requests that the bill be made a two-year bill in order to incorporate the specific language necessary to ensure safe and affordable drinking water for all Californians.
Here is the full text of the letter and the Press Release:
On July 5th, CSPA joined with other environmental organizations in opposing AB 313 which would impede the orderly administration of water rights in California. It threatens water rights holders, California’s rivers and fisheries and the communities and jobs that depend on healthy fisheries. The letter was sent to Senator Jackson and members of the State Senate Judiciary Committee. The bill, introduced by Assemblyman Adam C. Gray (D-Merced), proposes to unnecessarily and imprudently restructure water rights hearings.
AB 313 would limit the SWRCB’s authority to enforce violations of water rights through administrative civil liability. Existing law authorizes the board to issue an order to a person to cease and desist from violating, or threatening to violate, certain requirements relating to water use, including diverting or using water, other than as authorized.
This bill would establish a new Water Rights Division within the Office of Administrative Hearings. The bill would require a hearing concerning the administrative civil liability to be held before the division and overseen by an administrative law judge. Administrative hearings regarding water rights are complex matters that require expertise. The State’s existing administrative law judges currently lack expertise on water rights which is necessary to effectively administer water rights. Members of the SWRCB are required to represent a diversity of expertise and interests to ensure they represent the public interest and are qualified to serve.
Under the proposed legislation’s newly-created Water Rights Division, the existing enforcement process would be fragmented and create duplicative and overlapping processes. This change to existing law would increase costs both for the State and water rights holders who are subject to the enforcement. AB 313 is estimated to increase State costs by more than $1.4 million annually due to duplicative hearings and a more inefficient enforcement process.
CSPA presented oral scoping comments on June 28, 2017 for the relicensing of the Potter Valley Project in Mendocino and Lake counties. The small 1900’s-era hydroelectric project generates power with water that is piped from the upper mainstem Eel River to the upper Russian River watershed. The project’s Scott Dam, which forms Lake Pillsbury in Lake County, blocks passage for salmon and steelhead to the headwaters of the mainstem Eel River. In the past decade, the project has become much more valuable for the water it delivers than the power it produces.
In addition to issues specific to the project, the relicensing poses important legal and policy issues about relicensing generally and the relation of relicensing to water supply. It is also the first relicensing in California since that has begun since the February, 2017 spillway incident at Oroville Dam, and may offer insight into whether the Federal Energy Regulatory Commission will consider dam safety in future relicensings. In addition, it is the first relicensing that PG&E has initiated since PG&E withdrew its license application for the DeSabla – Centerville Project in Butte County in February, 2017.
On June 13, 2017, PG&E and a group of stakeholders including CSPA dedicated the Rock Creek Bench recreation access and parking area just downstream of Rock Creek Dam on the North Fork Feather River. The facility will provide safe access to the river for whitewater boaters, who previously had to park on the far side of the highway that runs next to the river and cross the highway with kayaks and gear. Because PG&E has now agreed to keep the area open during the summer recreation season, the facility will also provide parking for anglers and access to a long riffle and other fishy-looking water that was previously very cumbersome to reach. PG&E has committed to maintaining a portable restroom at the site while it is open.
CSPA’s Chris Shutes (center) with other members of the Rock Creek – Cresta Ecological Resources Committee and additional people who worked to complete the Rock Creek Bench project. June 13, 2017
The Rock Creek Bench was the result of a multi-party negotiation that took place within the Ecological Resources Committee for PG&E’s Rock Creek – Cresta Hydroelectric Project. The Committee implements the settlement agreement that CSPA and others reached in the early 2000’s and that the Federal Energy Regulatory Commission incorporated into its license for the Project. CSPA’s Chris Shutes gave a brief talk at the dedication of the facility, which describes the genesis of the facility and the negotiation. The text of that talk is here.
In the high flows of Water Year 2017, general fishing access to the North Fork Feather River has substantially improved. The high flows blew out much of the willows, alders and other vegetation along the stream banks that had previously made fishing difficult. This should be a good year for angling on the North Fork Feather.
The Delta Stewardship Council is in the process of revising the Delta Plan and related environmental documents following the successful litigation by CSPA and others in vacating the previous Plan. Unfortunately, the Council is again ignoring the strict requirements for a Delta Plan mandated by the State Legislature in the 2009 Delta Reform Act. For example, the Council is proposing to adopt an isolated dual conveyance system to transport Sacramento River water under the Delta through twin tunnels to ensure water supply reliability. They propose to do so without serious consideration of alternatives and before determining how much water is necessary to restore and maintain the Delta’s degraded ecosystem and public trust resources and before project-level environmental review has occurred.
In a series of comment letters and appearances in public meetings, a coalition of environmental and fishing organization, including CSPA, have informed the Council that planning must occur before plumbing and that a reasonable range of alternatives to tunnels must be fully evaluated before any final decision is made. Failure to do so will inevitably lead to another round of litigation.