CSPA in the News
A Fight Between Humboldt Stakeholders Over the Klamath Dams is Impacting Environmental Protections Across the CountryJun 12, 2019 Read Online
Committee votes to move Bernhardt’s nomination as Interior Secretary to full Senate voteApr 4, 2019 Read Online
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WaterFix version 1 is hung out to dry. There have been welcome announcements by the Newsom administration of a clean start on California water policy. But on June 10, 2019, the Department of Water Resources posted “Why Delta Conveyance” to one of its many webpages, linked in DWR’s email listserve DWR Water News. It appears that some of the messengers at DWR have set the dial back to the spin cycle.
Fast spin number 1 in “Why Delta Conveyance” reads:
“According to the United States Geological Survey, there is a 72% chance of a 6.7 or greater magnitude earthquake occurring in the Bay Area by 2043 that could cause levees in the Delta to fail, crippling the state’s ability to deliver clean water.”
Let’s unpack that.
- “There is a 72% chance of 6.7 or greater magnitude earthquake occurring in the Bay Area by 2043.”
Okay, that a plausible prediction, but we don’t have the reference from USGS. It would be really useful to have the reference, to see exactly what USGS predicted. A reasonable suspicion is that the 72% figure refers to the likelihood of an earthquake occurring somewhere in the Bay Area, not somewhere that would specifically affect levees in the Delta.
- A magnitude 6.7 earthquake “could cause levees in the Delta to fail.”
It is believable that an earthquake in the wrong place could cause levees to fail. What’s not believable is that there’s a 72% percent chance that the predicted 6.7 or greater magnitude earthquake will be in that place. But that’s how that statement reads, or at least, that’s how one could read it. If there is a report that says there is a 72% chance of a levee-breaking earthquake, then show us the report and show us the data.
- If enough levees failed, the consequences could be “crippling the state’s ability to deliver clean water.”
Well, if that means that levee failure could compromise the ability of the state to export water from the Delta for some undetermined period of time, depending on specifics, then yes, that is also believable. Whether that would “crippl[e] the state’s ability to deliver clean water” depends on how many levees failed and where they failed, and how long it took to get them back on line. (The speed of repair of the levee failure in the Jones tract in 2004 far exceeded expectations). It depends on where the water is coming from and going to. It depends on what options there are now or that may be developed between today and 2043 to create alternative sources of supply for water that might be lost if Delta exports were compromised. And it depends more generally on how one defines “cripple.”
It would also depend on whether the hundreds of miles of canals that move water south from the Delta would also survive the hypothetical earthquake that caused Delta levees to fail. If those canals fail too, would levee failure be “crippling?” Stated differently, if there were a tunnel under the Delta that got water to the head of canals that failed further south, would the investment in a tunnel have paid off?
Fast spin number 2 in “Why Delta Conveyance” reads:
“Modernizing Delta conveyance would add additional points of diversion along the Sacramento River, increasing the operational flexibility of the SWP, therefore improving the reliability of deliveries to Californians. In 15 years of the 20 years from 1998 – 2018, the SWP delivered 75% or less of the permitted water. Deliveries for eight of those years paint an even more concerning picture with deliveries at 50% or less.”
Recently, the Newsom administration has told Delta advocates that a one-tunnel project would not be for the purpose of increasing diversions from the Delta. Yet DWR’s blog defines “reliability” as the ability to divert more water from the Delta.
The blog’s lament of not meeting amounts of “permitted water” is not a situation that a tunnel would change. There is almost never enough water that falls from the sky to make full deliveries of DWR’s bloated water right permits. DWR’s permits are far back in line compared to older water rights. DWR’s permits also anticipated diverting water from rivers on California’s north coast. That hasn’t happened. Diversion infrastructure in the Delta and south of the Delta, and restrictions on their use, do limit Delta diversions in many years. But 75% of DWR’s permitted water is a good year for diversions by most any measure. And less than 50% deliveries in eight years is not surprising, considering that eight years (2007-2009, 2012-2016) are generally considered to have been drought years.
Fresh evaluation or same old project with minty fresh scent?
One would like to think that the Newsom administration’s new “portfolio” approach to California water would include looking at Delta conveyance with diverse input and fresh eyes, including whether or not “alternative” conveyance makes sense. But if the blog post “Why Delta Conveyance” is an indicator, the foremost question for DWR is what it can sell. If that’s how it shakes out, look for new “fact sheets” that aren’t factual, and for new project branding to be the centerpiece of a new project definition.
One can only wish that DWR would get its stories straight and be honest about what any new conveyance project would do, before it lavishes the public with descriptions of how great it’s all going to be.
CSPA is proud to report that our legal work to protect water quality continues to generate monetary settlements that are donated to foundations and other organizations that protect water quality. While the primary focus of CSPA’s enforcement efforts is to eliminate continuing pollution, settlements generally include mitigation payment for past damage to the environment. These settlements are approved by the courts and U.S. Department of Justice and, by law, cannot benefit or be directed to CSPA.
For example, the largest recipient of CSPA’s mitigation funds is the Rose Foundation for Communities and the Environment. The Rose Foundation is a grant-making public charity that provides much needed funds for environmental and community projects. Since 2005, CSPA has contributed more than $7.2 million in settlement funds to the Rose Foundation.
In 2017 and 2018, environmental mitigation funds from CSPA’s cases enabled the Rose Foundation to award 31 grants totaling $486,500 to organizations working to protect and benefit watersheds throughout much of California. Specific watersheds included the Sacramento-San Joaquin Delta, Russian River, San Francisco Bay, and Monterey Bay. Supported projects included citizen science-based water quality monitoring; legal and technical advocacy to protect water flows and water quality; habitat restoration; community mobilization events that engaged thousands of volunteers in hands-on stewardship; media and public outreach projects; and environmental education to build a new generation of conservation leadership.
Here is a report from the Rose Foundation, which provides short summaries and source-of-funds information for grants enabled by the California Sportfishing Protection Alliance in 2017 and 2018.
By supporting CSPA, CSPA’s donors and members are thus supporting numerous projects and organizations across the state. Please consider donating to CSPA, joining, or renewing your membership today.
On May 9, 2019, Governor Newsom released his proposed budget for the coming fiscal year. The website for CalCAN, the California Climate and Agricultural Network, reports that the proposed budget would eliminate funding for SWEEP,  “the state’s on-farm water use efficiency program.” This is nuts.
The Brown administration initiated SWEEP during the 2014 drought. CalCAN reports that the 2018 SWEEP budget for on-farm water efficiency was $27 million. The problem with SWEEP is not that its money is badly spent. The problem is that it is underfunded by at least an order of magnitude, with a conceptual framework that is equally timid.
The immediate answer for the FY 2020 budget is to restore SWEEP and adding a zero to its 2018 budget. Yes, multiplying the budget by ten. A good chunk of this budget should be spent on establishing an organizational and administrative framework whose focus is institutional agricultural water use (e.g., on the level of irrigation districts) as well as individual farms. Because on a longer term basis, California needs a concerted, statewide campaign to increase agricultural water use efficiency.
Governor Newsom’s Order-N-10-19 issued on April 29 charged Secretaries Crowfoot (Cal Resources), Blumenfeld (Cal EPA) and Ross (Cal Food and Agriculture) with “together prepar[ing] a water resilience portfolio that meets the needs of California’s communities, economy, and environment through the 21st century.” Simply put, no portfolio can meet those requirements without substantial investment in reducing agricultural water demand.
In CSPA et al.’s 2017 comments on the draft Substitute Environmental Document for the update of the Lower San Joaquin River Flow Objectives and Southern Delta Salinity, we presented a table of annual average unimpaired flow and water deliveries from the Merced, Tuolumne and Stanislaus rivers:
Figure 1: Annual median and average runoff, average agricultural deliveries and average M&I deliveries from the Merced, Tuolumne and Stanislaus Rivers
As we stated in our comments on the SED:
California in general, and the San Joaquin tributaries in particular, have an unsustainable agricultural business model. It is a boom and bust cycle built on overallocation of water. Too much delivery in good years creates crisis after 2-3 dry years. This system remains semi-functional only because it diverts water needed for rivers, over-pumps groundwater, or both. On the three major San Joaquin tributaries, average annual deliveries are about half of the average annual runoff (Figure 1). This level of deliveries is not sustainable and creates permanent stress on the system.
The need is not to put ag out of business, though some land does need to be retired. The need is for a new agricultural business model that does not rely on deficit spending of water resources: spending water on crops that should be in rivers and passing through the Delta and Bay.
Agricultural water users simply must do their share to reduce the aggregate demands for water, and their share of water use is large. And no, that doesn’t mean saving water to increase cultivated acreage, put in more profitable tree crops, or sell the “saved” water to water users whose footprint exceeds their water supply. The need is to leave more water in rivers and the Delta and the Bay.
A variant on the old agricultural business model for water is the serial sale (or “transfer”) of water by entities that don’t need all the water they divert. So rather than leave the water in the rivers where it belongs, these entities divert it and sell it. Several major groups of water users and purveyors, including Oakdale Irrigation District and Sacramento River Settlement Contractors, have refined such serial transfers and have developed them into a business model to pay for infrastructure and in some cases habitat improvements for fish and wildlife.
The Vernalis Adaptive Management Plan and Program from 2000 to 2011 put a different twist on this program, selling diverted water back to the river with the state paying the bill.
The resolution of the Mono Lake case in Water Rights Decision 1631 and related litigation (1980’s-1990’s) was already a more advanced business model. There, the Los Angeles Department of Water and Power was required to reduce its water demand in order to protect the “public trust,” in this case aquatic resources in Mono Lake and its tributaries, as well as other public resources such as associated air quality in Mono and Inyo counties. Los Angeles did not finance these improvements by selling water. Resolution involved the acknowledgment and leveraging of a broader social responsibility.
As the Newsom administration considers and develops a “portfolio” approach to water, a major question is therefore the breadth of the portfolio. A portfolio that retains the paradigm of treating water issues in isolation will be under-resourced and over-extended. There will never be enough money and there will never be enough water if the resources available for restoring rivers, the Delta and the Bay are sourced exclusively from water sales and surplus farm profits. Any such portfolio will remain a portfolio for managing deficit spending.
So far, the Voluntary Agreements that the Newsom administration inherited from the Brown administration have retained the business models for water from the past. As proposed, they would limit water for increasing river flows and flows through the Delta to water that water users volunteer to give up without breaking a sweat, or that they get paid for, or both. This volume of water will not solve the problem of rivers and an estuary starved of water. The Newsom administration needs to start by confronting the inadequacy of restoring water to rivers within the comfort zones of the water user community.
Retention of the model of voluntary return of overappropriated water means that an essential question is never asked: How can the state maintain existing or close to existing levels of agricultural production while using substantially less water? The water user community doesn’t want to confront and solve the problem of reducing agricultural water demand because it is pre-emptively focused on retaining overappropriation.
There has never been reticence on the part of water users to use public money to fund water development projects like dams and tunnels. The Newsom administration should make the smarter investment of reducing agricultural water demand. It should be bold in funding agricultural water efficiency, even as it must also be firm in controlling and restoring water to rivers and the Bay-Delta estuary.
 State Water Efficiency and Enhancement Program.
 Governor Newsom, Executive Order N- 10-19, April 29, 2019.
 Source: SED: Merced: p. 2-16; Tuolumne: pp. 2-18 to 2-20; Stanislaus: pp. 2-27 to 2-33. Note: does not include riparian diversions. The cited levels of deliveries are conservative; deliveries often exceed the stated values.
 The requirement passed by the legislature in 2009 for urban water use, 20% reduction by the year 2020, put that sector of the state’s water operations on track to a much better business model.
 Sure, there is still significant opportunity to reduce municipal and industrial (M&I) water demand as well. But M&I water demand accounts for only about 20% of the developed water in the state. And M&I water purveyors and users have already made substantial strides in water conservation and efficiency over the past two decades.
CSPA, nine other conservation and fishing groups, and four whitewater outfitters (“Conservation Groups”) jointly submitted 75 pages of comments on April 12, 2019 on the Draft Environmental Impact Statement (DEIS) for the relicensing of the Don Pedro Hydroelectric Project and the first-time licensing of the La Grange Hydroelectric Project. Together, the projects have buried over twenty miles of the Tuolumne River under Don Pedro and La Grange reservoirs. Today, these reservoirs separate the upper and lower Tuolumne.
The two hydroelectric projects are undergoing licensing by the Federal Energy Regulatory Commission (FERC). The Don Pedro relicensing began in 2011. It was delayed for about two years while the National Marine Fisheries Service, CSPA and others pleaded successfully that the La Grange Powerhouse, operating with no federal license since the 1920’s, required licensing by FERC. The DEIS covers both licensing proceedings.
FERC staff released the DEIS in February 2019. The DEIS recommends that the new licenses adopt the flow regimes supported by the license holders, Turlock Irrigation District and Modesto Irrigation District (Districts). The same skimpy flows are supported by the City and County of San Francisco (the most progressive city in the world!), and by the Bay Area Water Supply and Conservation District, which wholesales water to other Bay Area water agencies.
The DEIS recommends adoption of the Districts’ proposed flows for the lower Tuolumne River, which are a hair better than existing. The Districts proposed combining their flows with killing bass in the river and cleaning river gravel with a power washer. They argued this would protect and support as many salmon as increasing river flows and the access of salmon to floodplain habitat. FERC staff said it was “unknown” if killing bass would help, and staff did not recommend “gravel cleaning.” However, staff accepted the results of the Districts’ “model” whose positive results were based on these activities.
FERC staff also concluded that it did not need to analyze options for maintaining existing water supply uses with less water. So FERC staff took replacement of flood irrigation with managed groundwater recharge, and similar strategies, off the table. Since staff thus concluded that its recommended solutions could not include reducing water supply demand, it decided not to recommend any flows that would require that.
As a clincher, the DEIS copied the Districts’ language verbatim in discussing the reintroduction of salmon to the Tuolumne River upstream of the reservoirs.
Conservation Groups’ DEIS comments find the DEIS inadequate on many grounds, from basic factual omissions to legal inadequacy under the National Environmental Policy Act, the Federal Power Act, and the Administrative Procedure Act.
CSPA is grateful to attorneys from Morrison & Foerster LLP and their client, the Tuolumne River Trust, for their assistance in drafting these comments.
CSPA, the Golden Gate Salmon Association, and other fishing and river groups have released an analysis critical of the outline of Voluntary Agreements submitted to the State Water Board as a proposed alternative to the Board’s regulatory update of the Bay-Delta Plan. The analysis describes foundational problems with the agreements as proposed by the California Natural Resources Agency (CNRA) and others on December 12, 2018 and March 1, 2019.
Entitled “Smoke and Mirrors,” the analysis criticizes the as yet incomplete Voluntary Agreements as outlined to date because they:
- Double-count habitat restoration projects that are already required or planned using existing funds, and that would occur without such an agreement;
- Fail to provide sufficient flow increases to protect and restore the Bay-Delta estuary, its native fish and wildlife, and the thousands of jobs that depend on it;
- Fail to include any restrictions on Delta pumping and other operations of the Central Valley Project (CVP) and State Water Project (SWP); such restrictions are necessary to prevent the water projects from diverting any additional flow provided from upstream farms and cities and to prevent the Trump Administration from gutting Endangered Species Act (ESA) protections for the Bay-Delta;
- Fail to include carryover storage requirements in upstream reservoirs to ensure water supplies for future droughts and adequate water temperatures for salmon;
- Fail to use the transparent approach of flow standards based on a percentage of unimpaired flows, and instead use the failed approach of State Water Board Decision 1641;
- Fail to ensure that Bay-Delta standards will be enforced and will respond to new scientific information; and
- Fail to include investments in water supply reliability and economic development projects that will help cities and farms adapt to a future with less water diverted from the Bay-Delta.
The analysis of the Voluntary Agreements is available here.
The webpage for the March 1 CNRA submittal to the State Water Board is here.
In his State of the State address on February 12, 2019, newly elected Governor Gavin Newsom announced he didn’t support the “California WaterFix” as a two-tunnel project, and that he favored downsizing it to just one tunnel. What does this news mean?
Sacramento-San Joaquin Delta
Photo: CA Dept. of Water Resources
The WaterFix project to tunnel water under the Sacramento – San Joaquin Delta no longer exists as designed. Many steps of this alleged solution for improving the environment and fisheries of the Delta and San Francisco Bay will need to be retraced.
The California Department of Water Resources (DWR) and the U.S. Bureau of Reclamation (BOR) have never analyzed a single tunnel in an environmental document. The 90,000 of pages in the “Final” WaterFix environmental impact report (EIR – California) and environmental impact statement (EIS – federal), already “supplemented” once in 2018, will at minimum require additional analysis. To be done right, it is likely that environmental review will need to completely start over.
Former Governor Jerry Brown peruses the 90,000-page WaterFix environmental impact report (Office of the Governor/Twitter)
DWR and BOR’s joint Petition to the State Water Resources Control Board for the Change in the Point of Diversion (August, 2015) is for a twin-tunnel project. With a single tunnel, it is not even clear if the Bureau of Reclamation will be a partner. To be done right, the Petition, which already contained many procedural irregularities, will need to be withdrawn and resubmitted.
In over two years of hearings before the State Water Board, which generated 24,000 pages of hearing transcripts, there was no testimony about a single tunnel project. At minimum, the Board will need to take additional testimony about a new project. The hearing officers will need to decide what if any previous testimony about a twin-tunnel project will remain relevant in evaluating a single-tunnel project. It is possible that the hearings, too, will need to start from scratch.
No details have been forthcoming on the description of a re-designed project or the next steps. There are definitely more questions than answers. The Governor needs to make decisions on the revised scope and extent of the project. On March 1, DWR and BOR sent a letter to the State Water Board requesting that the Board temporarily place the WaterFix Petition in abeyance and issue a temporary sixty day stay on all proceedings for the WaterFix. The letter states that a stay will “allow DWR sufficient time to assess the effects on WaterFix and the nature and extent the effects would have on existing and any new permit and planning work, and specifically how this may affect the WaterFix CPOD process.”
Meanwhile, several lawsuits relating to the earlier versions WaterFix are already underway. These include litigation on the EIR/EIS for WaterFix. They also include litigation of DWR’s “Validation” that the project is ready to issue bonds to fund it. It is unclear whether DWR and BOR will withdraw their environmental documents or the validation, and if so what will become of the ongoing litigation. Attorneys for CSPA and numerous other parties have invested substantial time, effort and resources in this litigation, prior to DWR’s upcoming do-over.
WaterFix in any form will be further delayed for years. Perhaps it is time for the Governor to put a cork in the tunnels once and for all and find alternatives that truly reduce reliance on the Delta for California’s water supply.
The holidays are over, and the sales are on. Karla Nemeth, Director of the California Department of Water Resources (DWR) published an op-ed in CALmatters on December 26, 2018 to tell the world “what new water deals mean.” Tom Birmingham, General Manager of Westlands Water District on the west side of the San Joaquin Valley, pronounced on the same day that “new voluntary water agreements are a good deal.” Together, they’re selling a 15-year lease on the public trust resources of the Sacramento – San Joaquin watershed and the Bay-Delta estuary. Of course, like all leases, at the end of the lease period there will be no equity to show for it. As the 15 years sunset, the sales associates will throng to re-up the public on buying back public water. With luck, after those 15 years there will be some fish and other public trust resources left to protect.
On December 12, 2018, DWR Director Nemeth and Department of Fish and Wildlife (DFW) Director Chuck Bonham brought a presentation and a series of abbreviated “term sheets” for “Voluntary Settlement Agreements” to the meeting of the State Water Board. The State Water Board had agendized adoption of the update of that portion of the Bay-Delta Plan that deals with Lower San Joaquin River Flow and Southern Delta Salinity. The State Water Board adopted the Plan revisions and approved the supporting Substitute Environmental Document later that day. (See CSPA’s previous analysis here).
At the State Water Board’s December 12 meeting, Turlock and Modesto irrigation districts and the San Francisco Public Utilities Commission supported a flow agreement for the lower Tuolumne River that they had reached at least in concept with DFW. A larger group of water users supported DFW and DWR’s approach and recommended framework for Sacramento Valley flows and Delta operations. These entities even offered to draft all or part of a restructured substitute CEQA document on the State Water Board’s behalf.
So how can Mr. Birmingham unabashedly say that the new Voluntary Settlement Agreements are a “good deal” when the so many details of the agreements still need to be worked out? How can other commenters from the water user community praise the deals without really even knowing what they are? It’s because (using Mr. Birmingham’s word) these deals “preempt” a formal balancing of the public trust. They don’t start from the premise that water for the public trust is primordial and fundamentally different than water for developmental uses.
The public trust protects the needs of the rivers, the estuary and the Bay – including fish and wildlife, the aquatic food web, plants, clean water, public recreation – as first priority. Developmental uses are limited by the needs of the public trust. The State Water Board’s percent-of-unimpaired framework accepts the premise that the public trust is fundamentally different, and is first in line. CSPA’s arguments with the State Water Board are not about the Board’s framework. They are about how the State Water Board goes about drawing the line (lack of formal process for balancing the public trust) within that framework, and where the State Water Board chose to draw the line (too little water devoted to protect the public trust) within that framework.
The Voluntary Settlement Agreements are an initiative by water users, aided and abetted by the California Departments of Natural Resources and Fish and Wildlife, to substitute private agreements in place of balancing the public trust. Thus, CSPA’s argument with the Voluntary Settlement Agreements as proposed is fundamentally different than the argument with the State Water Board. CSPA’s fundamental disagreement with the Voluntary Settlements is that they place the system of water rights priority before the public trust; water for the public trust becomes the sloppy seconds of business as usual. The argument is with relegating the public trust to leftovers, not with the size or quality of the leftovers.
The framework of the Voluntary Settlement Agreements as introduced on December 12 is to limit required flows so that they don’t upset the existing divisions and allocations of water. Diverting, storing and then selling the public’s water back to “the environment” is one of the main tools of this framework. Setting up opportunities to divert “new” sources of water is another tool. Accounting tricks that increase diversions even as “new” water is released is a third. Building the Voluntary Settlement Agreements on the foundation of Water Rights Decision 1641 – a proven disaster for fish – will allow the water users another fifteen years to game a water system they have mastered.
The Voluntary Settlement Agreements are also long on selling previous commitments for non-flow measures as new commitments. Many of the non-flow actions that the listed for the Feather River are actions DWR agreed to in the Oroville Settlement Agreement for relicensing hydropower facilities at Oroville Dam. Many actions on the Sacramento have long been identified as needed. The game is not simply “will trade money for water.” It’s: will trade water for making some of the payments we’re already late in paying. The sales pitch here involves getting extra credit for actually doing something you already said you’d do.
New objectives tentatively proposed for the update of the Bay-Delta Plan, according to a July 2018 State Water Board Framework document (p. 20), would add existing Delta “reverse flow” limits to the Bay-Delta Plan. This would create a state backstop to the Trump administration, which is preparing to weaken these Endangered Species Act protections in the Delta in order to “maximize water deliveries.” Under the Voluntary Settlements, the backstop goes away. As noted in a January 4, 2019 story in the Los Angeles Times, “Department of Water Resources Director Karla Nemeth said proposed changes in [Delta] pumping operations could involve fewer restrictions and more exports.”
Adaptive management under the proposed Voluntary Settlements offers still another low-flow opportunity. Mr. Birmingham informs us: “In the eighth year of the agreements, an additional 300,000 acre-feet of water will be dedicated to Delta outflow if science establishes the additional water is required to achieve the established goals for species.” Of course, “science” won’t establish anything. People will establish the goals for the species, and people will establish the need for water. Who will those people be? “[A] collaborative group of public agencies and interested nongovernmental organizations” will “evaluate whether water used for species protection is being used reasonably and beneficially.” The “public agencies” are the state and federal contractors who spent millions of dollars over the last eight years attacking the need for more Delta outflow. They are also the federal fish agencies that didn’t utter a word in the latest round of workshops and meetings on the Bay-Delta Plan, and California DFW, whose Director showed up to cut flows in half. There is no definition of who the “interested” nongovernmental organizations might be, what their role will be, or whether they’ll have to sign and defend a lousy settlement or a non-disclosure agreement to play. With this lineup, what are the odds that conditional water will become real water?
Resource agencies, NGO’s and water users dithered for six years in secret flow negotiations on the San Joaquin, with two years of overlap with secret flow negotiations for the Sacramento Valley. In the end, a small group of water users carved up Central Valley water to meet the December 12, 2018 deadline to present agreements to the State Water Board. In Mr. Birmingham’s words: “These agreements resulted from intense negotiations among DWF [sic], DWR, the U.S. Bureau of Reclamation, public water agencies that contract for the delivery of water from the Central Valley Project and the State Water Project, and public water agencies from every upstream region in the Delta watershed.” Even though most of these entities have governance as “public water agencies,” they represent the public interest only to the degree that the public interest overlaps with the economic interests of their constituents. And none of these “public water agencies” start from the basis of the primacy of the public trust. These deciders concluded the Voluntary Settlements as private negotiations of business entities dividing up assets and liabilities. It’s a hostile takeover of the public trust.
In the negotiation of the December 12 Voluntary Settlement Agreements, two sets of entities were ostensibly negotiating to defend the public trust: DFW, which accepted the water users’ framing and framework from the start, and five hand-picked non-governmental organizations (NGO’s) that were never allowed to direct the discussion. These five NGO’s are all relatively large and well-funded national environmental organizations. But in a setting where private interests are competing, the economic and political clout of these NGO’s doesn’t hold a candle to the water users, DWR, and the Bureau of Reclamation. As undercapitalized private interests, they were marginalized; they reported to the State Water Board that most of the major discussions and negotiations took place without them, and often without them even being informed. They at least had the sense to walk away from a rigged game.
The political capital that NGO’s and resource agencies bring to processes to protect fish and other public trust resources is precisely their representation of the public interest. The five selected NGO’s signed non-disclosure agreements that cut them off from their political base and allies. They isolated themselves from the coalition of the broader NGO community, greatly limiting their resources and their strategic opportunities, and most of all weakening their moral authority immeasurably. DFW’s leadership, in conducting a secret process, grossly weakened any leverage it might have had by separating itself from the broader environmental and fishing community. It also went a long way toward breaking up working relationships that NGO’s and DFW staff have developed and strengthened over the past decade, in hydropower relicensings as well as before the State Water Board.
The State Water Board’s adoption of lower San Joaquin River flow objectives on December 12 reunited, for the moment, the broad NGO (environmental and fishing) community in favor of these objectives and against a series of lousy private deals. But the State Water Board also left the low flow Voluntary Settlement Agreements with a big foot in the door. The broad water user community has not simply initiated a parallel process to that of the State Water Board’s update the Bay-Delta Plan. The water user community is seeking to undermine the State Water Board’s process to balance the public trust. It seeks to insert a surrogate, opposing private deal dedicated to the proposition that water users should have another 15 years to siphon off the public trust and thus avoid living within their means when it comes to water.
That must not happen.
What the Water Deals Mean, Part 1: December 2018 Agreements between the Department of Water Resources and the Bureau of Reclamation
On December 12, 2018, the California Department of Water Resources (DWR) and the United States Bureau of Reclamation (Bureau) concluded a series of water agreements relating to DWR’s State Water Project (SWP) and the Bureau’s Central Valley Project (CVP). On December 26, 2018, CALmatters published op-ed in which, Karla Nemeth, Director of the California Department of Water Resources (DWR) presents her perspective on “what new water deals mean.”
This post presents a different perspective.
The foundational agreement between DWR and the Bureau announced on December 12 is the Addendum to the Coordinated Operation Agreement Central Valley Project/State Water Project. The Addendum to the “COA” modifies the 1986 agreement between DWR and the Bureau on how they divide up responsibility for meeting various regulatory requirements and how they divide up the benefits of water deliveries between SWP and CVP contractors.
Under the Addendum to the COA, the Bureau and the CVP generally get less responsibility and more water than under the 1986 COA. The SWP will be responsible for meeting more north-of-Delta and in-Delta flow and water quality requirements in Dry and Critically Dry water years. This will increase demands on Oroville Reservoir, DWR’s main north-of-Delta storage facility, when water is in short supply. Thus, the Addendum to the COA means that the SWP and the CVP will change how they operate their reservoirs.
The Addendum to the COA treats changes in the operations of California’s major reservoirs as strictly private water supply management issues to be negotiated by business interests and the agencies that enable them. However, as seen most clearly in the 2014 and 2015 drought years (and 2016 on the Stanislaus), drawing down SWP or CVP reservoirs increases the risk that their operators will be unable to meet flow, salinity and/or water temperature requirements in the following year without shorting deliveries to their highest priority “settlement” and “exchange” contractors. In 2014 and 2015, DWR and the Bureau faced low reservoir storage and low inflow. DWR and the Bureau jointly petitioned the State Water Resources Control Board (State Water Board) for “Temporary Urgency Changes” to flow, salinity and water temperature rules. The State Water Board granted these petitions to weaken flow, salinity and temperature requirements. As a result, almost the entire natural production of winter-run salmon in the Sacramento River failed, and Delta smelt disappeared, possibly to the point of extinction. These are public trust issues, not private ones. By any measure, they were significant impacts.
Legally, one way the public trust is protected from significant environmental impacts is through environmental review. However, DWR has declared that the Addendum to the COA is exempt from environmental analysis under the California Environmental Quality Act (CEQA), because the change is all within the range of (non-public) discretion DWR has always had in operating its reservoirs. The Bureau, for its part, issued a brief Environmental Assessment and a Finding of No Significant Impact under the National Environmental Quality Act (NEPA) for the Addendum to the COA, putting slightly more effort into determining that there is nothing to see here.
The “get” for DWR and the SWP from the Addendum to the COA is enshrined in another document, the Agreement to Address the Effects of the California WaterFix on Central Valley Project Operations, in which the Bureau agrees, for now, to stay on board with DWR’s Delta tunnels project (aka “WaterFix”), at least until the State Water Board issues a draft water rights decision for WaterFix. The Agreement to Address the Effects ultimately allows the Bureau the opportunity to become a partner in WaterFix or to decline, and promises that in any event DWR will “avoid, mitigate, or offset [WaterFix] impacts [to the CVP], if any, described herein under specified circumstances.”
Here are some of the things that the Agreement to Address the Effects means. First, it means that DWR won’t radically change the WaterFix project definition, for now. All the associated documents, processes and approvals that are based on the existing WaterFix project definition won’t be summarily thrown out. So DWR can continue pursuing WaterFix without facing a massive do-over of environmental review and three years of water rights hearings at the State Water Board. It means that DWR can tell the State Water Board that it will potentially use the Bureau’s water rights in operating the tunnels. And it means that DWR has the tenuous assurance that the Bureau may accept and comply with the substance of the Biological Opinions for WaterFix issued by the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS). The Bureau is the federal action agency for the purposes of those BiOps, and would have extensive obligations under them. In the Agreement to Address the Effects, the Bureau has promised not to unravel that arrangement at least until the State Water Board issues a draft water rights decision.
As noted above, the Addendum to the COA, without adequate NEPA review and with no CEQA review at all, substitutes a private deal for public disclosure under CEQA and NEPA of the impacts of changed reservoir operations on the public trust. In combination with the Agreement to Address the Effects, the Addendum to the COA also creates a private deal to mitigate impacts of changed reservoir operations to CVP water users under WaterFix without mitigation of the impacts of changed reservoir operations to the public trust under WaterFix. Broader acceptance of such private resolutions would have the additional effect of reducing opposition in the WaterFix water right hearings to DWR’s position that reservoir operations are strictly a private matter, unfit for public comment, input or review.
CSPA has argued in its testimony in the WaterFix hearings that the State Water Board needs to put explicit carryover storage conditions on each of the north-of-Delta CVP and SWP reservoirs (Trinity, Shasta, Folsom and Oroville) to reduce the risk to fish. Separately, a number of water users have sought protection from foreseeable changes in reservoir operations under WaterFix that could reduce their water supply reliability. Folsom area diverters who protested the WaterFix petitions have asked for numeric carryover storage requirements in Folsom Reservoir to protect their water supplies. Other north-of-Delta diverters have sought to assure that changes in reservoir operations under WaterFix would not make less water available for their respective water deliveries. Conditions on reservoir operations in water rights permits for WaterFix (or as the result of any other proceeding) appear to be a deal-breaker for both the Bureau and DWR.
One of the goals of the December water deals thus appears to be to separate the water users who are WaterFix protesting parties (“protestants”) from environmental WaterFix protestants on issues of reservoir operations. Though a likely overreach at least in its timing, DWR sent a December 12 letter to many of the WaterFix protestants who are CVP contractors, asking these CVP contractors to dismiss their water rights protests and to not sue on any issues or proceedings relating to WaterFix. Much of the testimony that these parties presented in the WaterFix water rights hearings directly or indirectly addressed reservoir operations.
On December 12, DWR and the Bureau also concluded a cost sharing agreement to keep federal dollars coming to pay for the CVP’s share of the requirements under the existing Biological Opinions for the long-term operation of the existing SWP and CVP facilities. The Trump administration is working to re-write these BiOps, presumably to reduce federal obligations for both water and money. This cost sharing agreement appears to sunset once new BiOps for existing SWP and CVP facilities are issued. However, a December 12 letter from DWR Director Nemeth to Bureau Commissioner Brenda Burman entreats the Bureau to continue cooperation on a suite of matters relating to the SWP and CVP, and states, specifically: “Each of these actions must ensure an approach that enables compliance with state law.” This is important. Federal compliance with state law is no longer a given. In this regard, it is notable that the Addendum to the COA allows the possibility for the Bureau to withdraw from the COA in as little as six months.
In sum, the three agreements are an elaborate attempt by DWR to keep the Bureau on board with WaterFix, to keep the Bureau maintaining at least the appearance of complying with state law, to leverage federal funding, and to reduce CVP contractor opposition to WaterFix. DWR’s leverage is the SWP’s enormous Delta export pumping capacity and the potential that WaterFix may directly or indirectly increase CVP exports as well as SWP exports.
The three agreements are an elaborate attempt by the Bureau to increase water its supply deliveries and to reduce its regulatory obligations for both water and money. The Bureau’s leverage is the fact that DWR needs the Bureau to continue as a petitioner in the WaterFix water rights hearings and as a proponent in related proceedings. In addition, the Bureau’s leverage is that it can invoke the nuclear option of refusing to comply with state law in a variety of venues.
Together, DWR (passively) and the Bureau (actively) will use the Bureau’s leverage (potential non-compliance with state law) against the State Water Board in the update of the Bay-Delta Plan. The Board’s update could require both the SWP and the CVP to restore substantial amounts of water to the public trust. Both DWR and the Bureau, along with their contractors and other water users, will use the threat of federal non-compliance with state law, along with the carrot of federal funding, to promote the Voluntary Settlement Agreements that DWR and others also announced on December 12, 2018. DWR, the Bureau, and other water users will attempt to substitute these Voluntary Settlement Agreements for the State Water Board’s regulatory obligation to balance the public trust. This will be the subject of Part 2 of What the Water Deals Mean.
The State Water Resources Control Board adopted new objectives for flows in the Lower San Joaquin River and for southern Delta salinity on Wednesday, December 12, 2018. The new plan for flow in the San Joaquin River will require as a start release from reservoirs on the Stanislaus, Tuolumne and Merced rivers of 40% of the unimpaired flow in the months of February through June. The adoption is part of the update of the State Board’s Bay-Delta Plan, whose last update was in 1995.
The State Board’s December 12 adoption was essential. It came in spite of massive pressure from politicians of both major parties and from the overwhelming majority of water users in the Sacramento – San Joaquin watershed. It also came despite the initiative of the Director of the California Department of Fish and Wildlife (CDFW) and the Director of the California Department of Water Resources (DWR) to substitute a series of “Voluntary Settlement Agreements” that would vastly reduce the amount of water the Bay-Delta Plan will require to go into the Delta and out through San Francisco Bay.
The outcome is not perfect. CSPA has advocated for 60% of the February-June unimpaired flow. CSPA has opposed the weakening of the southern Delta salinity standards; it will have the practical effect of reducing San Joaquin River flow at times, and the underlying analysis is flawed. CSPA is weighing litigation on these and other issues. Nonetheless, many aspects of the outcome are positive. Here is why.
First is substance. The State Board stood up for far more water than the water user community proposes to release into and through the Delta. That’s huge. Second is process. The State Board chose public regulatory process over back-room “voluntary settlements” based more on money and politics than on science. Continue reading
Major Setback for Delta Tunnels: DWR Withdraws Certification that WaterFix Is Consistent with Delta Plan
The Department of Water Resources (DWR) has withdrawn its Certification that its proposed Delta tunnels (WaterFix) project is consistent with the Delta Plan. As anticipated in a November 16, 2018 CSPA post, there is now no chance that the Delta tunnels will be approved and begin construction before Governor Brown leaves office in January 2019.
In a December 7, 2018 letter to Chair of the Delta Stewardship Council Randy Fiorini, DWR Director Karla Nemeth wrote: “[T]here are unresolved issues related to interpretation of the requirements of the Delta Reform Act and Delta Plan policies. Therefore, DWR is hereby withdrawing the Certification of Consistency for WaterFix that was filed on July 27, 2018.”
This is as close to an admission as DWR is likely to come. In the same letter, Director Nemeth also pleaded: “DWR firmly believes the timing of filing the Certification of Consistency for WaterFix was appropriate ….”
Jeff Kightlinger, General Manager of the Metropolitan Water District of Southern California, one of the biggest WaterFix proponents and prospective beneficiaries, was quoted in the Sacramento Bee as saying: “I hope it’s just a time issue, like a fix-it ticket.” This is the kind of glib self-assurance that makes it satisfying to see DWR and its team taken down a peg by the previously-reported Delta Stewardship Council’s staff report and Council chair’s admonition to withdraw. For the past 3 years, DWR has sought to characterize a constantly changing project description as what it told the stewardship council was “adjustments.”
Clearly, a vague project description did not pass muster. The Delta Stewardship Council could not overlook major project uncertainties, such as the role if any of the Bureau of Reclamation in the project and in meeting state-required regulations for Delta protection. DWR will have to come back to the Delta Stewardship Council with a project that has resolved such major uncertainties. Perhaps even more difficult, DWR will need to confront the litany of project impacts to the Delta, its residents, and its recreational users. Representatives of in-Delta interests presented compelling evidence to the Delta Stewardship Council about the impacts of millions of pile-driver strikes, thousands of barge trips, and daily traffic snarls resulting from draw bridge openings to accommodate the barge trips. It is not simple to change the project to resolve these impacts.
The more DWR changes the project, the more likely it may be for DWR to persuade the Delta Stewardship Council. But the more the project changes, the more those changes may cascade into other processes. Changing the project may result in the need for another round of environmental review. It could possibly also require additional testimony in the WaterFix water rights hearing at the State Water Board.
December 7, 2018 was a day of victory for those who have fought the Delta tunnels over the last decade. But it is a victory in a battle, not in the war. CSPA fully expects to be back before the Delta Stewardship Council to oppose a second Certification of Consistency for WaterFix.
After more than three years, 104 days of testimony, and over twenty-four thousand pages of hearing transcripts, the hearing before the State Water Resources Control Board (State Board) on the proposal to construct two tunnels to convey water under the Delta (aka California WaterFix) is almost completed. Probably, that is: there could be more if the project changes again to a degree that requires additional testimony and/or environmental review.
The hearing before the State Board responds to the August 26, 2015 joint petition of the California Department of Water Resources (DWR) and the U.S. Bureau of Reclamation (Bureau) to add points of diversion to their existing water rights. Adding points of diversion would allow DWR and the Bureau to divert water at three tunnel intakes between Clarksburg and Courtland on the Sacramento River south of Sacramento. From there, water would move in two tunnels under the Delta to a new “forebay” near Tracy, next to the existing Clifton Court Forebay from which DWR draws diverts water from the south Delta. From the new forebay, water would move to DWR and the Bureau’s existing pumping plants at the heads of the California Aqueduct and the Delta-Mendota Canal.
In 2015, DWR and the Bureau were adamant that the State Board should schedule and commence a hearing right away. Despite comment letters opposing such hearing on the grounds it was premature, the State Board issued a hearing notice on October 30, 2015. However, CEQA and NEPA environmental review for the “WaterFix” project was still incomplete when the hearing began. Essential elements of the project were unclear. Thus, the State Board’s Hearing Officers required DWR and the Bureau to present their first round of written testimony prior to other parties to the proceeding. (The State Board’s web page for the WaterFix water right hearing is here.)
For CSPA, response began with a water rights protest of the petitions, jointly filed with CSPA’s partners throughout the WaterFix hearing, the California Water Impact Network (C-WIN) and AquAlliance. CSPA et al timely filed their joint protest on January 5, 2016, and thus joined many other parties as “protestants” in the proceeding.
After the initial rush to start a hearing, DWR and the Bureau asked for time extensions, and actual hearings did not start until July 2016. As the hearing unfolded over the next two years, DWR and the Bureau continued to change the project description, in some cases making previous testimony obsolete because that testimony addressed older versions of the project. Even after testimony that took place over two years, DWR, on July 17, 2018, released a Supplemental Draft Environmental Impact Report (EIR: CEQA)/Draft Environmental Impact Statement (EIS: NEPA) to analyze additional changes to the project. The Bureau issued a Notice of Availability under NEPA on September 20, 2018. The NEPA comment period closed as recently as November 5, 2018. Continue reading
A recent series of articles and blog posts by Jeff Mount and others from the Public Policy Institute of California (PPIC) proposes a system of “water budgets” for the environment as part of a new system for managing water and rivers in California. These follow on a November 2017 PPIC paper by Mount et al. entitled Managing California’s Freshwater Ecosystems, which highlighted the concept of water budgets for the environment based on experiences in Australia.
A November 18, 2018 guest article by Mount and Ellen Hanak in the “CALmatters” newsletter leaves the realm of the conceptual and intervenes in ongoing regulatory process and public debate. It both seeks to apply the water budget concept to the public discussion about the State Water Resources Control Board’s (State Board) ongoing update of the Bay-Delta Plan and opines that “voluntary accords offer the best hope for turning things around in the Delta’s troubled freshwater ecosystems.”
Exhibit A in the demonstration of why academics and policy analysts do poorly when intervening in regulatory process is the following sentence from the November 18 article: “Parties should avoid getting hung up on the specific amount of water initially set aside for ecosystems.” Oh dear.
It’s pretty darn infuriating when those of us who have been fighting for a decade to actually establish a water budget for the environment are told we’d be better off making a deal in which the size of the budget really doesn’t matter.
It now appears that there is almost no chance that Delta tunnels will be approved and begin construction before Governor Brown leaves office in January 2019. The roadblock emerged on November 15, 2018 in a proceeding before a state agency that most people don’t know about and even fewer understand: the Delta Stewardship Council.
Following a day-long workshop on November 15, the Chair of the Delta Stewardship Council recommended that the Department of Water Resources (DWR) further define its Delta tunnels (“WaterFix”) project before asking the Council to approve the project. Chair Randy Fiorini’s comments were supported by comments by Council member Frank Damrell. (See details in Maven’s Notebook at https://mavensnotebook.com/2018/11/15/this-just-in-cal-water-fix-workshop-at-the-delta-stewardship-council-ends-with-chair-fiorini-suggesting-the-department-of-water-resources-withdraw-consistency-determination/).
The Delta Stewardship Council must find that WaterFix is consistent with the Delta Plan before DWR can begin construction of WaterFix facilities. Nine “appellant groups” appealed DWR’s July 27, 2018 Certification that WaterFix is consistent with the Delta Plan. CSPA is part of Appellant Group 3, whose appeal was filed by Bob Wright with Friends of the River. (For the Certification, the appeals, and the voluminous 30,000+ document record for the proceeding, see https://coveredactions.deltacouncil.ca.gov/profile_summary.aspx?c=1790396c-5419-4ccb-b0d3-10cc4e985105).
The Delta Stewardship Council held a hearing on the appeals on October 24-26, 2018. At hearing, CSPA’s Chris Shutes summarized the portion of Group 3’s appeal dealing with flow requirements and the incompleteness of DWR’s proposed project, and rebutted some of DWR’s assertions.
Following the hearing in October, Council staff produced a Staff Draft Determination (http://deltacouncil.ca.gov/docs/staff-draft-determination-regarding-appeals-certification-consistency-california-department) that recommended findings of inconsistency with five policies in the Delta Plan. At the Council’s workshop on November 15, Staff presented its Draft Determination, and DWR followed with a presentation of its own. After questions from the Council, Appellant Groups made presentations. On behalf of Group 3, CSPA made a presentation in support of staff’s findings of inconsistency and in opposition to issues on which staff recommended denying appeals.
The proceeding before the Stewardship Council is squarely in the critical path of DWR’s efforts to construct the Delta tunnels. Nine groups of appellants showed up with well-researched and cogent arguments, and complemented one another well. They have made a difference. Not surprisingly, the nine groups represent most of the entities that have also been in the forefront of opposition in the three-year proceeding on the Delta tunnels before the State Water Resources Control Board.
“Let’s go.” “We can’t.” “Why not?” “We’re waiting for Godot.”
― Samuel Beckett, Waiting for Godot
In response to a joint written request from Governor Brown and incoming Governor Gavin Newsom, the State Water Resources Control Board on November 7, 2018 postponed a decision on adoption of increased flow requirements for the lower San Joaquin River. As proposed, the San Joaquin River Flows and Southern Delta Salinity portion of the update of the Bay-Delta Plan would require release of 40% of the unimpaired flow in the Stanislaus, Tuolumne and Merced rivers in the months of February through June.
The update of the Bay-Delta began in 2009. The last update was in 1995. The State Water Board had already postponed a decision on August 22, 2018.
The ostensible reason for the November postponement was to allow additional time for voluntary settlements that would supplant the Board’s proposed plan. Such settlements are advocated by most water users in the Bay-Delta watershed, as well as by the California Department of Natural Resources including the Department of Fish and Wildlife.
At the November 7 meeting, CSPA advocated adoption as scheduled and strongly opposed postponement, pointing out that proposed settlements would fall far short of the State Water Board’s already compromised proposed flows. CSPA also opposed the increasing politicization of the process. Others speaking in opposition of postponement included National Resources Defense Council, the Bay Institute, Golden West Women Flyfishers, and the Tuolumne River Trust.
The State Water Board has now scheduled its adoption hearing for December 12, 2018. CSPA fully expects that state resource agencies and various water users will at that time present the State Water Board with one or more outlines of wholly inadequate proposed settlements.
 Letter is posted at: https://www.waterboards.ca.gov/docs/20181106_brown_newsom_ltr.pdf
The Division of Dam Safety and Inspections in the Federal Energy Regulatory Commission (FERC) issued a letter to the California Department of Water Resources (DWR) on October 25, 2018 that requires DWR to reclassify the emergency spillway at Oroville Dam as an “auxiliary spillway.” The letter also describes the need for DWR to plan for a greater volume of flood flow at Oroville Dam than DWR had previously planned for.
Unless something changes, the likely net result is that DWR will have to greatly expand the “emergency spillway” on Oroville Dam that DWR’s contractor has been rebuilding over the last year and a half, since it almost failed in February 2017 after very limited use. DWR has expanded the concrete weir (or lip) at the top of the dam and constructed an “apron” (or “splash pad”) onto which water would spill as it goes over the lip when the reservoir is full and the main spillway cannot handle all the flow. The engineers at FERC are telling DWR that this isn’t enough. By definition, an “emergency spillway” is used so infrequently that it is acceptable for it to sustain significant damage during use. An “auxiliary spillway” is one that must be relied on in foreseeable circumstances. To avoid significant damage in use, the reclassified “auxiliary spillway” will need to be built out as a complete concrete spillway from the top of the dam to the bottom. Though the “apron” has added reinforcement near the top of the dam, water flowing over it would still pass over unreinforced rock and dirt to reach the bottom of the dam.
Over the past year and a half, DWR has reconstructed the main spillway, right next to the emergency spillway (see photos in the Report linked below on p. 2 and p. 11). The Sacramento Bee reported on September 6, 2018 that total construction costs were estimated to reach $1.1 billion. It is reasonable to estimate that the cost for completing the auxiliary spillway could easily reach another half a billion dollars.
Thirteen years ago, Friends of the River, the Sierra Club and the South Yuba River Citizens League warned FERC in a series of filings that the emergency spillway needed to be replaced by a complete lined auxiliary spillway. A year later, CSPA supported Friends of the River’s warning in a filing of its own. In a series of filings including the above-cited Report on the Oroville spillway incident of 2017, Friends of the River, CSPA and others have advocated for a formal consideration of dam safety in relicensing. According to a just-released report from the United States Government Accountability Office (GAO), FERC staff reviews dam safety during relicensing and is moving to a “risk-based” evaluation of all high-risk dams regulated by FERC. However, the GAO report suggests that FERC staff will continue the practice of not “showing its work” when it comes to public or agency comments and studies regarding dam safety.
It appears likely that filings by NGO’s in the FERC relicensing proceeding for the Oroville Facilities finally caught the eye of regulators at FERC. It is disappointing the FERC staff apparently plans to continue analysis of dam safety out of public view. However, the fact that FERC’s Division of Dam Safety and Inspections has reached what appears to be a dramatic new conclusion about the adequacy of spillways at Oroville based on a new protocol is satisfying. FERC is poised to require a crucial improvement to protect public safety and important water infrastructure.
In the world of water advocacy, persistence pays.
 CSPA, Friends of the River, the South Yuba River Citizens League, and American Whitewater describe the February 2017 Oroville spillway incident in a September 2017 report, The Oroville Dam 2017 Spillway Incident and Lessons from the Feather River Basin, previously posted at http://calsport.org/news/wp-content/uploads/Oroville_Lessons_2017_report_web-final.pdf
In an 11-0 vote on October 30, 2018, the San Francisco Board of Supervisors passed a resolution supporting the State Water Resources Control Board’s immediate update of the San Joaquin Flow portion of the Bay-Delta Plan. Introduced by Supervisor Aaron Peskin following meetings with several environmental and fishing organizations including CSPA, the resolution recognizes the need for San Francisco and its Bay Area contractors to release more water from dams to protect the lower Tuolumne River, the Sacramento-San Joaquin Delta, and San Francisco Bay.
The San Joaquin flow objectives in the plan are due to be adopted by the State Water Resources Control Board on November 7. As currently written, these objectives would require 40% of the unimpaired flow in the Stanislaus, Tuolumne and Merced rivers in the months of February-June to pass past dams on those rivers, through the Delta and into the Bay.
The resolution follows a two-year campaign with the San Francisco Public Utilities Commission, the City’s water agency, to accept the State Water Board’s flows. Led by the Tuolumne River Trust, this campaign did not move the SFPUC off a proposal to require release of less than half the flows proposed by the State Water Board. An appeal to the Board of Supervisors’ environmental values produced a more positive outcome.
Over almost a decade of advocacy, CSPA has supported flows from the lower San Joaquin River greater than 40% of the February-June unimpaired flow, with explicit exceptions for drought years. With the State Water Board poised to act, CSPA supports action by the State Water Board to adopt flow objectives without delay, and working through any refinements after adoption.
Note: On November 2, 2018, San Francisco Mayor London Breed vetoed the resolution. The Board of Supervisors will not meet again before the State Water Board’s November 7, 2018 meeting to consider the Bay-Delta Plan.
On October 1, 2018, the United States Fish and Wildlife Service wrote a letter to the Federal Energy Regulatory Commission (FERC) retracting its January 29, 2018 flow recommendations for the lower Tuolumne River (see pp. 65-74). In its October 1 do-over letter, US Fish & Wildlife completely agrees to the required flows in the lower Tuolumne River proposed by the operators of Don Pedro Reservoir, Turlock Irrigation District and Modesto Irrigation District (Districts), and jointly supported by the City and County of San Francisco.
The road to submission was not scenic. In March, 2018, and again in May, representatives of the Districts and the San Francisco Public Utilities Commission (SFPUC) made trips to Washington DC, where they and their lobbyists met with senior officials in the Trump administration. These included officials in the Department of the Interior, which includes US Fish & Wildlife.
Meanwhile, back in California, the Districts and the SFPUC initiated a series of closed-door meetings with US Fish & Wildlife. On July 20, Secretary of the Interior Ryan Zinke visited Don Pedro Reservoir with Republican Congress members Jeff Denham and Tom McClintock. Secretary Zinke made it clear where he was going when he told the press: “The federal interest is to solve the problem.” https://www.modbee.com/latest-news/article215295590.html
As described in the October 1 US Fish & Wildlife letter to FERC, “solving the problem” meant accepting the position of the Districts:
The Service proposed a set of recommendations included in the USDOI Response Letters based on studies from multiple river systems, including the Tuolumne River, successes achieved in other areas and on best available science. However, following discussions with License Applicants, the Service recognizes that the flow proposal included in the USDOI Response Letter for Don Pedro includes proposed volumes of water as a license condition that are difficult for the License Applicants to manage in the context of their FERC license without significant effects to overall water supply and operation of the Projects. For this reason, the Service proposes to focus on flow beyond the License Applicants needs that can be made available in some year types and long-term improvements to habitat that can be made to improve salmonid survival in the Tuolumne River. (October 1 letter, p. 6)
So, instead of flows based on the Service’s understanding of the “best available science,” the Service will now help the Districts manage any water that the Districts release above minimum flow requirements because the Districts don’t have space in their reservoirs to store it. The Service and the Districts call this “spill.” In case there is any failure to communicate about priorities, the October 1 letter specifies: “[Spill Management Plan] shall not interfere with the Project’s operations related to water supply management, minimum instream flow releases, flood control, and project safety.” (October 1 letter, p. 14)
The October 1 letter describes the process of developing the Service’s new position with a greater reliance on euphemism than the blunt description of the outcome:
Shortly after the USDOI Response Letters were filed, License Applicants reached out to the Service and USDOI to talk about the contents of the USDOI Response Letters. We opened a dialogue to determine if there were areas of common ground where we could reach agreement with the License Applicants and potentially provide revised recommendations to FERC. (October 1 letter, p. 1)
Right. After the Districts went to the Department of the Interior in Washington, the Districts found a more favorable agenda for “dialogue.”
These discussions have been very helpful to create meaningful dialogue between the Service and License Applicants about opportunities and constraints in providing water for multiple uses and to create consensus around the importance of habitat restoration in the lower Tuolumne River. (October 1 letter, p. 2)
Aha. A fisheries agency that substitutes “refined recommendations” based on “policy direction” (October 1 letter, p. 6) for best available science hasn’t been asked to find consensus or to engage in dialogue: it’s been told to submit.
Representatives of the San Francisco Public Utilities Commission have told staff from environmental groups that the SFPUC has been at arms’ length from some of this political maneuvering. SFPUC staff reported at the October 9, 2018 SF Public Utilities Commission meeting that it is “very actively in Washington DC with the irrigation districts.” (http://sanfrancisco.granicus.com/MediaPlayer.php?view_id=22&clip_id=31551, about minute 54). SFPUC staff was present at the closed door meetings with the Districts and US Fish & Wildlife that led up to the October 1 letter. At a certain point, one needs to ask whether being a champion of moderation, a passive witness, or a reluctant participant makes a difference in relation to a politically enabled beat-down.
This is the most political interference in a FERC licensing process that this author has seen in eighteen years as a practitioner of FERC relicensing.
Draft EIS for Yuba River Development Project Omits Key Recommendations to Improve the Lower Yuba River
The California Sportfishing Protection Alliance, as a member of the Foothills Water Network (FWN), submitted 74 pages of comments on July 30, 2018 to the Federal Energy Regulatory Commission (FERC) on the Draft Environmental Impact Statement (DEIS) for the relicensing of the Yuba River Development Project. The hydropower project features three powerhouses including New Colgate, one of the largest hydropower generators in the state. It is operated by the Yuba County Water Agency (YCWA).
FERC staff’s DEIS adopts most of the recommendations jointly agreed to and submitted by the parties to the project relicensing. FERC staff also recommends vehicular access to the North Yuba River below New Bullards Bar Dam and a plan to greatly increase the amount of large woody material in the lower Yuba River. However, the DEIS does not adopt recommendations for flows and channel improvements that were made by non-governmental organizations and federal and state fisheries agencies.
Nice lower Yuba River fish (T. Cannon)
Chris Shutes of CSPA commented: “Required flows in the lower Yuba River are needed to improve river habitat and to contribute flows into the Delta and San Francisco Bay. The flows recommended by the Foothills Water Network and two fisheries agencies [California Department of Fish & Wildlife, U.S. Fish & Wildlife Service] would meet those needs while protecting local agriculture and YCWA’s revenues.”
FWN’s comments and recommendations urge FERC to require improved river flows, floodplain restoration, monitoring for water temperature, monitoring of salmon, steelhead and sturgeon, and mitigation for cumulative environmental project effects. FWN strongly recommends that FERC approve the establishment of an Ecological Group that would provide non-governmental stakeholders a defined role in the implementation of a new FERC license. FWN also urges FERC staff to update the way it analyzes the economics of electricity sales and to improve its analysis of water sales.
The comments were signed by 14 groups, including fishing organizations, a Native American tribe, conservation organizations, and an organization that represents whitewater boating businesses.
The comments are linked here: FWN YRDP DEIS comments Final 073018
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.