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Newsom “Strategy” Condemns Central Valley Salmon to “Hotter, Drier Future”

The “California Salmon Strategy” announced January 30, 2024 by the Newsom Administration is a tour de force of avoidance and deflection. It blows right past the single largest issue facing California’s salmon: inadequate flows into and through the Bay-Delta Estuary.

The Newsom administration has been, and continues to be, on the wrong side of Delta flow. The new Strategy document does not cure that unacceptable position. On the contrary, it ducks it.

The Newsom administration is the ringleader of the “Voluntary Agreements” that would increase Delta inflow and outflow by an average of about 5%. A flow increase of 5% is far, far short of what the State Water Board is proposing for the update of the Bay-Delta Plan and what its science says Central Valley salmon need. If it were dollars, 5% wouldn’t even pay the sales tax.

Worse, the Newsom administration is a vocal supporter of two huge water development projects in the Central Valley: the proposed tunnel under the Delta (branded “Delta Conveyance”), and Sites Reservoir. Those two projects alone would take more water out of the Delta than the Voluntary Agreements would put in.

The net result of marginal increases in Central Valley flow – or net loss of flow with the tunnel and Sites – means that salmon in Central Valley rivers and the Delta will face conditions that are drier and hotter than today. And today’s conditions for salmon are so bad that salmon fishing was closed in 2023 and is almost certain to be closed in 2024.

If the Newsom administration:

•   Directs the State Water Board to update the Bay-Delta Plan           without the woeful Voluntary Agreements;
•   Abandons the tunnel and opposes Sites; and
•   Adds definition and specificity to a lot of the vague promises         in its Strategy document;

then it would have a pretty decent salmon strategy.

Digging Deeper into Newsom’s Plan

The positive elements in the Strategy don’t offset the issues avoided. The positive elements primarily deflect attention from the Newsom Administration’s fundamental shortcomings on salmon management.

In addition, many of the potentially positive elements are vague, programmatic, qualified with wiggle words like “depending on available resources,” and/or aspirational.

Still, what’s in the Strategy warrants analysis and improvement.

Fish Passage and Dam Removal

The Strategy calls for removing two dams on the Eel River. The clear support is new and is particularly welcome. Scott Dam and Cape Horn Dam need to go. Quickly. State support is not likely to define the outcome, but may accelerate and help finance it.

The Strategy calls for completing already-underway dam removal projects on the Klamath River, Matilja Creek, and Malibu Creek. The State had a big role in Klamath dams getting out, and deserves a huge amount of credit. State support may hasten completion of the other removal projects.

The Yuba fish passage plans are a mixed bag.

Salmon reintroduction to the upper Yuba River needs to happen, and has been under study and in planning for three decades. But the current funding plan for a pilot reintroduction of salmon upstream of major Yuba River dams had a separate cost to salmon: State support for status quo flows in the lower Yuba River. Trading habitat for flow, a frequent theme of the Newsom administration, is not acceptable.

In addition, the planned fishway at Daguerre Point Dam in the lower Yuba River would, for the first time, allow striped bass, which eat juvenile salmon, direct access to areas in the lower Yuba where most salmon now spawn and grow. The fishway design needs to be fixed so that doesn’t happen.

The Strategy proposes “fish passage” on Battle Creek dams. PG&E is planning to abandon the use of those dams, though, true to form, PG&E is slow-rolling the process. The Battle Creek dams accessible to salmon under natural conditions don’t need fish passage. Those Battle Creek dams need removal, and the sooner the better.

There are several proposed fish passage improvements on the lower Feather River. They are good. They should have happened a long time ago.

There is a support for further development of a pilot trap-and-haul reintroduction of salmon to the upper North Fork Feather River, and for parallel improvements at the Feather River Fish Hatchery to support that project. Great idea. We support. This took almost 20 years to start while PG&E and the State Water Contractors slow-rolled the Oroville Habitat Expansion Plan.

The Strategy proposes further evaluation of salmon reintroduction above dams. The Tuolumne is a leading candidate, and most of the initial evaluation is already done. The Governor needs to twist some arms in San Francisco to get a Tuolumne reintroduction program started.

There are programmatic measures, for the most part all good, though many are too vague or uncertain to truly evaluate.

Habitat Restoration and Expansion

The Strategy proposes to plan many projects to restore and expand habitat.  They are generally good things.  They are not a substitute for adequate flow.

Flow “in Key Rivers at the Right Times”

Recall that the primary purpose of the Strategy is avoidance and deflection of Delta flow issues, the Delta tunnel, and Sites Reservoir.

The phrase “at the right times” is a code word for “using as little water as possible.” “In key rivers” means “as little water in the Delta as possible.”

The Strategy does discuss the update of the Bay-Delta Plan. It is worth quoting Section 3.4 exactly, because the deception is subtle:

By 2025, adopt an updated Bay-Delta Water Quality Control Plan, which could include potential Voluntary Agreements to Support Healthy Rivers and Landscapes, to protect beneficial uses including the protection of salmon, steelhead, and other
native aquatic species.

Not only “could” an updated Bay-Delta Plan include Voluntary Agreements, those agreements will be the Plan if the Newsom administration has anything to say about it. The administration sent the Secretary of the Natural Resources Agency to lobby the State Water Board hard on the Voluntary Agreements on December 11, 2023. Every indication is that if the Board does not accept the Voluntary Agreements, the administration will revert from a position urging haste to its previous position of promoting indefinite delay.

For geographic areas where there is less formidable pushback, the Strategy is more aggressive. It promotes flows requirements on the Scott and Shasta rivers, though with happy buzzwords that speak long on process and short on results (“local partners on locally driven solutions and coordinating on options for incentivizing the reduction of diversions and groundwater pumping.”)

In 2024, the Strategy will “begin review” of flows on Antelope, Mill, and Deer creeks.

In 2025, the Strategy promises to “continue advancing collaborative work with stakeholder groups to implement flow solutions in Butte Creek.” The collaborative work on the upper reaches of Butte Creek has been stymied for 18 years. What is needed there is not “flow solutions.” What’s needed is reliable delivery of water from the West Branch Feather River to Butte Creek. If the State really wants to help, it should take over PG&E’s dog-eared DeSabla hydroelectric project and bypass its leaky old Hendricks Canal with a tunnel.

There are other long-deferred projects to set instream flows on priority streams, “depending on available resources.” They’re all good things to do, if they happen.

Hatchery Upgrades

They’re all good; CSPA supports. Hatcheries are a stopgap, but as long as they’re needed, they ought to be managed to produce fish efficiently, reliably, and abundantly. Survival of hatchery smolts trucked to the Bay or ocean is up to two orders of magnitude greater than smolts released from hatcheries into rivers in dry years. Filtration for hatcheries is needed across the board, especially, but not only, to enable reintroduction of salmon upstream of hatcheries.

The Merced River needs a new salmon hatchery upstream of Lake McSwain. The Merced also needs a conservation hatchery for native trout from remnant populations in and around Yosemite, and perhaps for spring-run salmon for reintroduction to the Tuolumne.

Improving Technology and Management

It’s hard to argue with improving technology. However, old marking technology did allow the potential for marking all hatchery fish to create a “mark-selective” salmon fishery that would allow harvest of hatchery fish only in years following small runs of spawning salmon. Given recent events, this is worth another look.

As far as management goes, most of the previous efforts at management committees for salmon oversight have not gone well. They have been dominated by politics and economics. The single greatest prospective management improvement for salmon is better management of water to assure salmon of adequate flows and cold water.

Partnerships

The administration’s recent emphasis on partnership with Tribes is all to the good. Perhaps soon that will extend to the repeatedly expressed concerns of many Central Valley Tribes, who have argued that lack of flow and poor water quality impedes Tribal beneficial uses.

On another front, the Strategy says: “While regulatory tools help establish standards, they have limitations . . .” From our perspective, the limitations are primarily that the State’s regulators pass weak standards according to what their “partners” in the regulated water community decide they can live with. Then the regulators substitute “partnership” and “collaboration” for enforcement.

The culture of anti-regulation becomes acute after the over-delivery of water in a first dry year, followed by the Governor’s “emergency” weakening of standards in dry years that follow. Salmon have gotten hammered in droughts in the last decade. Any serious response to protecting salmon under climate change involves knocking off the “temporary” change gambits that weaken protections in every dry year.

As for environmental and fishing non-governmental organizations, the administration’s price for “partnership” in the Central Valley has been acceptance of the unacceptable: Voluntary Agreements, Delta tunnel, Sites Reservoir. And “emergency” drought proclamations.

Conclusion

The treatment of Central Valley and Delta flow in the Newsom Administration’s new Salmon Strategy is reminiscent of the lines from Harry Belafonte:

She brought me a little coffee
She brought me a little tea
Well, she brought me nearly every damned thing
But she didn’t bring the jailhouse key

The key to the Governor’s escape from the confinement of bad salmon management is addressing the big, hard issues. The same thing that’s wrong with the Governor’s Salmon Strategy is what was wrong with the Governor’s Water strategy (“California’s Water Supply Strategy: Adapting to a Hotter, Drier Future,” August 2022): the State needs to confront its overallocation of water.

The State needs to devote enough water, through flow and storage, to salmon and other elements of the Bay-Delta watershed’s ecosystem. That begins with adoption of a high-flow Bay-Delta Plan and reductions in agricultural water use, both structurally and in response to short-term hydrology.

The Governor’s supply-side approach to water supply, most acutely embodied in his support of the proposed Delta tunnel and Sites Reservoir, is backwards. As long as Central Valley salmon are relegated to the leftovers of an ever-shrinking natural supply of water, they will never recover.

Posted in Authors, California Delta, Chris Shutes | Comments Off on Newsom “Strategy” Condemns Central Valley Salmon to “Hotter, Drier Future”

How A Lack of Regulatory Oversight Dried Up the Merced River – The State Water Board Needs to Protect Merced River Flows Now

Merced River, Yosemite Valley, Oct. 2022 / Dead Lower Merced River  Aug. 2022

The Merced River, the iconic wild and scenic river flowing out of Yosemite National Park, died in the summer of 2022 upstream of its confluence with the San Joaquin River.  The river was completely dewatered from July 7 to October 7.

It was dead for 3 months over a nearly 5-mile stretch.  It could not offer fishing, swimming or any other water-based recreation in the hot summer months.  In the early fall, the Chinook salmon were unable to migrate on schedule to the Merced to spawn, and total fish return numbers for the year were dismal.  Their migratory route, the river, had been transformed into a dry wash used as a raceway for off-highway vehicles.

This wasn’t the first time the Merced River died, but hopefully it will be the last time.  The California State Water Resources Control Board (State Water Board or Board) must do its job and take action now to ensure year-round minimum flows for the river.

On January 8, 2024, CSPA joined Friends of the River in sending a joint letter to the State Water Board urging it to adopt permanent minimum flow regulations on the Merced River to prevent this disaster from ever happening again.  Our letter was in support of letters that the National Marine Fisheries Service (NMFS) and the California Department of Fish and Wildlife (CDFW) sent to the Board in the fall of 2022 and spring of 2023.

These letters alerted the Water Board of the severity of the dewatering and included the following key points:

  • Requiring flows for only a portion of the year is not adequate. (Note: The approved 2018 Bay-Delta Plan Amendment only has required minimum flows from Feb. – June, none for the hot, dry months of summary/fall. In addition, the Plan has yet to be implemented).  Year-round flows are needed to assure base flows over the dry season.  NMFS recommended interim base flows in the lower river derived from the California Environmental Flows Framework (CEFF) until future studies can refine necessary flows.
  • Permanent minimum flows in the Merced River are needed to provide a migration corridor for federally-listed Central Valley steelhead and for spring-run and fall-run Chinook salmon.  The Merced River needs to be connected to the San Joaquin River with enough water depth for fish to pass upstream to the spawning grounds.
  • The Board should immediately expand necessary monitoring, evaluation,
    and reporting of water diversions to ensure compliance with existing water rights in the Merced River watershed.
  • The Basin Plan for Sacramento and San Joaquin River Basins identifies the beneficial uses of the Merced River from McSwain Reservoir to the San Joaquin River as: recreation, including fishing, canoeing and rafting; warm and cold freshwater habitat; migration; spawning; and wildlife habitat.  All these beneficial uses require flowing water in the stream.
  • Flows at the confluence of the Merced River are essential for an overall functioning ecosystem and riparian habitat in this major watershed.

In response to these letters, Board staff met with NMFS and CDFW staff for a discussion in early 2023.  So far, the Board has yet to propose any solutions.

On December 5, 2022, Merced Irrigation District (Merced ID) submitted a letter to the Board in response to NMFS’s October 27, 2022 letter.  Merced ID outlined its compliance with its regulatory flow requirements at compliance points on the river.   It found “flow losses in the lower river downstream” from Shaffer Bridge.  Merced ID also wrote it is aware that a number of unauthorized and unpermitted diversions have contributed to reduced flows and drier river conditions downstream of Merced ID’s diversions and in the areas described in NMFS’s letter.  Merced ID wrote that it has repeatedly requested that the State Board take action to regulate and limit those unauthorized diversions, including appointing Merced ID as watermaster for the lower river.  Merced ID requested that the Board take charge of investigating possible illegal diversions.

Another example of the Board’s failure to take action is illustrated in a 2016 water rights complaint made by the Stevinson Water District  (SWD), which is located at and around the confluence of the Merced and San Joaquin Rivers.  SWD wrote that the Merced was “a practically dead river,” and that flows were zero at Stevinson according to the CDEC water gauge.  The letter requested immediate investigation of unlawful diversions. The Board’s much-delayed response, after a five year wait, was a letter dated July 23, 2021.  The Board stated, “During the previous drought the Division’s resources were overwhelmed, and we were unable to process your complaint.  It is impractical for staff now to investigate alleged violations from the previous drought… For this reason, the Division [of Water Rights] is exercising discretion and will take no further action on this complaint.”

CSPA agrees that there is a need for more robust monitoring of any and all diversions on the lower Merced River.  The issue does not stop at unauthorized diversions.  The State Water Board must also prevent authorized diversions from cumulatively drying up the river.  It is well-settled law that “no party can acquire a vested right to appropriate water in a manner harmful to public trust interests and the state has ‘an affirmative duty’ to take the public trust into account in regulating water use by protecting public trust uses whenever feasible.” (Light vs. State Water Board).  It is also well-settled law that “no one can have a protectible interest in the unreasonable use of water.” Id.

Several mechanisms come to mind.  A responsible entity is one: to shut down unauthorized diversions, to curtail diversions in order of priority, and to limit riparian diversions to natural flow and the flows released by Merced ID to meet the adjudicated Cowell Agreement.  Another potential mechanism is the water quality certification for the Merced River Project relicensing: requiring enough flow at Shaffer Bridge to keep the river watered to the confluence with the San Joaquin.  The flows required by the Federal Energy Regulatory Commission aren’t doing the job now, and as proposed, likely won’t do the job under a new FERC license either.

CSPA urges the State Water Board take action now to prevent future dewatering.  It remains an unaddressed, unregulated, and unenforced problem.  With no consequences or enforcement during past dewatering events, it was no surprise the dewatering occurred again during California’s latest extended drought.  The lower Merced River needs permanent protections requiring year-round base flows as well as enforcement of water rights.

 Further Background:

The New York Times published an article on January 18, 2023 about the Merced River dewatering which called into question the State Water Board’s ability to manage water supplies.

For additional photos, maps, flow data, and salmon return information about the Merced River dewatering in 2022, go to the California Department of Fish & Game’s Case Study: Lower Merced River Disconnect:

The California Data Exchange  water gage at Stevinson on the Merced River near the confluence with the San Joaquin River provides current and historical flow information.

Posted in Water Quality | Comments Off on How A Lack of Regulatory Oversight Dried Up the Merced River – The State Water Board Needs to Protect Merced River Flows Now

CSPA Submits Comments on Proposed Bay-Delta Plan Update

On Friday, January 19, 2024, California Sportfishing Protection Alliance and AquAlliance submitted comments on the State Water Resources Control Board’s (State Board’s) proposed changes to the Bay-Delta Plan.

The State Board proposed these changes in a Draft Staff Report (Report) released on September 28, 2023. The stated objective of the Plan update is to provide for “the reasonable protection of fish and wildlife in the Sacramento River and its tributaries, Delta eastside tributaries (including the Calaveras, Cosumnes, and Mokelumne Rivers), and Delta.”

The release of the Report is welcome. As stated in the comments, “The status of the aquatic ecosystem and fisheries of the Bay-Delta estuary and its greater watershed is dire and worsening.  We urge the State Water Board to act urgently on the Report with an update to the Bay-Delta Plan that supports restoration of the ecosystem.”

The Report proposes a Delta inflow and outflow objective of 55% of the unimpaired flow. CSPA supports the approach of the objective in using a percent of unimpaired flow. However, 55% does not provide enough flow to restore the Bay-Delta watershed and estuary or to “support and maintain the natural production of viable native fish populations.”

CSPA’s comments also support the proposed “complementary” objective of maintaining reservoir storage to protect water temperatures and to have a reserve in case the following years are dry.

The comments call on the State Board to conduct further analysis to allow sufficient flow to restore ecosystems while maintaining reservoir storage and limiting impacts to water supply.  CSPA states that agricultural water supply must be limited compared to current use, especially in dry years and dry year sequences.

CSPA criticizes the Report for failing to give due weight to the common-law public trust doctrine and to the reasonable use doctrine as part of the foundation of the Report’s analysis.  In California, water “belongs to the people.” “Put in the context of rights to water, a user of water must respect the rights and interests of others, including the peoples’ property right to robust fisheries, clean water, and healthy ecosystems.”

In general, the comments approve of the scope of issues that the Report tackles, including objectives or alternatives that address Delta export limitations, droughts, the direction of flows within the Delta, new water rights, and increased diversions. However, the solutions the Report proposes generally don’t take the direction far enough to meet the legal requirements to effectively protect fish and wildlife.

CSPA’s comments excoriate the Report’s inclusion of the Voluntary Agreements (VAs). “The Voluntary Agreements have no business in the Draft Staff Report.” The VAs were negotiated amongst water user interests and government agencies without environmental groups, native tribes, and other stakeholders. The purpose of the VAs is to replace protective flows with physical habitat changes and money.

CSPA concludes by calling on the State Board to correct the errors and omissions in the Report, to conduct additional analysis, and to produce a revised report consistent with the law.

A timeline for next steps is not yet clear, but the State Board has announced its intention to act on the Report by the end of 2024.

Posted in State Board Bay-Delta Standards | Comments Off on CSPA Submits Comments on Proposed Bay-Delta Plan Update

The Delta Conveyance Project: Either We Survive Together or Perish Together

On December 8th, 2023, the Department of Water Resources (DWR) issued the Final Environmental Impact Report (Final EIR) for its proposed Delta Conveyance Project, informally called the Delta tunnel.

During the required comment period following DWR’s release of its Draft Environmental Impact Report (Draft EIR), the public, native tribes, and non-governmental organizations submitted 700 letters and 7,000 comments. Many of these letters and comments raised substantive concerns about the Project’s potential negative impact on the environment and on communities who live within the Delta region and watersheds.

DWR claims that its Final EIR  “responds to all substantive comments.” Chris Shutes, executive director of California Sportfishing Protection Alliance (CSPA) said DWR simply affirmed that its Draft EIR “was right on just about everything,” but was (perhaps unintentionally) candid in recognizing that “[i]ncreased flow through the Delta is not consistent with the project purpose” of the Delta tunnel.

Key Facts about the Delta Conveyance Project

The Delta Conveyance Project is a proposed 40-foot-diameter tunnel that would extend for approximately 45 miles. The proposed underground tunnel would take water from the Sacramento River before it enters the Delta. The water would then enter the State Water Project’s (SWP’s) 444-mile-long aqueduct to be exported for agricultural and urban use in central and southern California.

DWR’s Final EIR said that since the 1960s, when the SWP began, “regulatory changes intended to better protect fish and wildlife resources in the Delta “have reduced the amount of water that the SWP can export from the Delta to central and southern California.”

Delta smelt, for example, are an endemic species vital to the Delta’s ecosystem. In the 1980s the Delta smelt population declined by more than 80 percent. In 1993 Delta smelt were listed as threatened under federal and California endangered species acts. In 2007, this designation forced DWR to cease pumping water when hundreds of Delta smelt perished at south Delta pumps.

Governor Newsom and DWR assert that the Delta Conveyance Project will improve the SWP’s ability to export water to southern parts of the state in the face of climate change, droughts, potential earthquakes, and levee failures. They frame it as “modernizing” infrastructure. Delta defenders respond that the concept is 30-plus years old and uses modernist branding to justify the obsolete strategy of diverting still more water from an overtapped ecosystem.

Potential Impact to Fisheries

Dan Bacher reported that in 2022, the Department of Fish and Wildlife found zero Delta smelt in their surveys of the Delta. Bacher also reported that according to the CSPA, longfin smelt had declined by 99.96%, American shad by 67.9%, splittail by 100%, and threadfin shad by 95%.

The Center for Biological Diversity reported that “at least a dozen of the Delta’s original 29 indigenous fish species have been eliminated entirely or are currently threatened with extinction.”

Jon Rosenfeld, science director at San Francisco Baykeeper said the “Delta tunnel will divert excessive amounts of water from the Bay, and make matters worse for the fish and communities that depend on this ecosystem. The science clearly demonstrates that fish need increased river flows to survive, but state agencies are ignoring it.”

Rosenfeld went on to say “Because of excessive water diversions, the list of fish native to San Francisco Bay and its watershed that are verging on extinction continues to grow, and our fisheries are increasingly shut down.”

Department of Water Resources Responds to Comments

In ‘Common Responses,’ Volume Two of the Final EIR, DWR said that many commenters asserted that the Department’s Draft EIR, “should have included objectives to restore the Delta ecosystem, restore populations of specific species,” and “protect Delta water quality.”

DWR responded saying commenters had incorrectly conflated the goals of the Delta Conveyance Project with the goals of the Sacramento-San Joaquin Delta Reform Act of 2009. The Delta Reform Act of 2009 recognized that protecting the Delta’s ecosystem was of equal importance to securing a reliable water supply, a “coequal goal.”

DWR said that the underlying purpose of the Delta Conveyance Project was not to restore the Delta. DWR went on to say that it has the discretion to address the risks to SWP exports “without also restoring the Delta ecosystem” as long as sometime, somebody else takes care of the ecosystem.

More specifically, DWR said it has no responsibility to recommend flows through the Delta. This statement runs contrary to the purpose of producing a Final EIR for the Delta Conveyance Project. The purpose of producing a Final EIR for the Project is to inform the State Water Board and DWR of the Project’s potential negative impacts and the potential strategies to mitigate those impacts. A Final EIR for the Delta Conveyance Project that omits discussion of recommended flows through the Delta does not adequately support the decision making of the State Water Board and DWR.

Further, the Delta Reform Act explicitly requires: “Any order [by the State Board] approving a change in the point of diversion of the State Water Project or the federal Central Valley Project from the southern Delta to a point on the Sacramento River shall include appropriate Delta flow criteria…” [emphasis added]

An Alternative Path

To assure that the goal of restoring the Delta ecosystem is achieved, CSPA offers an alternative pathway to the overdevelopment of California’s water resources.

  • Above all, bring water allocation into balance with actual supplies and reduce water exported from the Delta, in part by retiring drainage-impaired lands on the Westside of the San Joaquin Valley.
  • Route freshwater through the Delta and increase outflow to restore and protect the estuary’s water quality and fisheries.
  • Raise and strengthen existing Delta levees to withstand potential earthquakes, floods and rising sea levels for a fraction of the cost of peripheral conveyance.
  • Increase reliance on local water supplies by investing equivalent dollars in reclamation, reuse and conservation.

For further discussion, see also the Revised Environmental Water Caucus Report.

The Next Steps

On December 21st, 2023, the Department of Water Resources published the Notice of Determination (NOD) for the Delta Conveyance Project. The publication of the NOD initiates the 30-day period in which the public can file litigation against the Project Plan and the Final EIR. CSPA will be one of the litigants.

In 2024, DWR will file a petition to change its water rights to include a new point of diversion in the north Delta. Later, the State Water Board will issue a notice of DWR’s petition and solicit protests. At least six months after protests are filed, the State Water Board will hold hearings on DWR’s request to change its water rights. Similar hearings in the past lasted more than two years.

The End Game

 Proposals to build an alternative conveyance to export Sacramento River water to the southern parts of the state have come and gone for decades. Yet, every iteration of the Delta Conveyance Project has failed to reach the point of breaking ground.

In part, these failures have been due to the work of what Bill Jennings, former executive director of CSPA called the “oddest coalition” of fishing groups, environmental advocacy groups, Native American Tribes, environmental justice groups, Delta agriculturalists, and business people.

In a 2012 documentary produced by Restore the Delta, Jennings said these groups have come together to “fight for this estuary because it’s worth fighting for, it’s a special place.”  “We all recognize that we’re going to survive together or we’re going to perish together. Our fates are intertwined.”

 

Posted in Fisheries, No Tunnels Campaign, Water Quality | Comments Off on The Delta Conveyance Project: Either We Survive Together or Perish Together

CSPA Strong after 40 Years: We Will Not Surrender this Delta!

The California Sportfishing Protection Alliance celebrated its fortieth birthday in 2023.  CSPA’s year of birth, 1983, was one year after California voters voted down the “peripheral canal” to divert water around the Delta.

CSPA’s mission to protect fisheries, habitat, and water quality is a good idea that lives on.

Unfortunately, the Department of Water Resources’ obsession to divert fresh Sacramento River around the Delta is a bad idea that just won’t die.

From about 2006 to 2014, it was recalled to life as the Bay Delta Conservation Plan, or BDCP.

From 2015 to 2018, DWR jauntily rebranded it the “California WaterFix,” aka the “twin tunnels.”

Now, certified by DWR in December 2023, it’s the Environmental Impact Report for the “Delta Conveyance Project.”  Soon to follow is another massive water rights hearing.

DWR says it’s about a single tunnel around and under the Delta.

CSPA says it’s a project to convey the Delta straight to hell.

CSPA needs your support to drive a stake back into the heart of the project that once again rises from the dead.  Please join CSPA, renew your membership, and/or make your year-end donation to CSPA today!  It’s all tax-deductible.  And it’s for a natural legacy that’s worth saving, now more than ever.

There is so much we could say.  But in recognition of the first anniversary of the death of CSPA’s longtime leader Bill Jennings, we can’t say it much better than Bill Jennings’s 2013 Speech at Rally Protesting Bay Delta Conservation Plan, for which we also provide a link on YouTube.

Text of Bill Jennings’s 2013 speech: 

Good afternoon. And so on this chilly Friday the 13th, the BDCP public comment period begins. They gave us 40,214 — I counted ’em — pages of documents. And that’s a nine-foot-high stack containing 20 more pages than the 32 volumes of the last printed edition of the Encyclopedia Britannica. And we’re asked to provide comments within 85 working days — that’s 473 pages a day. And if you want a printed copy, you can go over and they’ll show you one for 3000 dollars. And when you turn the pages, you’ll discover what William Burroughs meant when he observed that a paranoid schizophrenic is simply someone who’s discovered what’s going on.

Since the State Water Project began exporting water in 1967, water exports have increased by more than 60%. Outflow to the Bay has declined by more than 40%. The flow and water quality standards protecting the Delta have been violated hundreds of times without a single enforcement action taken. The Water Code area of origin/watershed protection statutes have been ignored, and so it’s not surprising that the Delta’s biological tapestry is hemorrhaging. Populations of Delta smelt are down 98.9%. Striped bass 99.6%. Longfin smelt 99.7%. American shad 89.1. Threadfin shad 98.1 and Splittail 99.4%. And the anadromous fisheries have experienced similar declines. For example, winter-run salmon and wild steelhead are down 95.5 and 91.7%, respectively. Fisheries that evolved over millennia have been destroyed by greed in mere decades.

And now the architects of this biological meltdown present us with a 40,000-page omelet of distortion, junk science, half-truths and outright lies designed to create an artificial reality that you can restore an estuary disintegrating from lack of fresh water flow by stealing more water from it. They proposed to build the tunnels now and decide how to operate ’em later. That’s not restoration. That’s a death sentence for one of the world’s great estuaries.

Well, you won’t find any ideas or answers to how much water the Delta needs, how much water will be exported. Who has the legal rights to this water? And who is going to pay for this $50 billion scheme? Nor will you find responses to the federal agencies and independent scientists who have scathingly criticizing the draft versions of the scheme as biased, flawed, unsupported and highly speculative. That it will lead to species extinction. The State Water Board’s observations that the tunnels will provide less water than presently exported, if adequate fishery protection measures are established.  Independent economists, who have ridiculed the economic assessment and pointed out the huge financial risks.

It will saddle the public with vast debt, undermine regional water self-sufficiency, and the water will simply be too expensive for farmers unless heavily subsidized by urban ratepayers. We will not allow our fisheries, farms, communities and future prosperity to be sacrificed to enrich a south Valley industrial agriculture that comprises 3/10 of 1% of the state economy and is predicated upon embezzled water, massive public subsidies, unrestricted pollution, and subsistence wages.

We’ll fight this abominable scheme through the administrative halls, the court rooms, and the ballot box if necessary. If necessary, we’ll fight over channels and sloughs and on the television, through the field to the very gates of hell. We will not surrender this Delta! Thank you.

Renew your membership, join CSPA, or donate today!!!

Posted in No Tunnels Campaign, Press Release | Comments Off on CSPA Strong after 40 Years: We Will Not Surrender this Delta!

California’s White Sturgeon: An Endangered Species within the Foreseeable Future

On November 30th, 2023, San Francisco Baykeeper, California Sportfishing Protection Alliance (CSPA), the Bay Institute, and Restore the Delta petitioned the California Fish and Game Commission to list the state’s white sturgeon as “threatened” under the California Endangered Species Act. The coalition also petitioned United States Secretary of Commerce Gina Raimondo and NOAA Fisheries to list California’s white sturgeon as threatened under the federal Endangered Species Act.

San Francisco Bay and parts of its watershed are home to California’s only population of reproducing white sturgeon. Since the early 2000’s, writes Robin Meadows, white sturgeon abundance has dropped by two-thirds. San Francisco Baykeeper science director Jon Rosenfield said that the Bay’s white sturgeon population “has experienced a persistent and dramatic population decline because state and federal agencies allow too much fresh water to be diverted from the Bay’s Central Valley tributaries to supply industrial agriculture and large cities.”

Mismanaged water, pollution, algal blooms, and overharvest are “speeding the white sturgeon down the road to extinction.” The coalition’s petitions state that “these problems are independent of each other – addressing just one or two of these major problems will not eliminate the high risk” that the Bay’s white sturgeon will become endangered. The coalition also said that protecting the Bay’s white sturgeon from extinction requires “a coordinated response to these individual and collective threats.”

Key Features of the White Sturgeon’s Life Cycle

White sturgeon are large, resilient fish that can weigh up to 500 pounds and can live for up to a hundred years. The coalition’s petition states that the long lifespan of white sturgeon has historically enabled them to “persist and maintain a relatively stable population through periods where riverine spawning and early rearing habitats were unsuitable,” such as drought conditions. On the other hand, white sturgeon can take up to 19 years to reach reproductive maturity. Thus, “Reliably high adult survival is essential to the success” of the population.

The Bay’s white sturgeon spend most of their lives in saltwater but return to deep freshwater to spawn. White sturgeon can spawn multiple times within their lifespan but do not spawn every year. As stated in the petition, “Successful reproduction occurs episodically, when spring-summer river flows are high enough to support incubation and early rearing success.”

The Role of Water Management in the Decline

The Bay’s white sturgeon population can withstand naturally occurring droughts, but it cannot withstand, as stated by Gary Bobker of the Bay Institute, “California’s disastrous water management policies.”

The Newsom Administration continues to move ahead with water policies and developments that will divert more water away from the Bay. Sites Reservoir and the Delta Conveyance Project (Delta tunnel) are two of these developments. The petition states that if Sites Reservoir and the Delta tunnel come to fruition, they would “reduce the frequency and magnitude of high spring-summer Delta inflows and outflows.” This in turn would reduce the “frequency and magnitude” of successful white sturgeon reproduction.

The State Water Resources Control Board has admitted that “existing requirements for water quality and flow” do not adequately protect white sturgeon and other native fish. While the State Board has issued a draft staff report that proposes new flow standards for the Bay-Delta estuary, the petition states that the new standards as proposed will still fall short in providing white sturgeon with the flow conditions they need to “sustain their populations and fully recover.”

The State Board has also allowed a consortium of water users to propose “Voluntary Agreements” as an alternative in the standard-setting process. These agreements among state water contractors and agencies would provide far less flow in the Delta and its tributaries than the State Board’s proposed new standards.

Algal Blooms in the Bay Have Killed Hundreds of White Sturgeon

Over the past two years, there have been catastrophic algal blooms in the greater San Francisco Bay that caused the death of hundreds of mature white sturgeon.

Nutrient-rich effluent from nearby municipal wastewater treatment plants and oil refineries have made the Bay “one of the most nutrient-enriched estuaries in the world.” In the summer of 2022, an algal bloom dubbed the “red-tide” struck the Bay.

High nutrient levels, warm temperatures, and low water flows provided the perfect conditions for the alga heterosigma akashiwo to flourish. This alga depletes oxygen in water, creating fatal conditions for fish and wildlife.

Paul Richards reported that “volunteers counted 400 dead white sturgeon after the red-tide event.” This number only represents a portion of suspected deaths as “sturgeon tend to sink after they die.”

State officials claimed that climate change was the primary cause of the red-tide event. Indeed, 2022 was a dry year, but it was followed by a very wet 2023. Despite the abundant water in 2023, another, though less severe, red-tide event occurred in the Bay.

In a press release responding to the 2023 event, Tom Cannon, an estuarine fisheries ecologist with California Water Impact Network, said, “Unlike 2022, Shasta is now full. The water contractors are getting everything they want and more. Every almond and pomegranate tree in the Central Valley is just sopping with water. There’s enough water for the salmon. Enough for the sturgeon. They’re just not getting it.”

Cannon went on to say that there “were maybe 10,000 sturgeon in the estuary before these events. The total population is certainly a fraction of that now. The Bay’s sturgeon population simply can’t take these kinds of hits and survive. They need more water, and they need it right now.”

How Fishing Fits into the Overall Decline

Insufficient freshwater flows in the Delta and its tributaries have led to low rates of successful white sturgeon reproduction. Algal blooms and poor water quality, especially in the Bay, threaten remaining adult white sturgeon. In these conditions, the white sturgeon population is “highly sensitive to overharvest.”

Commercial fishing of the Bay’s white sturgeon “peaked in 1887, with a haul of more than 1.5 million pounds.” By 1917, the state banned commercial fishing of white sturgeon due to a stark population decline. In 1954, the state permitted recreational fishing of the Bay’s white sturgeon.

Currently, the state permits recreational anglers to catch one fish per day within a specified size range and three fish annually. The petition states that the best available science provides no evidence that these harvest levels are sustainable. The coalition advocates for the state to restrict recreational fishing of the Bay’s white sturgeon to catch and release only.

Chris Shutes, executive director of CSPA, said, “Bad water management is devastating California’s fisheries, and people who fish are left to shoulder far too many of the consequences.” Yet he maintains some hope: “There’s still a chance for sturgeon to be plentiful and rebound.”

And thus, the Endangered Species Acts

To save this ancient fish, the Newsom Administration and relevant state and federal agencies must address excessive freshwater diversions, pollution, algal blooms, and overharvesting. Their failure to take decisive action is why petitioning organizations have turned to state and federal endangered species acts to protect white sturgeon.

Posted in Fisheries, State Board Bay-Delta Standards | Comments Off on California’s White Sturgeon: An Endangered Species within the Foreseeable Future

CSPA is hiring an Administrative Assistant and Advocate Trainee!

The California Sportfishing Protection Alliance (CSPA) is looking for an administrative assistant and advocate trainee. This is a part-time contract position starting at about 20 hours per week. Work will be remote at the contractor’s home. CSPA’s main place of business in is in Berkeley. CSPA, a 40-year-old non-profit organization, is a recognized leader in water policy, protection of fisheries and fishing opportunities, and water quality enforcement in California.

Please see job description and application instructions here.

Make a difference for our waterways! Join the great CSPA team!

Posted in Miscellaneous | Comments Off on CSPA is hiring an Administrative Assistant and Advocate Trainee!

More Delta Flow or Delta Tunnel? One Good Decision Will Stop the Next Bad Decision

On December 8, 2023, the Department of Water Resources (DWR) issued its Final Environmental Impact Report (FEIR) for its Proposed “Delta Conveyance Project” (aka tunnel under the Delta).  In thousands of pages of responses to comments, DWR affirms that its Draft EIR was right on just about everything.

One thing DWR says it was right about is how it didn’t need to analyze an alternative that looked at increasing flow through the Delta.  The reasoning is telling: “Regarding the comment regarding an alternative with increased unimpaired flow, such an alternative was determined to not be consistent with the project purpose nor would it meet most of the stated basic project objectives in Chapter 2, Purpose and Project Objectives.” (FEIR Response to Comments, Table 4-4, p. 354).

Right.  Increased flow through the Delta is not consistent with the project purpose of the Delta tunnel.  CSPA knew that.  It’s good to see DWR fess up.

The Bay-Delta Plan offers the opportunity to restore enough Delta outflow to support restoration of the Delta and its aquatic ecosystem.  On the other side of the flow ledger, the Delta tunnel only works if there’s not enough Delta outflow to support restoration of the Delta.  Equally, Sites Reservoir only works if there’s not enough Delta outflow to support restoration of the Delta.

That’s why CSPA is fighting on all three fronts at once:

  • To support a workable high flow alternative for the update of the Bay-Delta Plan (Speaking to the State Water Board and preparing written comments on the Draft Staff Report/Substitute Environmental Document in Support of Potential Updates to the Water Quality Control Plan for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary for the Sacramento River and its Tributaries, Delta Eastside Tributaries, and Delta)
  • To respond to DWR’s flawed Final EIR for the Delta tunnel and to prepare for water rights hearings.
  • To respond to the Sites Authority’s flawed Final EIR for Sites Reservoir and to prepare for water rights hearings.

Adequate flows in the Bay-Delta Plan will change the entire calculus of the Delta tunnel and Sites.

But approval of the Delta tunnel and/or Sites will set in concrete arguments against a high flow alternative for the Bay-Delta Plan.

Restoration of the Bay-Delta estuary and California’s largest watershed, or increased overallocation of freshwater flows? That’s the question for California water in the next two years.

Posted in California Delta, Chris Shutes, No Tunnels Campaign, State Board Bay-Delta Standards | Comments Off on More Delta Flow or Delta Tunnel? One Good Decision Will Stop the Next Bad Decision

Nitrate Pollution: One Place Environmental Justice and Environmental Advocacy Meet

In 2021, the Central Coast Regional Water Board (Regional Board) adopted Agricultural Order 4.0. This order contained measures to reduce nitrate pollution in groundwater caused by the agricultural sector. Specifically, Order 4.0 set numeric limits to regulate the amount of chemical nitrate fertilizers growers could use in their fields.

In September 2023, the State Water Resources Control Board (State Board) issued Order WQ 2023-0081, which repealed Order 4.0’s numeric limits. At the same time, the State Board upheld Order 4.0’s omission of protections for rivers, streams, and riparian habitats. This decision will have statewide impacts because the State Board asserted that all its decisions on groundwater pollution are “precedential.”

In response, California Sportfishing Protection Alliance (CSPA) joined a lawsuit filed by a diverse coalition of environmental justice and environmental advocacy groups to challenge the State Board’s decision.

The coalition consists of rural Latino community and farmworker groups, recreational and commercial fishing groups, and environmental advocacy groups. In addition to CSPA, the coalition includes the San Jerardo Cooperative, Comité De Salinas, Monterey Coastkeeper, Pacific Coast Federation Of Fishermen’s Associations, Institute For Fisheries Resources, California Coastkeeper, The Otter Project, and Santa Barbara Channelkeeper. This coalition is diverse because the impacts of nitrate pollution on human communities and ecosystems are far-reaching.

Many Central Coast growers use more nitrate than their crops need.  When growers use fertilizers on their crops, nitrate not absorbed by crops can enter groundwater and surface water.

In response to the State Board’s decision, the coalition filed a petition for writ of mandate with the Superior Court. The petition states that “growers currently apply on average 340 more pounds of fertilizer nitrate than their crops take up and that is removed through harvest. In other words, the average grower discharges 340 pounds of nitrate into groundwater per acre, per year.”

High nitrate levels in drinking water cannot be removed by filtration. When people drink water with high nitrate levels, it exposes them to a higher risk of cancer, thyroid disease, vision problems, and skin rashes. When pregnant women and infants drink water with high nitrate levels, it can cause the blood disorder methemoglobinemia, which affects the body’s ability to produce oxygen. This condition can be fatal to fetuses and infants.

The San Jerardo Cooperative provides housing to low-income farmworkers. For almost 30 years, the community of San Jerardo has been “chasing clean water.”  Horacio Amezquita is the community’s general manager. In a 2019 CalMatters commentary, Amezquita wrote, “Since 1990, the people of San Jerardo have drilled one well after another, only to see each closed as a result of agricultural contamination including nitrates and pesticides.”

In 2012 the Regional Board adopted the first Agricultural Order that required growers and landowners to test wells for nitrate pollution. Angela Schroeter of the Regional Board reported that 26% of domestic wells tested were above the safe level for nitrate, and 10% of those were three times higher than the safe level.

The 2012 Order did not include any enforceable measures to reduce pollution. Communities affected were provided with funding for bottled water until new wells were dug. The expense for these new wells was reflected in water rate increases.

The coalition’s petition states that “San Jerardo residents now pay approximately four times as much for water as before the water contamination, even after factoring in assistance provided by state and federal government.”

Since 2012, nitrate pollution in Central Coast groundwater and surface water has become worse. Testing and voluntary measures were not enough to compel growers to reduce the amount of nitrate fertilizer they used on their crops.

In California, and particularly in the Central Coast Region, Latinos and other people of color are less likely than white people to have access to safe drinking water and healthy waterways for fishing and recreation.  In November 2021, the State Board passed a resolution to address policies that have led to this inequity.

In the resolution, the State Board said, “race is strongly correlated with more severe pollution burdens. However, until recently, few of the Water Boards’ policies, programs, or plans expressly considered or addressed racial inequities.”

The State Board’s decision to omit enforceable nitrate limits and protections for streams, rivers, fish, and wildlife is a continuation of this inequity.

The State Board’s failure to effectively regulate the agricultural sector’s pollution of groundwater, rivers, and streams also has far-reaching ecological impacts. A diverse cross-section of California’s population will feel these impacts.

Nitrate pollution in rivers and streams causes an overgrowth of harmful algae, making the water toxic to humans and animals. In a recent interview, Ted Morton of the Santa Barbara Channelkeeper said, “Although finding that surface waters were being contaminated by nitrates and pesticides, the Central Coast Regional Board’s Ag Order 4.0 did not include additional requirements for use of vegetated buffers between the edge of fields and nearby rivers, streams, and creeks that can reduce nitrate and pesticide pollution and provide habitat for wildlife.”

In a press release announcing their lawsuit, the coalition challenged the State Board’s decision to uphold Order 4.0’s lack of “buffers that would protect streams, rivers and wetlands from toxic pesticides while providing critical habitat to Central Coast fisheries, including threatened Steelhead.”

The petition filed by the coalition also contests the State Board’s assertion that no regional board in California has the power to adopt numeric limits to regulate the agricultural sector’s use of nitrate fertilizer. Despite “detailed factual findings in the Regional Board record,” the State Board delayed action pending review by an “expert panel.”  This will impede efforts to reduce nitrate pollution across the state.

Clean rivers, streams, and wetlands are necessary to support fish and wildlife. Clean waterways also help to deliver uncontaminated water essential for human survival. Despite their different perspectives and membership bases, every group in the coalition has reached the same conclusion — nitrate pollution must stop.

Posted in Water Quality | Comments Off on Nitrate Pollution: One Place Environmental Justice and Environmental Advocacy Meet

CSPA Fall 2023 Newsletter: Save the Date Memorial for Bill Jennings, CSPA Sues the State Water Board over Agricultural Pollution & Lead-Lined Cable in Lake Tahoe Go on Trial

The Fall 2023 Edition of the California Sportfishing Protection Alliance Newsletter is out now. Below is the introduction to the newsletter by Chris Shutes, CSPA’s  Executive Director.

From the Desk of Chris Shutes: 

It’s been a very busy year at CSPA. Our hydropower program remains a national leader.  We are in the midst of four water rights proceedings, with more on the way. Our water quality enforcement program is strong. We are increasing activities to protect groundwater quality and to protect rivers from excessive diversions for groundwater recharge.

From Mount Shasta to Fresno, and from San Francisco to Lake Tahoe, CSPA is active and effective in regulatory processes to protect fisheries, aquatic habitat, and water quality.

CSPA turned 40 in 2023. Very sadly, we lost our longtime leader Bill Jennings just before reaching our milestone birthday. Many people have asked about a memorial for Bill. We are asking you to save the date of April 7, 2024 for a Bill Jennings memorial. As part of our transition, we have closed our Stockton office, but our hearts are still there. So are 60 boxes of Bill Jennings’s paper documents that we delivered in September to the University of the Pacific, which is creating a Bill Jennings archive that will be available to the public.

Thanks to generous support from a funder, CSPA is now recruiting an Administrative Assistant and Advocate Trainee to help organize and maintain CSPA and its many programs. Additionally, Angelina Cook has joined CSPA as our Restoration Associate. She is working on the removal of dams on Battle Creek and on flows and related issues on the Scott and Shasta rivers. She is also learning the ropes of water rights protests and processes.

During our transition, we have been unable to post to the website on some of our important efforts. It has been all we could manage to do all the work! This newsletter highlights some of our recent actions. We hope to have more capacity to blog on topics of the day, and to report on more of our work in the next year, with the following actions coming up:

  • Hearings on the Bay-Delta Plan to determine flows into San Francisco Bay and in the Central Valley rivers that flow into it;
  • Water rights hearings for the massive proposed Sites Reservoir;
  • Water rights protests of the proposed tunnel to divert water under the Delta
    Comments on new Endangered Species Act protections for the Delta and much of the Central Valley;
  • Our extensive work over the past three years on legislation to enact the largest reform of the Federal Power Act since 1920;
  • Our efforts to accelerate dam removal on the Eel River and Battle Creek, and to end regulatory purgatory on Butte Creek and protect its salmon;
  • Our water quality enforcement actions large and small, including major efforts to protect Lake Tahoe.
More than ever, CSPA needs your support!
Please join CSPA or renew your membership today!
Please consider an end-of-year donation in addition to your membership!
CSPA can now handle donations of stocks!

The full CSPA newsletter can be downloaded below. Articles include: 8 Miles of Lead-Lined Cable in Lake Tahoe Go on Trial; Meet Restoration Associate Angelina Cook; CSPA Sues the State Water Board over Agricultural Pollution Backsliding; and more!

Posted in Newsletter | Comments Off on CSPA Fall 2023 Newsletter: Save the Date Memorial for Bill Jennings, CSPA Sues the State Water Board over Agricultural Pollution & Lead-Lined Cable in Lake Tahoe Go on Trial

Sites Reservoir: Fast-Tracking and Greenwashing a Huge Water Development

In the summer of 2023, Governor Newsom signed Senate Bill 149 into law. This bill gave the Governor the power to fast-track infrastructure projects deemed beneficial to the state of California’s bid to create a climate-resilient future.

On November 6th, 2023 the Governor used this law to fast-track approval for the highly controversial Sites Reservoir Project. In a statement, the Governor characterized this move as “cutting red tape.” The red tape in question is the normal scrutiny the Sites Project would be subject to under the California Environmental Quality Act (CEQA).

Governor Newsom’s decision to fast-track the Sites Project is based on his assertion that it is beneficial to the environment. The Governor’s rhetoric is in line with the Sites Project’s public relations campaign. When the drought hits, they argue, the Reservoir will release water, in part, to ensure the survival of downstream habitat and species. This is a deceptive narrative.

The reality is that there is a high demand for water in California’s agricultural sector. The dams and diversions already in place to feed that demand are the very cause of the ecological distress of the Sacramento River and the Bay-Delta estuary it flows into.

Further, proponents of Sites have released no operations plan describing how they will use the reservoir to reduce the impacts of drought on fish and wildlife. They rely instead on repeating that they “could” do helpful things with more water in storage.

Climate change and impending species extinction are a major concern for all environmentally conscious Californians. The Governor and those in charge of Sites are using this widespread concern to push through a project that will damage fish and wildlife. This tactic is called greenwashing.

Greenwashing is a common branding tactic. Used across many industries and government agencies, greenwashing is when one frames a product or project in terms that highlight its purported benefits to the environment. This assertion is made even when the product or project is primarily for different purposes.

The Governor and the Sites Project leadership have made an assertion that the project is beneficial to the river environment, despite extensive evidence disputing this claim. Armed with a greenwashed project and SB 149, the Governor is circumventing processes put in place to protect fish and wildlife from destructive projects just like the Sites Reservoir.

CEQA is a crucial process that development projects must pass through in order to help ensure that they do not degrade California’s environment. Signed into law by Governor Reagan in 1970, CEQA aims to inform the public and decision makers on the potential environmental impact of public and private developments.

Under CEQA, Sites Reservoir Project was classified as having the potential to have significant (negative) environmental impacts. Thus, the Sites Project was then required to produce an Environmental Impact Report (EIR). The EIR for the Sites Project is thirty-four chapters long.

The Final EIR for the Sites Project was released to the public on November 2, 2023. After two additional procedural steps (expected before Thanksgiving 2023), opponents of the Sites Project, such as the California Sportfishing Protection Alliance (CSPA) and its allies, will have thirty days to make a legal challenge to the EIR for the Project in court.

SB 149 limits the amount of time the court can take to make a decision on an EIR to just 270 days. SB 149 was intended to fast-track non-controversial projects. But the Sites Project is far from non-controversial.

When inappropriately applied to a complicated, controversial, and environmentally damaging project, SB 149’s 270-day timeline places a tremendous burden on attorneys to prepare and make their cases, as well as on judges to review the law and the facts and render a decision.

The Sites Project aims to build a reservoir on two small creeks in Colusa County. But it is an off-stream reservoir, meaning that only a tiny percentage of the projected 1.5 million acre-feet of water to fill the reservoir will come from those creeks. The water to fill the reservoir will be diverted from the Sacramento River into large canals, then pumped from the canals to the reservoir. Sacramento River ecosystems are already under great duress from the impoundment and overallocation of its waters.

In January 2021, a coalition of thirteen environmental nonprofits argued against the idea that the “environmental benefits of the proposed Sites Reservoir are a foregone conclusion.” In the comments they submitted to the Project’s proponents and the Bureau of Reclamation, they said, “Project benefits remain speculative, and environmental harms of Sites have yet to be properly assessed.”

The coalition said that the Project was “underestimating potential impacts associated with Sites-induced diversions on the flow-dependent Sacramento River riparian habitat.”

The coalition went on to say that the Project ignores a “scientific consensus that Sacramento River riparian habitat is ultra-sensitive to even slight modifications in the natural flow regime. Riparian dependent species along the Sacramento River have continued to decline under the extensively modified flow regime caused by Shasta Dam operations and will likely continue to decline under even minor flow modifications caused by Sites operations.”

Fast-tracking Sites Reservoir threatens to fast-track the extinction of the already depressed populations of Chinook salmon. In a protest of the water rights application for the Sites Project, CSPA and its allies point out that “the Sites Application proposes minimal flow protection on the Sacramento River for salmon and no explicit flow protection for sturgeon.”

A different coalition led by the San Francisco Baykeeper reached the same conclusion in their protest. They said that granting the Sites Project water rights to the Sacramento River “is likely to reduce the survival and abundance of winter-run Chinook Salmon, primarily because the proposed bypass flows are inadequate to protect the species.”

In the CSPA protest, the coalition of fourteen environmental non-profits and the Winnemem Wintu tribe go on to describe in detail the damage the Sites Project may do to fish and wildlife. They state that altered flow caused by Sites Reservoir will further threaten the “western yellow billed cuckoo, Swainson’s hawk, bank swallow, and the valley elderberry longhorn beetle.” These are species already listed as threatened, endangered, or species of concern.

The Governor and those in charge of the Sites Reservoir Project want you to believe they are spending 4 billion (mostly tax) dollars on a project that will help the environment. A large coalition of non-governmental organizations and tribes strongly disagree. They argue that the Sites Project will add to the dire conditions of the Sacramento River, the Delta, and the already imperiled habitats and species within them.

The truth will not be revealed by branding exercises such as the Governor’s Declaration that the Sites project is environmentally beneficial. Review by a court is one of the major protections the public has for its treasured fish and wildlife resources. The Governor’s Declaration reduces protections by making that review that much harder.

Editor’s Note: On November 17, 2023, the Sites Project Authority certified the Final EIR for the Sites Project. In response, CSPA, Friends of the River, and the Sierra Club issued a press release.

Posted in Water Quality, Water Rights | Comments Off on Sites Reservoir: Fast-Tracking and Greenwashing a Huge Water Development

Groundwater Gold Rush

The groundwater gold rush is on.  New projects to divert rivers for groundwater recharge are popping up across the state.  Most of these projects are temporary, but most also explicitly foresee long-term, permanent projects.  These recharge projects threaten to divert still more water from already-depleted rivers, even as the State Water Resources Control Board (State Water Board) finally begins the update of the Bay-Delta Plan, which starts from the premise that rivers need more water, not less.

The threat is enormous in scale.  Diversions to recharge groundwater don’t have to show use of the water for up to five years.  Because so many aquifers are already overdrafted, places in the ground to put water are almost unlimited.  The limitations on these projects are thus economic, technical, and regulatory.

There are few established rules for when rivers have enough water to allow diversions to groundwater storage.  For several years, the State Water Board has been using a 13-page “Guideline” called the “Water Availability Analysis for Streamlined Recharge Permitting” to allow temporary water rights for purposes of recharge.  That Guideline established a default called the 90/20 Rule, which it explained as follows: “The 90th Percentile/20 Percent method explicitly assumes that flows above the 90th percentile daily flow, between December 1 and March 31, are protective of aquatic ecosystem functionality if the total amount of water diverted is capped at 20 percent of the daily flow.”  The Guideline also set an alternative method that allowed diversions for recharge during the December 1 through March 31 period when “flows exceed thresholds that trigger flood control actions necessary to avoid threats to human health and safety.  These thresholds and actions need to be established in written flood management protocols adopted by a flood control agency.”

The Guideline had the benefit of at least trying to make a general evaluation of when flows were truly high enough to allow limited additional diversions.  But the Guideline’s flows were already skimpy.  They looked at the flow at the point of diversion, but not in rivers downstream.  They also did not consider the cumulative effect of diversions.  Thus, for the Bay-Delta estuary, the only flow requirement was that the Delta had to be in “Excess Conditions”: the state and federal water projects could not be releasing water from storage to meet the existing inadequate flow and water quality requirements under Water Rights Decision 1641.

The scrum is now underway to make the rules have even fewer restrictions.  The Newsom administration is leading the charge to keep the rules for diversion of surface water to groundwater as weak as possible.  This is consistent with the Newsom administration’s general view that the solution to the state’s overallocation and overappropriation of water is to capture more water.  (See also, CSPA-FOR protest, Sites Reservoir).

On March 10, 2023, Governor Newsom issued Executive Order N-4-23.  Taking the State Water Board’s Guideline a step further, Order N-4-23 suspended until 2024 the need for a water right permit, a streambed alteration permit, and environmental review under CEQA for diversions of surface water to groundwater recharge during “flood” conditions.  It weakened the definition of flood conditions to allow almost any government agency to declare such conditions, with very vague limitations.  It also allowed temporary diversions with only rudimentary fish screens.  Finally, it provided little assurance that water diverted to agricultural fields would not pollute the underlying groundwater.  Governor Newsom’s pretext for these measures was the “ongoing drought emergency,” regardless of the fact that 2023 was well on its way to becoming one of the wettest water years in recent history.

The drought pretext didn’t last long.  In July 2023, a budget trailer bill signed by the Governor made these changes permanent until 2029.  (The trailer bill did somewhat strengthen requirements for fish screens and protection of groundwater water quality).

Now, various water agencies and engineering consultants are testing how far they can weaken flow requirements for water rights to divert surface water for groundwater recharge.  The weaker the rules, the more likely water users will invest in facilities to divert more water.  A weak Bay-Delta Plan would also, of course, make more diversions more feasible and more investments more attractive.

In September 2023, South Sutter Water District tried the predictable gambit of seeking to divert all the water it could divert and recharge over and above the (soon-to-be-implemented) required minimum flows, provided the Delta is in Excess Conditions.  Accordingly, CSPA filed an Objection to South Sutter’s application on October 16, 2023.

CSPA will seek appropriate constraints on the groundwater gold rush each step of the way.  CSPA will:

  • Advocate for a strong Bay-Delta Plan that protects high flows from diversion throughout the Bay-Delta watershed.
  • Advocate for requirements that diversions of surface water to groundwater go through complete water rights permitting, including CEQA and streambed alteration permits.
  • Advocate for strong default regulations and policies to protect flows in rivers and the Delta from diversions of surface water to groundwater.
  • Oppose abusive transfers (water sales) of water diverted for recharge.
  • Advocate to recalculate individual and cumulative amounts of surface water depletion from groundwater pumping.
  • Advocate for strong protections to assure that recharge practices do not pollute groundwater.
  • Advocate that all approved diversions have fish screens that are compliant with fish agency guidelines.
  • File objections to bad projects or inadequately conditioned projects as they happen.
Posted in Chris Shutes, Water Rights | Comments Off on Groundwater Gold Rush

Good News for Fish: Clean Water Act Holds for PG&E Hydropower Projects on Yuba and Bear Rivers

The California Sportfishing Protection Alliance (CSPA) is pleased to report that the Federal Energy Regulatory Commission (FERC) issued an Order on September 5, 2023 that upholds the California State Water Board’s authority to require a “water quality certification” for new hydropower licenses for the Upper Drum-Spaulding, Lower Drum, and Deer Creek hydroelectric projects.

The Order ends a multiyear effort by PG&E to avoid regulation of these projects under Section 401 of the Clean Water Act.

Section 401 of the federal Clean Water Act grants states authority to certify that facilities receiving federal licenses or permits meet state water quality standards.  Through these certifications, states require dam owners to preserve streamflows and water temperatures necessary for fish and aquatic life, and to protect uses like fishing and boating.

FERC’s Order finds that the State Water Board did not waive its authority to issue certification for the project.  The Order states that the record lacks substantial evidence that the Board was complicit in circumventing the one-year deadline for certification.

The Order rejects PG&E’s central argument that the State Water Board caused FERC to delay issuing new licenses for the projects.  PG&E voluntarily withdrew and resubmitted its requests for certification each year from 2013 through 2017.  The State Water Board never failed to act within one year of request or certification, because PG&E itself withdrew its requests.  Beginning in 2018, the State Water Board denied certification within one year of PG&E’s requests.

The new licenses for the three projects are still pending at FERC for reasons unrelated to certification.

In April 2021, the Foothills Water Network coalition[1] filed comments with FERC in opposition to PG&E’s Petition for Waiver.  Writing on behalf of the coalition, CSPA argued:

The Commission Should Reject PG&E’s Petition for Waiver as Venue Shopping for Substantive Advantage Unrelated to Delay.

…PG&E’s issue with the water quality certification is one of substance, not of timing.  PG&E simply seeks to avoid regulation under the Clean Water Act.  As demonstrated by [PG&E’s] repeated invocation of clearly inapplicable Trump-era modifications to [Clean Water Act Section 401] …PG&E will argue against regulatory requirements regardless of how long advancing such argument prolongs the licensing process.

The September 5 Order follows the precedent set by the US Court of Appeals for the Ninth Circuit, which reversed FERC’s waiver of water quality certifications for the Yuba River, Yuba-Bear, Merced River, and Merced Falls hydroelectric projects.  CSPA was a litigant in those consolidated cases.

FERC’s Order reverses previous FERC positions on waiver of Section 401 for hydroelectric projects.  It is a milestone in the Hydropower Reform Coalition’s four-year campaign, led in substantial part  by CSPA, to protect Section 401 of the Clean Water Act.

 

[1] Foothills Water Network’s member organizations include Foothills Water Network, American Rivers, American Whitewater, California Outdoors, California Sportfishing Protection Alliance, Friends of the River, Gold Country Fly Fishers, Northern California Council   of Fly Fishers International (formerly Northern California Council Federation of Fly Fishers), Save Auburn Ravine Salmon and Steelhead, Sierra Club and its Mother Lode Chapter, South Yuba River Citizens League, and Trout Unlimited.

 

Posted in Cindy Charles, Hydroelectric (FERC), Water Quality | Comments Off on Good News for Fish: Clean Water Act Holds for PG&E Hydropower Projects on Yuba and Bear Rivers

CSPA, Friends of the River, and Allies Protest Water Rights for Proposed Sites Reservoir

The California Sportfishing Protection Alliance (CSPA) and Friends of the River (FOR) led a coalition of environmental groups and the Winnemem Wintu Tribe in a protest of the water right application for the proposed Sites Reservoir.  CSPA filed the protest with the State Water Resources Control Board on August 31, 2023.

In addition to CSPA, FOR, and the Winnemem Wintu Tribe, joining the protest were AquAlliance, California Water Impact Network, CalWild, Fly Fishers of Davis, Friends of the Swainson’s Hawk, Northern California Council of Fly Fishers International, Restore the Delta, Save California Salmon, Sierra Club California, and Water Climate Trust.

If constructed, Sites Reservoir would have a capacity of 1.5 million acre-feet, making it the largest reservoir constructed in California since the 1970s.  It would divert water from the Sacramento River to what is presently a large valley west of the river in Colusa County.

CSPA’s Executive Director Chris Shutes described the Sites Project in a press release as follows:

Building new reservoirs will never solve the problem of giving away too much water. Sites would join a system of reservoirs whose drains are too big for their spigots.  The supposed environmental benefits rely on promises of responsible management by the people who give away too much water in the first place.  The pay-to-play model is inequitable and unjust.  Sites Reservoir is a bad deal for California: for its fish and wildlife, for its rivers, for its people.

The introduction to the protest is reproduced below.

The Sites Reservoir project is founded on the dual deception that a massive new diversion from the Bay-Delta watershed will improve water supply reliability and improve environmental protection.  It is doubly wrong.

Fish and rivers throughout the Central Valley are hemorrhaging.  The state and federal water projects,[1] their agencies,[2] and their contractors have led these fish to the brink of extinction and these rivers to degradation and loss of basic function.  Now, changing their hats to appear as partisans of local solutions in the Sacramento Valley, these agencies and their contractors ask for more water and more public money, and propose to control 90% of the water in a shiny new project, but with no new responsibilities to protect the public resources they have so masterfully decimated. 

The Sites project lives in the faded dream of the mid-twentieth century, whose central tenet was that when water supply is short, the solution is to pour more concrete and divert more water.  It is no wonder that the Sites water rights application claims it is true to, and seeks to implement, a project that was first put on the books in 1977.  That 1977 “state filed application” for water, in turn, is grounded in a view of water development that was passed into law in 1927.

The Sites project is deeply inequitable.  It harms all those who rely on rivers and fish for their livelihoods and sustenance, as well as for their enjoyment.  This includes tribal communities whose connection to rivers, fish, and associated environments, are, in addition, cultural and religious.  The Sites project will create some of the most expensive water in the state, affordable to only a few.  It will thus tend to push costs for water higher generally, making water less accessible to disadvantaged communities.  

Water is the lifeblood of California’s rivers and fisheries.  The Sites project is consistent with, and founded on, a coordinated plan for the state’s water that systemically bleeds rivers, fisheries, and communities dry.  There will be no water supply reliability in the Central Valley until demand for water is brought into line with what Central Valley hydrology can reliably provide.  There will be no humane recognition of tribal sovereignty or the public trust until this paradigm shifts.

The proponents of Sites Reservoir won’t produce a plan for operating their 1.5 million acre-foot reservoir until after it is approved.  But they ask the people of California to trust them. They tell us it will give them the resources to protect fish this time around. Throughout California’s history, reservoir backers have promised the world every time a new dam is built, and they have always failed to deliver.  The overall result of the 1400 dams in California has been salmon and other fish species declining towards extinction, the loss of over 90% of California’s wetlands, degraded water quality, and expanding toxic algae blooms in the Bay and Delta.  Sites would not be the first dam to over-promise and under-deliver.

Past practice is the best indicator of future behavior.  The state and federal projects, and their regulators at the State Water Board and the fish agencies, have the ability, the authority, and indeed the obligation to manage limited water resources to protect fish and rivers today.  They have done the opposite.  They systematically give away too much water.  During dry year sequences, the projects routinely come crying to the regulators for “temporary” changes to already inadequate fisheries protections, and the regulators routinely oblige, without requiring accountability for how the latest predictable “emergency” came about.

The Sites project promises so many benefits, but what solid benefits are there really?  Water for wildlife refuges that the state and federal projects should already be delivering to make up for the destruction of enormous amounts of Central Valley habitat.  A pittance of water for Delta smelt in an experimental project whose effectiveness is based on a prayer. 

And then there is process.  So much process.  The proponents of Sites, to the degree they are not already participants in the management committees that have run fish into the grave, will join the resource agencies and the water users already in the room, and talk, talk, talk. 

The history of the state and federal water projects and their contractors is that they fight like crazy to make constraints on water deliveries as weak as possible.  Once established, the state and federal projects and their contractors painstakingly game those constraints to maximize long-term water deliveries.  The idea that voluntary consultation without strong regulation is enough to restore the state’s public trust fishery and river resources utterly ignores the dismal outcome of past consultation with inadequate rules and enforcement.

The Sites Application supports itself with talking points on how the state will run out of water under conditions of climate change.  It is a new tambourine banging out the same old tune.  This protest is founded on the principle that if the State of California does not set limits on water use, and instead allows the state and federal projects to keep taking, taking, taking, the state is going to run out of fish and living rivers.

[1] State Water Project (SWP) and Central Valley Project (CVP).

[2] California Department of Water Resources (DWR) and Bureau of Reclamation (Reclamation).

 

Posted in Chris Shutes, Water Rights | Comments Off on CSPA, Friends of the River, and Allies Protest Water Rights for Proposed Sites Reservoir

The View from under the Bus: Newsom Administration and Fish Agencies Sell Out Yuba River Flow for Fish Passage

With nary a mention that the center of the prospective deal is no flow increases on the Yuba River, two fish agencies, a water agency, and the Newsom Administration used glowing words to announce on May 16, 2023 “a restoration plan” for the Yuba River.

The rollout at a press conference[1] featured the Director of the California Department of Fish and Wildlife (CDFW), the California Assistant Regional Administrator for the National Marine Fisheries Service (NMFS), the General Manager of Yuba Water Agency (YWA), the California Resources Secretary, and Governor Newsom himself.

Later in the day came the price sticker for fish.  The “non-binding” “Term Sheet” that summarizes the plan negotiated solely by CDFW, NMFS, and YWA announced among its “Guiding Principles”:

“Measures will not require changes to the 2008 Yuba Accord instream flow requirements as described in the Final Environmental Impact Statement (June 2019) for the YRDP, except as otherwise agreed to by YWA in the Settlement Agreement.”

The Final Environmental Impact Statement refers to the relicensing by the Federal Energy Regulatory Commission (FERC) of YWA’s Yuba River Development Hydroelectric Project.  In that regulatory process, CDFW staff joined staff from non-governmental organizations (NGOs) and the US Fish and Wildlife Service (USFWS) in advocating for substantially more aggressive flow requirements in most years.  On May 16, 2023, the managers of CDFW and NMFS announced their deal next to the river whose flow needs they just sold out.

During the press conference, Resources Secretary Wade Crowfoot set a new standard for greenwashing in discussing the Administration’s efforts to “restore flows in our rivers” during a press conference that announced a deal whose cornerstone was not increasing flow requirements in the Yuba River.  He followed it up by mentioning several environmental and fishing groups that had nothing to do with the Yuba deal.

Speaking in a broader context, Governor Newsom explained his approach “doesn’t mean we’re rolling over people.”  Well here’s a newsflash from under the bus.  His agencies cut a backroom deal without so much as informing other Yuba advocates, including other federal resource agencies and water and power purveyors as well as non-governmental organizations (NGOs), until after the deal was done.  The deal stands directly in opposition to 10 years of flow advocacy by the Foothills Water Network coalition of NGOs, including California Sportfishing Protection Alliance (CSPA), as well as by CDFW and USFWS staff.

This “DAD” approach (decide, announce, and defend) has become standard operating procedure for the Newsom Administration’s water initiatives.  His “state team” has deployed the same tactic in ginning up “Voluntary Agreements” that decide how little water they can call “increased flow” with a straight face.  For the lower Yuba River, the latest proposed Voluntary Agreement (separate from the deal announced May 16) would require YWA to release an additional 7000 acre-feet a year (above the flows required by FERC), in a watershed whose average annual runoff is 2.4 million acre-feet.  That’s a whopping increase of three tenths of one percent.  Other water agencies will pay YWA to release another 43,000 acre-feet in most years.  Well, it’s an increase.  Like the “tall” coffee at Starbucks that’s the smallest cup in the house, it’s all about branding.

Just to make sure all bases are covered, the Term Sheet also says:

“The Parties intend to negotiate a Settlement Agreement that would … provide the SWRCB [State Water Resources Control Board] with an agreed-upon set of conditions for consideration in issuance of any necessary Section 401 water quality certification in the new FERC license proceeding for the YRDP.”

On May 15, 2023, the California Department of Justice received word from the US Supreme Court that it, along with CSPA, Friends of the River, South Yuba River Citizens League, and the Sierra Club, had successfully defended – against an appeal by Yuba Water Agency, no less – the State Water Board’s authority to issue a water quality certification at all.  That means the State can order additional flows to protect fish.  No matter.  One day after the Board and its legal representatives concluded three years of pleadings and litigation in defense of its authority, CDFW’s Director Chuck Bonham announced, alongside the Governor, that CDFW had agreed to a deal.  Part of that deal is that CDFW will recommend that the Board not use its authority to order additional flows.

That would be the bus’s back set of wheels.  Will the State Water Board finally decide that it doesn’t like the view from under the bus either?

Fish Passage Promises and Omissions

The prospective ‘gets’ in the Yuba surrender are improved, volitional fish passage past Daguerre Point Dam, located at River Mile 11.4 on the lower Yuba River, and a “Reintroduction Plan” with some as yet undefined level of support for a pilot reintroduction, and eventually a long-term reintroduction, of spring-run Chinook salmon to the North Yuba River.

Daguerre Point Dam      

Fish passage at Daguerre Point Dam has problems.

The two fish ladders on the dam have variably passable hydraulics depending on flow and changes in the river channel.  The ladders are subject to clogging by sediment, wood, and other debris.  Salmon often choose to hold downstream of the ladders for days or weeks rather than pass up the ladders.  The ladders do not allow sturgeon to pass upstream.

The fish screen on the Hallwood-Cordua Diversion that begins on the north side of the dam directs juvenile salmon and steelhead migrating downstream into pipes whose outlets below the dam create feeding halls for striped bass.  The Brophy or Southside Diversion on the south side of the dam has no fish screen; a series of berms and ponds does a poor job of keeping juvenile salmon and steelhead out of the canals that the diversion feeds.

Downstream fish passage over the dam is a crapshoot.  If fish survive the drop, they must still run a gauntlet of stripers in the pool below.

The Army Corps of Engineers owns Daguerre Point Dam.  Its maintenance record is poor.  The Corps has been dragging its heels about improving or replacing the fish passage facilities at the dam for decades.  Improvements to the dam itself would require Congressional approval and appropriations.  Yet neither the Corps nor Congress has ever developed an active champion for improving the structure of even for improving the maintenance of the dam.

Fixing these problems would be a good thing.  However, the press conference statement by Chuck Bonham that “even in the best of times, it’s a very difficult barrier for salmon and steelhead moving upstream”), and NMFS’s Cathy Marcinkevage’s characterization of passage for salmon as “incredibly challenging,” overstate the degree and extent of the problem facing salmon and steelhead moving upstream.  Notwithstanding Ms. Marcinkevage’s press conference assessment that passage improvements at Daguerre “will open up up to 12 miles of habitat for sturgeon, steelhead, and spring-run Chinook salmon,” almost all the salmon and steelhead that spawn in the Yuba River already spawn in the reach upstream of Daguerre Point Dam.

Sturgeon are a different matter, but there is a huge wrinkle that no one is talking about.  The jumps on the Daguerre fish ladders, which block passage for sturgeon, also block passage for striped bass, many of which presently collect in the pool at Daguerre’s foot.  There is also a sizeable run of American shad on the lower Yuba River.  Compared to striped bass, shad are equally if not more efficient in eating juvenile salmon, steelhead, and rainbow trout.  The Daguerre fish ladders also block the upstream passage of shad.

Today, Daguerre Point Dam serves as a separation weir, keeping stripers and shad out of the upper 12 miles of the lower Yuba River.  This separation gives juvenile salmon, including ESA-listed spring-run Chinook, a chance to rear and grow without threat of being eaten by stripers until the salmon move downstream of Daguerre.  For juvenile steelhead, which live at least one year in fresh water before migrating to the ocean, separation also provides over-summering habitat that is free of the presence of stripers and shad.  And perhaps most important to anglers, separation provides many miles of outstanding fishing for (mostly) resident rainbow trout upstream of Daguerre Point Dam.  Combined with the lower Yuba River’s cold water, separation by Daguerre Point Dam has made the upper reach of the lower Yuba River a destination fishery for steelhead and trout anglers from all over the state.

For every sturgeon that a new completely volitional fishway past Daguerre Point Dam allows to pass, it is reasonable to assume that there will be hundreds or likely thousands of stripers and shad that also pass.  Absent mitigation, the lower Yuba River may well become like the lower American River in Sacramento, where the summer fisheries are shad and stripers, and where a resident trout fishery is virtually non-existent.

CDFW, NMFS, and YWA’s managers don’t seem to have considered that there might be a problem with a “completely volitional” passage solution at Daguerre Point Dam.  There may be a solution, such as a weir, that could partly or fully mitigate the problem.  Such a solution may come out in the necessary environmental review process that the Governor generally disparaged at the press conference; he doesn’t seem to consider that CEQA can improve as well as shut down projects.  He also doesn’t seem to consider that applying special rules for the application of CEQA to “environmental” or “beneficial” projects assumes agreement on net benefits, and that his administration’s initiative or blessing does not assure the absence of significant environmental impacts.

Reintroduction of salmon to the North Yuba River 

Another consequence of a few managers going off in a room and deciding what’s best for a river, and then announcing to the world why everyone is going to love it, is that it sours or perhaps ends working relationships with the people and entities who thought they were collaborating as equals but who turned out to be less equal than others.

At the instigation of NMFS and CDFW, a number of entities who had previously participated in the “Yuba Salmon Partnership” began discussions in 2020 aimed at establishing a pilot reintroduction of spring-run Chinook salmon to the upper Yuba River watershed.  In 2021, these entities did outreach and expanded their numbers.  They chose a name, the Yuba Reintroduction Working Group.  They established a steering committee consisting of representatives of the USDA Forest Service, US Fish and Wildlife Service, Placer County Water Agency, Nevada Irrigation District, PG&E, American Rivers, South Yuba River Citizens League, and CSPA, in addition to NMFS, CDFW and YWA.

In November 2021, the Steering Committee adopted a charter, whose key action statement said:

“The focus of the Yuba Reintroduction Working Group (YRWG) will be to contribute to the recovery of spring-run Chinook salmon through planning and evaluating their reintroduction into historical habitat in the upper Yuba River watershed, defined as all forks and tributaries of the Yuba River upstream of Englebright Dam.”

The decision to use the term “upper Yuba River watershed” and to not predetermine any location for reintroduction was a deliberate choice tied to engaging as many key stakeholders as possible.  Some had concerns about introducing salmon in their (figurative) backyards, i.e., areas where on some level they have responsibilities.  Some had concerns about not introducing salmon in their figurative backyards.  Some entities assumed that volitional passage was not feasible; others thought that a pilot program could inform habitat suitability in diverse places, which might keep more options (including volitional ones) open. It was, in short, a carefully worded delicate balance whose key was inclusion.

Yuba Water Agency, with the approval of NMFS and CDFW, trampled that balance with the May 16 release of the “Draft Framework North Yuba River Spring-Run Chinook Salmon Reintroduction Plan.”  It’s there, fittingly, in black and blue letters: North Yuba it is.  Neither the term sheet nor the press conference provided stated dollar amounts for the reintroduction plan or how much YWA will contribute to it.  But the principle is clear: the funding (and the work) are directed at the venue of choice.

This is the corporate model of collaboration.  Collaborators get to collaborate in implementing the details of the program the senior managers have chosen.  There is no question who’s in control.  There is little chance for an alternative approach, since priorities for implementation and funding will now be directed within the four corners of the official program.

By Way of Conclusion

As CSPA told the Los Angeles Times, “They’re blowing a lot of sunshine on a deal that in my opinion gives up far too much in terms of flow in the lower Yuba River.”  CDFW and NMFS surrendered on a flow-for-passage deal that Yuba Water Agency has wanted and that CSPA has vigorously opposed for over a decade.

In addition to the collateral damage to relationships, the top-down decision making has landed on a plan for fish passage at Daguerre Point Dam that if not modified has a good chance of destroying one of the best recreational fisheries in the state.

CDFW Director Chuck Bonham stated at the press conference, “[W]e can either keep these fights alive, which California is infamous for on water, or we can sit down and actually do something.”  The top-down decision-making, on the contrary, may in the context of upstream Yuba River fish passage rekindle old water fights where détente or better had previously been reached.  And the imperative to “do something” does not and can never mean giving up on the flows that salmon and other fish need.

[1] https://twitter.com/CAgovernor/status/1658529741778079746?cxt=HHwWhMDSwemApIQuAAAA

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Another CSPA Legal Victory: US Supreme Court Denies Appeal, Affirming State Regulation of Merced and Yuba Rivers

The United States Supreme Court has declined to hear an appeal regarding the California State Water Resources Control Board’s authority to set mandatory conditions in the new operating licenses for four hydroelectric projects.  The appeal was filed jointly by the Merced Irrigation District (Merced ID), Yuba County Water Agency (YCWA) and the Nevada Irrigation District (NID) in February 2023.

The denial in the Supreme Court’s May 15, 2023 “Order List”  means that the State Water Board will set conditions for Merced ID’s Merced River Project and Merced Falls Hydroelectric Project on the lower Merced River; YCWA’s Yuba River Development Project on the lower Yuba, North Yuba, and Middle Yuba rivers; and NID’s Yuba-Bear Hydroelectric Project on the Middle Yuba, South Yuba, and Bear rivers.

The water agency and irrigation districts sought to overturn an August 2022 ruling by the U.S. Court of Appeals for the Ninth Circuit.  The Ninth Circuit Court overruled and vacated orders issued by the Federal Energy Regulatory Commission (FERC) in which FERC held that the State Water Board had “waived” its authority under Section 401 of the Clean Water Act to issue a “water quality certification” for each of the projects.

As part of the licensing process, Section 401 of the Clean Water Act requires license applicants to request that the state certify that the new licenses will protect water quality as required by state law.  The Clean Water Act gives states a year to “act” on certification.  In these cases, the applicants withdrew their requests for certification before one year expired.  FERC found that the State Water Board was complicit in delay by predicting and accepting these withdrawals.  After consolidating the cases into one proceeding, a panel of judges from the Ninth Circuit ruled there was no “substantial evidence” that the Board caused delay in these cases.

The California Sportfishing Protection Alliance (CSPA), South Yuba River Citizens League, Friends of the River, and the Sierra Club and its Mother Lode and Tehipite chapters were the environmental litigants in this case.  Representing them were Julie Gantenbein of Water Power Law Group and Andrew Hawley of Western Environmental Law Center; Scott L. Nelson of the public interest law firm Public Citizen joined in drafting and filing a brief opposing review by the Supreme Court.  Attorneys for environmental litigants coordinated their case with the California Department of Justice, who filed a brief in opposition on behalf of the State Water Board.

As reported by CSPA in April 2023, the Supreme Court also declined to hear a similar appeal regarding California’s authority to add mandatory conditions in the new licenses for two hydroelectric projects on the Tuolumne River.  That appeal, filed by Turlock Irrigation District and Modesto Irrigation District, involved a somewhat different fact set but the same type of effort to create and slip through a loophole in the state’s authority to regulate under the Clean Water Act.

The Supreme Court’s denial ends one chapter in the hydropower industry’s attack on Section 401 of the Clean Water Act.  The rejection by two federal courts of industry’s faulty and time-consuming legal and procedural schemes helps to restore process discipline to the hydropower licensing process.  Regrettably, the water quality certifications for these projects on the Merced River, Yuba River, and Bear River, as well as the projects on the Tuolumne River, are also under legal challenge by their licensees in state court.

Start to finish, CSPA spent over three years in defending Section 401 of the Clean Water Act in these cases.  It began by taking the lead in gathering relevant facts and establishing lines of argument against each licensee’s request for FERC to find waiver of state authority.  CSPA was well-placed for this task by virtue of 12 years of prior work on the Merced and Yuba-Bear relicensings and 9 years of prior work on the Yuba River Development relicensing.  Effectiveness in this work takes tenacity, memory, and skill.

CSPA and allied organizations will continue to defend Section 401 of Clean Water Act, both by upholding state authority and insisting on its legally defensible application.

Posted in Cindy Charles, Hydroelectric (FERC), Water Quality | Comments Off on Another CSPA Legal Victory: US Supreme Court Denies Appeal, Affirming State Regulation of Merced and Yuba Rivers

Chris Shutes – Recipient of 2023 Mark Dubois Award from Friends of the River

Chris Shutes, Executive Director of the California Sportfishing Protection Alliance, was a recipient of the 2023 Mark Dubois Award at the California River Awards held on April 21, 2023 at the City Club in San Francisco.  Friends of the River holds this annual event to honor an extraordinary person or group of persons whose contributions to restoring our rivers recall the courage, spirit, and impact of Mark Dubois, legendary activist and Director Emeritus of Friends of the River.

In bestowing this award, Friends of the River recognized Chris as an outstanding leader in hydroelectric dam relicensing and in California water rights proceedings.  Chris is one of the most experienced and effective advocates in the complex realm of hydropower relicensings.  He has worked on numerous federal dam relicensings in California, which can take over a decade to complete.  Chris was recognized for his deep knowledge of the regulatory and legal requirements as well as for his technical understanding of hydrologic and biological frameworks.  Through his work on water rights at the California State Water Board, Chris has successfully kept more water in our rivers for the fish and wildlife we love.  Chris’ acceptance remarks can be found here.

Friends of the River also recognized the leadership and accomplishments of Bill Jennings, CSPA’s former executive director who passed away last December.  Bill was legendary activist on behalf of clean water and fish.  He fought to uphold the Clean Water Act and was groundbreaking in its use to fight pollution and protect rivers and the Bay-Delta estuary.

All of us at CSPA congratulate Chris Shutes as well as the other recipients of the 2023 Mark DuBois Award.  Those recipients were long-time river and wilderness advocate Steve Evans and (in Memoriam) founder Jim Eaton of the California Wilderness Coalition (“CalWild”), staff attorney Bob Wright of Sierra Club California, and (in Memoriam) Jonas Minton, who had a long career as a water policy expert and environmentalist, most notably with the Planning and Conservation League.

 

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CSPA Legal Victory: Supreme Court Denies Appeal of State Regulation of Tuolumne River

The United States Supreme Court will not hear an appeal regarding California’s authority to add mandatory conditions in the new licenses for two hydroelectric projects on the Tuolumne River.  The appeal was filed by Turlock Irrigation District and Modesto Irrigation District (Districts), owners of the Don Pedro and La Grange projects.

The Districts sought to overturn a June 2022 ruling by the D.C. Circuit of the U.S. Court of Appeals.  That ruling found that the California State Water Resources Control Board had not “waived” its opportunity under Section 401 of the Clean Water Act to issue a “water quality certification” for the two projects.  The Districts had alleged that the Board’s denials of certification were part of a “scheme” to delay action.  A panel of D.C. Circuit judges found that the State Board had “acted” by denying the Districts certification.

The Supreme Court’s denial without comment ends the two-and-half-year federal battle in the Districts’ war on state regulation.  As previously reported,  the California Sportfishing Protection Alliance and allies Friends of the River, American Whitewater, Sierra Club, and Tuolumne River Trust opposed the Districts from the start.  CSPA and allies, and their attorneys:

  • Filed two set of comments in opposition to the Districts’ pleadings that sought a finding of waiver by the Federal Energy Regulatory Commission (FERC);
  • Intervened in the Districts’ first legal appeal to the D.C. Circuit; and
  • Filed briefs in opposition to the Districts before the D.C. Circuit.

On April 10, 2023, attorneys for CSPA and allies filed a brief in opposition to the Districts’ appeal to the Supreme Court.

Both FERC and the State Water Board also opposed the Districts’ positions throughout these regulatory and legal proceedings.

Water Power Law Group and the Western Environmental Law Center represented CSPA, Friends of the River, American Whitewater, and the Sierra Club in this matter.  They worked with the Morrison Foerster law firm, which represented the Tuolumne River Trust.

CSPA’s 30-year advocacy on behalf of salmon and steelhead in the Tuolumne River now shifts to two other fronts.  The first front is a series of challenges under state law to the water quality certification for the Don Pedro and La Grange hydroelectric projects.  The second front is the proposed Tuolumne River “Voluntary Agreement,” which would drastically reduce flow requirements adopted by the State Water Board in 2018 amendments to the Bay-Delta Plan.

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Water for Fish Gulped by Delta Pumps; CSPA Objects to Circular Excuses

The State Water Resources Control Board has approved a petition that diverts water required to flow into San Francisco Bay to the fish-killing Delta pumps of the State Water Project (SWP) and Central Valley Project (CVP). The higher “Delta outflow” required by the existing Bay-Delta Plan in high-runoff winter and spring periods is designed to move juvenile salmon to the ocean and to keep smelt in the food-rich waters of Suisun Bay.

On February 23, 2023, CSPA and allies filed a Protest and Objection to the “Temporary Urgency Change Petition” (TUCP) filed by the Department of Water Resources and the Bureau of Reclamation. The TUCP requested that water for fish protection and water quality instead be exported south of the Delta, mostly to San Joaquin Valley agriculture.  By the time CSPA et al. submitted its Objection 10 days after the TUCP was filed, the State Water Board had already issued an Order approving the TUCP.

The State Water Board’s Order is particularly perfunctory in approving the TUCP.  The Order admits that the Board never considered denying the petition.  (“Disapproving the TUCP to avoid the potential impacts of the proposed change on fish and wildlife is not considered to be in the public interest for the reasons given in sections 6.2, 6.4, and 6.6 of this Order.”)  Though there is a good snowpack, and many reservoir levels have increased substantially, the Order reasons that it might not rain again this year.  It concludes that all risk and “uncertainty” must be borne by fish and other things that depend on flow. Both the TUCP and the Order catalogue how fish have done really badly in the past three drought years.  However, no level of past harm to fish warrants giving fish the water they are supposed to get.

The Order relies on a one-word characterization of the benefits of a month of high flows into San Francisco Bay. The word, contained in a letter to the Board from the California Department of Fish and Wildlife, is “incremental.”  It’s not true.  The success of juvenile salmon migrating into the Delta increases enormously during high runoff events such as those in December 2022 and January 2023.  That means that further high flows have a chance to benefit large numbers of fish. It is in big water years, or at least big water months, that Delta fish have some chance to recover.

Here is the new reality for standards to protect fish: those standards can be ignored by “real-time” decisions and orders at any time. After all, the weather might turn dry.

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Water Quality, Fish and Wildlife Protection: It’s All Voluntary

The future is now.

Governor Newsom’s February 13, 2023 Executive Order ordering the State Water Board  to consider modifying flow and storage requirements for the State Water Project (SWP) and the Central Valley Project (CVP) is his blueprint for the Bay-Delta estuary and every river that feeds it.  When requirements to protect water quality, fish, and wildlife are inconvenient, water managers can ignore them.

It’s all voluntary.

For ten-odd years, California’s water managers have promised “Voluntary Agreements” to replace the Bay-Delta Water Quality Control Plan.  They could never figure out the details of what to propose.

Now they can just stop, and save us all the agony of listening to them pretend that it has to do with science.  They can simply ask the Governor in real time to do whatever they think is best to fill the bottomless pit of their promises to deliver more water than exists.

It’s all voluntary.

The promised Voluntary Agreements are supposed to have Water Rights Decision 1641 as their foundation.  Those are the requirements the Governor’s Order just asked the State Water Board to “consider modifying” in what will at worst be a water year with average runoff.  When the foundation can go away at any time, there isn’t really a foundation.

It’s all voluntary.

The Voluntary Agreements are supposed to be founded on “real-time operations” and “adaptive management,” as is the proposed Delta tunnel.  For decades, water managers have used “real-time operations” and “adaptive management,” to systematically game any rules that reserve water for fish and wildlife.  In the hands of water managers, and the craven fish agency managers who have accepted the concept that the minimal use of water for fish and wildlife is their objective, these concepts have no credibility.

Now there is a new game: ask the Governor to suspend the rules.  The bottom line about “real-time operations” and “adaptive management” is that the Governor can change rules and standards at any time.  Can’t get more real-time or adaptive than that.

When push comes to shove, it’s all voluntary.

Here’s a fun game.  One of these reasons from the Governor’s Order for “modifying requirements” on the SWP and CVP is not like the others:

(i) conserve water upstream later in the year in order to protect cold water pools for salmon and steelhead,

(ii) enhance instream conditions for fish and wildlife,

(iii) improve water quality,

(iv) protect carry-over storage,

(v) ensure minimum health and safety water supplies, or

(vi) provide opportunities to maintain or to expand water supplies north and south of the Delta.

Applause if you answered (vi).  Embezzling water allocated to water quality and to fish and wildlife, and giving it to farms and cities, is the only objective the Governor’s Order will achieve.  Numbers (i)-(iv) have no basis in fact.  They are greenwashing.  Robbing Delta outflow or other flows won’t achieve any of those things.  Any benefit to water quality and fish from storing the Delta’s water in reservoirs is completely at the mercy of water managers.

It’s all voluntary.

As for (v), there is no threat to health and safety water supplies in 2023 from limitations on the SWP and CVP.  It is fear-mongering.

The Governor frames the problem thus: California doesn’t capture enough water.  It is worth recalling what another governor said about money: California doesn’t have a revenue problem.  It has a spending problem.  Same is doubly true for water.  California has promised far more water than it can deliver.  Only it’s much easier and much quicker to generate revenue than it is to increase water supply for farms and cities.

Climate change is not the cause of overallocation of California’s water.  Climate change just makes the decades-old problem more obvious.

The more water California’s water managers capture, the bigger the water deficit becomes.  Further capture of water irrigates the illusion that water managers are seeking a reachable goal called “water supply reliability.”  But collectively, they are promoting a system of water deliveries whose demands will never be met.  As the demands of those near the front of the line are met more frequently in any given year, it just whets the appetite of those who miss out.

The “ongoing drought emergency” cited by Governor Newsom is simply this:  a State government that sets no limits on water use sets up protections for water quality and for fish and wildlife as the obstacles to “water supply reliability.”  That’s because some real wet water is (miraculously) actually dedicated to water quality and fish and wildlife protection.  Of course, there isn’t enough water allocated to rivers, estuaries, and bays to steal in order to achieve “water supply reliability.”  The goal as framed is unreachable.

When it’s actually done science, the State has recognized that rivers and fish and wildlife need more water, not less.  The solution for urban and agricultural water supply is the same as water supply dedicated to protecting water quality and fish and wildlife.  It is a water budgeting system that sets enforceable regulatory limits on water deliveries.  Those limits must be based on the limits of hydrology and responsible water management, and grounded in the principles of reasonable use and protection of the public trust.  It cannot be a system based on the annual discretion of water managers who decide in each case what part of the public’s water they will oh so generously give up.  Even less can it be a permanent state of emergency that makes the Governor of California the watermaster of the Central Valley.

Neither the State’s water supply system nor its water quality and fish and wildlife can survive a government in which:

It’s all voluntary.

p.s. Is this too harsh about water agency or resource agency managers?  They have a great opportunity to prove it.  Let them stand up now to show that they are wrongfully lumped in.  Who will be the first water agency or resource agency manager who publicly and vocally objects to the false framing by the Governor?  Who will be the first to oppose the February 13 Temporary Urgency Change Petition for the SWP and CVP, that would retroactively eliminate a major flow requirement into San Francisco Bay in February and March of 2023, and that hit the street on the same day as the Governor’s Order?  Will anyone at least object that changing the rules will kill the salmon from their own rivers and hatcheries?

Posted in Chris Shutes, Enforcement, State Board Bay-Delta Standards | Comments Off on Water Quality, Fish and Wildlife Protection: It’s All Voluntary