CSPA in the News
Lawsuit Asserts Water Boards Failed to Protect Clean Water from Agricultural PollutionAug 8, 2017 Read Online
California DFW issues permit to kill endangered salmon & smelt in Delta TunnelsAug 2, 2017 Read Online
- CSPA Joins in Pattern & Practice Lawsuit: State & Regional Water Boards Fail to Protect Water from Agricultural Pollution
- Opposing Senate Bill AB 623 – Needs Further Refinement to Ensure Prevention of Further Water Pollution
- Opposing AB 313 – Negatively Effects State Water Control Board Water Rights Hearings
- CSPA comments on scoping for relicensing the Potter Valley Hydroelectric Project
- PG&E Completes Recreation Access Site on NF Feather River
- August 2017 (1)
- July 2017 (2)
- June 2017 (4)
- May 2017 (1)
- April 2017 (6)
- March 2017 (1)
- February 2017 (2)
- January 2017 (2)
- December 2016 (2)
- November 2016 (1)
- October 2016 (3)
- September 2016 (1)
- August 2016 (1)
- July 2016 (1)
- June 2016 (2)
- April 2016 (8)
- March 2016 (1)
- January 2016 (2)
- November 2015 (5)
- October 2015 (4)
- September 2015 (3)
- August 2015 (6)
- July 2015 (1)
- June 2015 (5)
- May 2015 (4)
- April 2015 (3)
- March 2015 (3)
- February 2015 (4)
- January 2015 (2)
- November 2014 (2)
- October 2014 (3)
- September 2014 (15)
- August 2014 (14)
- July 2014 (10)
- June 2014 (8)
- May 2014 (13)
- April 2014 (15)
- March 2014 (14)
- February 2014 (12)
- January 2014 (13)
- December 2013 (9)
- November 2013 (7)
- October 2013 (9)
- September 2013 (10)
- August 2013 (9)
- July 2013 (4)
- June 2013 (5)
- May 2013 (5)
- April 2013 (3)
- March 2013 (3)
- January 2013 (7)
- December 2012 (3)
- September 2012 (2)
- August 2012 (3)
- June 2012 (1)
- May 2012 (2)
- April 2012 (1)
- March 2012 (1)
- February 2012 (6)
- January 2012 (2)
- December 2011 (2)
- November 2011 (1)
- October 2011 (4)
- September 2011 (10)
- August 2011 (12)
- July 2011 (13)
- June 2011 (9)
- May 2011 (16)
- April 2011 (13)
- March 2011 (10)
- February 2011 (12)
- January 2011 (4)
- December 2010 (20)
- November 2010 (7)
- October 2010 (11)
- September 2010 (18)
- August 2010 (2)
- Historic Archive (Prior September 2010)
CSPA Joins in Pattern & Practice Lawsuit: State & Regional Water Boards Fail to Protect Water from Agricultural Pollution
CSPA, in coalition with other environmental and trade organizations, filed a lawsuit against the State Water Resources Control Board and the Central Coast Regional Water Quality Control Board asserting the Boards have failed to protect clean water from agricultural pollution. The lawsuit filed in early August, claims that the boards have repeatedly failed to enforce clean water rules designed to limit pollution from excess fertilizer, pesticides and manure. This unchecked agricultural pollution is washing into streams and ultimately out to sea, and is seriously contaminating the state’s groundwater.
This dereliction of duty by the Boards jeopardizes the safety of public drinking water, as well as the health of rivers, coastal waters and fisheries.
Agricultural pollution is the primary culprit for unsafe water that burdens both urban and rural communities, sickening people and driving up water treatment costs. Additionally, this pollution threatens fishing, tourism, and recreation jobs and businesses.
The coalition of conservation, environmental justice and industry groups believe “[T]he State Board has engaged and continues to engage in a pattern and practice of systematically failing to comply with its legal obligations under state law…”
In 2013, the Central Coast Regional Water Quality Control Board adopted its first “Conditional Waiver of Waste Discharge Requirements for Irrigated Agriculture” (Ag Order), but acknowledged it was ineffective since it didn’t include conditions consistent with typical orders to control waste discharges from industries or activities affecting water quality in a similar level of severity. A coalition of groups, including CSPA, challenged the 2013 Ag Order in court and won. The judge ordered the State and Regional Boards to create a new Ag Order, consistent with the law. The State and numerous agricultural groups appealed the ruling which is currently awaiting a court date.
Knowing that the 2013 Ag Order was legally deficient in many ways, the Central Coast Regional Board renewed a nearly identical Ag Order in March 2017. A coalition of organizations petitioned the regional decision to the State Board which declined to review the petition. As a result, the coalition proceeded with the current pattern and practice lawsuit. The State Board’s failure to review and correct the deficiencies in the 2017 Ag Order is illustrative of an ongoing pattern and practice whereby the State Board, through action or inaction, has declined and continues to decline to exercise its statutory oversight responsibility to ensure that agricultural discharges throughout the State comply with applicable laws.
The organizations taking action with CSPA include The Otter Project and Monterey Coastkeeper, Environmental Justice Coalition for Water, Santa Barbara Channel Keeper, Pacific Coast Federation of Fishing Associations, Orange County Coastkeeper, Inland Empire Waterkeeper, Institute for Fisheries Research and California Coastkeeper Alliance.
The Press Release is available here and the compliant can be viewed here.
Opposing Senate Bill AB 623 – Needs Further Refinement to Ensure Prevention of Further Water Pollution
CSPA joined with other environmental groups in submitting a letter opposing SB 623 unless the bill is significantly amended. We strongly support the stated goals of SB 623 – The “Safe and Affordable Drinking Water Fund Bill” – to provide clean drinking water to communities in need and simultaneously working to reduce and eliminate water pollution. However, we have concerns with SB 623 since recent amendments create a regulatory framework that could perpetuate, rather than mitigate, practices that result in polluted ground and surface waters.
The bill would establish a new Safe and Affordable Drinking Water Fund in the California state treasury to assist low-income communities and individual domestic water well users whose drinking water is contaminated at levels that exceed drinking water standards.
But after legal analysis, we believe the current language offers polluters a dangerously broad “safe harbor” from enforcement of water pollution laws by the State and Regional Water Quality Control Boards. This would have the consequence of preventing the enforcement actions that are currently helping to provide safe, clean, and affordable interim drinking water to impacted communities and households.
Under the bill’s current language, the public has no idea how much money a farm operation must pay into the Fund in order to obtain broad enforcement immunity, or how much funding will be available from such sources to carry out the replacement water objectives. Additionally, the recent amendments to SB 623 create a pay-to-pollute framework that allows agricultural polluters to continue polluting practices. By exempting agricultural operations that pay an “applicable fee” and “enroll” under a Waste Discharge Requirement or waiver, the bill would effectively shield these operations from any realistic possibility of enforcement.
The Regional Water Boards and the courts have recently begun to hold agricultural dischargers accountable for their pollution and to require them to clean up the pollution they have caused. Stepping onto the slippery slope of an enforcement safe harbor and exempting these polluters from state water quality laws that apply to all other industries, in return for unspecified payments into a drinking water fund, sends the wrong message. It undermines decades of ongoing work in courts and by advocacy organizations and water agency employees. Shielding polluters from the tools that are finally working is antithetical to our shared goal of clean water.
More time, analysis, and discussion with experts and a broader set of stakeholders is needed. The opposition letter requests that the bill be made a two-year bill in order to incorporate the specific language necessary to ensure safe and affordable drinking water for all Californians.
Here is the full text of the letter and the Press Release:
On July 5th, CSPA joined with other environmental organizations in opposing AB 313 which would impede the orderly administration of water rights in California. It threatens water rights holders, California’s rivers and fisheries and the communities and jobs that depend on healthy fisheries. The letter was sent to Senator Jackson and members of the State Senate Judiciary Committee. The bill, introduced by Assemblyman Adam C. Gray (D-Merced), proposes to unnecessarily and imprudently restructure water rights hearings.
AB 313 would limit the SWRCB’s authority to enforce violations of water rights through administrative civil liability. Existing law authorizes the board to issue an order to a person to cease and desist from violating, or threatening to violate, certain requirements relating to water use, including diverting or using water, other than as authorized.
This bill would establish a new Water Rights Division within the Office of Administrative Hearings. The bill would require a hearing concerning the administrative civil liability to be held before the division and overseen by an administrative law judge. Administrative hearings regarding water rights are complex matters that require expertise. The State’s existing administrative law judges currently lack expertise on water rights which is necessary to effectively administer water rights. Members of the SWRCB are required to represent a diversity of expertise and interests to ensure they represent the public interest and are qualified to serve.
Under the proposed legislation’s newly-created Water Rights Division, the existing enforcement process would be fragmented and create duplicative and overlapping processes. This change to existing law would increase costs both for the State and water rights holders who are subject to the enforcement. AB 313 is estimated to increase State costs by more than $1.4 million annually due to duplicative hearings and a more inefficient enforcement process.
CSPA presented oral scoping comments on June 28, 2017 for the relicensing of the Potter Valley Project in Mendocino and Lake counties. The small 1900’s-era hydroelectric project generates power with water that is piped from the upper mainstem Eel River to the upper Russian River watershed. The project’s Scott Dam, which forms Lake Pillsbury in Lake County, blocks passage for salmon and steelhead to the headwaters of the mainstem Eel River. In the past decade, the project has become much more valuable for the water it delivers than the power it produces.
In addition to issues specific to the project, the relicensing poses important legal and policy issues about relicensing generally and the relation of relicensing to water supply. It is also the first relicensing in California since that has begun since the February, 2017 spillway incident at Oroville Dam, and may offer insight into whether the Federal Energy Regulatory Commission will consider dam safety in future relicensings. In addition, it is the first relicensing that PG&E has initiated since PG&E withdrew its license application for the DeSabla – Centerville Project in Butte County in February, 2017.
On June 13, 2017, PG&E and a group of stakeholders including CSPA dedicated the Rock Creek Bench recreation access and parking area just downstream of Rock Creek Dam on the North Fork Feather River. The facility will provide safe access to the river for whitewater boaters, who previously had to park on the far side of the highway that runs next to the river and cross the highway with kayaks and gear. Because PG&E has now agreed to keep the area open during the summer recreation season, the facility will also provide parking for anglers and access to a long riffle and other fishy-looking water that was previously very cumbersome to reach. PG&E has committed to maintaining a portable restroom at the site while it is open.
CSPA’s Chris Shutes (center) with other members of the Rock Creek – Cresta Ecological Resources Committee and additional people who worked to complete the Rock Creek Bench project. June 13, 2017
The Rock Creek Bench was the result of a multi-party negotiation that took place within the Ecological Resources Committee for PG&E’s Rock Creek – Cresta Hydroelectric Project. The Committee implements the settlement agreement that CSPA and others reached in the early 2000’s and that the Federal Energy Regulatory Commission incorporated into its license for the Project. CSPA’s Chris Shutes gave a brief talk at the dedication of the facility, which describes the genesis of the facility and the negotiation. The text of that talk is here.
In the high flows of Water Year 2017, general fishing access to the North Fork Feather River has substantially improved. The high flows blew out much of the willows, alders and other vegetation along the stream banks that had previously made fishing difficult. This should be a good year for angling on the North Fork Feather.
The Delta Stewardship Council is in the process of revising the Delta Plan and related environmental documents following the successful litigation by CSPA and others in vacating the previous Plan. Unfortunately, the Council is again ignoring the strict requirements for a Delta Plan mandated by the State Legislature in the 2009 Delta Reform Act. For example, the Council is proposing to adopt an isolated dual conveyance system to transport Sacramento River water under the Delta through twin tunnels to ensure water supply reliability. They propose to do so without serious consideration of alternatives and before determining how much water is necessary to restore and maintain the Delta’s degraded ecosystem and public trust resources and before project-level environmental review has occurred.
In a series of comment letters and appearances in public meetings, a coalition of environmental and fishing organization, including CSPA, have informed the Council that planning must occur before plumbing and that a reasonable range of alternatives to tunnels must be fully evaluated before any final decision is made. Failure to do so will inevitably lead to another round of litigation.
CSPA Joins With Others in Protesting Westland’s Lobbyist Appointment as Deputy Secretary of Interior
The Trump Administration has appointed David Bernhardt as Deputy Secretary of the Department of Interior. Mr. Bernhardt was a former Interior Solicitor and has been a lobbyist for Westlands Water District. He is a registered lobbyist for Westlands and a partner in the Washington law firm of Brownstein-Bernhardt, which received more than 1.7 million dollars in fees from Westlands between 2011 and 2017.
CSPA and fourteen other environmental and fishing organizations submitted a letter to the Senate Committee on Energy and Natural Resources regarding his confirmation. The letter detailed Mr. Bernhardt’s actions as Interior Solicitor that benefited Westlands and his extensive efforts as a lobbyist to impact Interior water policy and budgets to the exclusive financial benefit of Westlands. It states that questions regarding whether federal laws have been violated and whether millions of taxpayer dollars have gone to benefit Westlands that should have been deposited in the Federal Treasury should be resolved before Mr. Bernhardt is confirmed.
By water district/agency standards, the consulting/lobbying fees paid by Westlands are among the largest in the Nation. Westlands is the largest federal water district in the nation and depends upon irrigation water exported from the Delta. The District receives substantial public benefits in the form of subsidized water rates, power, and operation and maintenance charges. Unlike other western water and irrigation districts in the seventeen Western States, even Westlands’ operation and maintenance costs are partially paid by taxpayers.
Chris Shutes, CSPA’s hydropower advocate, gave a presentation about hydropower relicensing at the conference of the Association of California Water Agencies on May 10, 2017, in Monterey. He appeared as part of a panel that included the relicensing leads for a water agency and an irrigation district, as well as a hydropower relicensing manager from the Federal Energy Regulatory Commission (FERC). The panel was moderated by an attorney from Washington D.C. whose specialty is FERC, and in opposition to whom Chris has filed several pleadings over the last ten years. Chris’s presentation is linked here. Chris survived, and actually enjoyed, the experience.
CSPA joined Friends of the River and three other groups in an April 19, 2017 clarification and public process request to the Federal Energy Regulatory Commission (FERC) concerning repairs of the damaged spillway works at Oroville Reservoir. The letter asks FERC to release as much information to the public about damage, plans and repairs as is reasonably possible. It asks FERC and the Department of Water Resources (DWR) to allow discussion of this information in a public process that allows meaningful public input and response to the design and repair of dam’s facilities. The letter also asks FERC to clarify the process by which parties to the relicensing of the dam can engage in the reconstruction process. In addition to Friends of the River and CSPA, the letter is signed by South Yuba River Citizens League, Sierra Club, and American Whitewater.
The letter in particular advocates for construction of a complete second (“auxiliary”) spillway at the dam, in addition to reconstruction the main spillway that failed in early February. The very limited use of the auxiliary spillway on February 12 and 13, 2017 revealed its flawed design and caused the evacuation of 188,000 people from Oroville and downstream communities. DWR has not announced whether it plans to construct a concrete-lined auxiliary spillway parallel to new concrete main spillway, or whether DWR plans to build a concrete apron on the auxiliary spillway from which water would spill onto the dirt dam below.
On 14 April 2017, the California Sportfishing Protection Alliance (CSPA) submitted extensive comments on proposed amendments to the Central Valley Regional Water Quality Control Board’s (Regional Board) Water Quality Control Plan for the Sacramento and San Joaquin Valleys (Basin Plan). The proposed amendments address salinity limits in the San Joaquin River upstream of Vernalis. CSPA prepared and submitted the comments on behalf of itself, the California Water Impact Network, Pacific Coast Federation of Fisherman’s Associations, AquAlliance, Institute for Fisheries Resources and the Environmental Water Caucus.
Seventeen years ago, the State Water Board ordered the Regional Board to move the present San Joaquin River salinity compliance point at Vernalis upstream in order to protect beneficial uses in the River. The Regional Board never did so, despite repeated complaints from CSPA. Finally, the Regional Board asked CV-Salts, a stakeholder group, comprised of water agencies, irrigation districts and farmers, to develop a proposed Basin Plan Amendment establishing a salinity compliance point at Crows Landing on the river near Turlock. CV-Salts, in turn, formed a Lower San Joaquin River Committee (LSJR Committee) that concluded that almonds were the most sensitive beneficial use on the San Joaquin. The proposed salinity limits, which will be considered by the Regional Board in June 2017, are as much as two and a half times the present Vernalis salinity limits.
Among numerous deficiencies, CSPA pointed out that the LSJR Committee never identified or analyzed the various critical life stages of fish species that migrate and spawn in the river. These include salmon, steelhead, green and white sturgeon, striped bass, threadfin and American shad and splittail. Sensitive life stages of these species are considerably more sensitive to salinity than almonds and these fisheries have already been grievously harmed by excessive concentrations of salinity. If the Regional Board approves the proposed Amendment, CSPA is prepared to oppose it all the way through the courts, if necessary.
CSPA has joined a broad coalition in recommending that the Army Corps of Engineers delay work on an Environmental Impact Statement for Centennial Dam, proposed for construction by Nevada Irrigation District on the Bear River near Colfax. A Comment Letter submitted on April 10, 2017 under the banner of the Foothills Water Network is also signed by 17 environmental, fishing and watershed groups, the Nevada City Rancheria of the Nisenan Tribe, 2 whitewater outfitters, and 4 individuals.
The letter recommends: “Prior to processing NID’s permit application, the Corps should require NID to evaluate water conservation and efficiency as an alternative to the proposed Centennial Reservoir.” It elaborates:
NID has not meaningfully undertaken the integrated water management strategies described in EPA’s Best Practices Document. NID has not undertaken a credible evaluation of the potential for these best practices to address the stated purpose of the Proposed Action to increase resiliency and security in the local water supply in the face of drought, climate change, and currently planned growth. This evaluation may eliminate the need for the Proposed Action or reveal that a significantly reduced action is sufficient to achieve the stated purposes.
Prior to analyzing the Proposed Action, the Corps should require this evaluation, including an analysis of a full suite of non-structural strategies … .
Also on April 10, American Rivers named the Bear River the second most endangered river in the United States in 2017. See https://s3.amazonaws.com/american-rivers-website/wp-content/uploads/2017/04/11121018/MER2017_FinalFullReport_04062017.pdf
The California Sportfishing Protection Alliance et al. (CSPA, CWIN and AquAlliance) joined the County of San Joaquin and Local Agencies of the North Delta in submitting rebuttal testimony in Part I of the State Water Resource Control Board’s (SWRCB) evidentiary hearing on the California Waterfix project proposed by the Department of Water Resources (DWR) and U.S. Bureau of Reclamation (USBR). The project would construct two huge tunnels to siphon Sacramento River water under the Delta for export to southern California. Part I of the hearing is focused on water rights and harm to legal users of water and Part II will address fish & wildlife and public trust issues. CSPA participated in Part I because we hold riparian water rights at Collinsville.
CSPA secured the services of Mark Del Piero, a professor of water law and former Vice-Chairman of the SWRCB (1992-1999), to testify that the WaterFix project would harm existing water users and that DWR and USBR would need to obtain new water right permits. Mr. Del Piero’s twenty-seven-page rebuttal declaration eloquently describes the over-appropriation of water in California and that proponent’s need to apply for new water rights, as the project’s existing rights have expired. He discusses the lack of an adequate project description, the failure of proponents to provide required water availability and “no injury” analyses and that the project will, in fact, grievously harm and cause injury to existing legal users of water. The law prohibits the SWRCB from granting a change in point of diversion if the change would harm existing water users. Brandon Nakagawa, San Joaquin County’s Water Resources Coordinator, provided rebuttal testimony on proponent’s failure to identify the legal users of groundwater within the project area and how the project will harm legal users and uses of groundwater.
During direct testimony in Part I, CSPA et al. provided eight expert witnesses that provided extensive testimony regarding the WaterFix project’s myriad inadequacies and how construction and operation will irreparably injure legal users of water. We will be an integral participant in Part II and the inevitable subsequent legal challenges.
Del Piero Rebuttal Testimony [Note: the testimony appears with deletions because the hearing officers ordered Mr. Del Piero to save all discussion of impacts to fish and wildlife and the public trust for Part II of the hearing.]
The Salmonid Restoration Federation (https://www.calsalmon.org/) named Chris Shutes – me – “Restorationist of the Year” on the concluding day of its 2017 annual conference in Davis. It is recognition that I did not expect and that I value very greatly.
The awards banquet was held last Saturday, April 1, 2017. The award was not an April Fools joke. However, I somewhat felt the fool because, although I was at the conference to give a talk about reintroducing salmon to the North Yuba River, none of my colleagues twisted my arm to stick around for dinner to accept an award no one had told me I was about to receive. I left early for a family gathering and missed my own surprise party. April Fool indeed.
At CSPA, we don’t spend much time tooting our own horns. We spend most of our time buried in regulatory work, at meetings, on the phone, or behind computers. So in a break with tradition, I decided to share mention of this award on the web. I also decided to share my thoughts after receiving this award, which I have called “things I would like to have said.”
CSPA Joins Broad National Coalition to Oppose Federal Legislation to Reduce Protection Against Invasive Species
CSPA has joined with more than seventy-five other organizations from around the nation to oppose the Commercial Vessel Incidental Discharge Act that would expose our nation’s water to the spread of invasive aquatic species discharged by foreign shipping vessels. The Bill would transfer regulatory authority from the Environmental Protection Agency to the Coast Guard; eliminate the Clean Water Act’s protection of water quality necessary to protect public health, native species and the use of water for municipal and industrial purposes; and remove the Clean Water Act’s function of driving the development of improvements in treatment technology. It would also limit technical innovations by only requiring the Coast Guard to conduct reviews of the ballast water standard in 2022 and every 10 years thereafter.
CSPA filed extensive comments March 17, 2017 on the State Water Board’s plan for improving flows in the lower San Joaquin River and for allowing more salinity in the southern Delta during the growing season.
CSPA supports the Board’s approach of requiring the release of a percent of unimpaired flow in February-June in the Stanislaus, Tuolumne and Merced rivers. However, CSPA thinks the Board’s plan as stated will not keep enough water in rivers to restore fisheries. The percent-of-unimpaired flow approach is universally opposed by San Joaquin River water users because they divert too much water and don’t want to give it back. CSPA thinks of it as being like a person whose kidneys are failing due to blood loss: you can treat the kidneys alone in the blood-starved body (the water users call this “functional flows”) or you can put enough blood back in the system for it to heal itself.
CSPA opposes weakening the salinity standard.
Unfortunately, there are many defects in the Board’s plan as described in its “Substitute Environmental Document” or SED. CSPA describes many of these flaws, including failure to clearly define the proposed project, modeling that doesn’t line up with what the Board actually proposes to do, and an “adaptive implementation” program that pushes key decisions to other people in the future. CSPA recommends that the Board redo its modeling and analysis comparing variable values for flows, carryover reservoir storage, diversion allocations, water temperature targets, levels of south Delta exports by the state and federal water projects, level of contribution to flows by the City of San Francisco, and specific plans for droughts.
As an attachment to CSPA’s comments, biologist Tom Cannon provided recommendations for temperature targets in the lower San Joaquin River and its tributaries.
In 2005, Ron Stork of Friends of the River warned in a Motion to the Federal Energy Regulatory Commission (FERC) that the “ungated, unarmored spillway” at Oroville Dam needed to be made into a real spillway with real concrete. The term “spillway” is generous. It’s a concrete wall with the top of a huge reservoir on one side and a hillside covered with dirt on the other.
Mr. Stork and his colleagues in the Sierra Club and the South Yuba River Citizens League wrote to the Federal Energy Regulatory Commission:
A single operational use or multiple operational uses (with failure to repair any preceding or cumulative damage) of the ungated spillway could result in a loss of crest control of Oroville Dam. A loss of crest control could not only cause additional damage to project lands and facilities but also cause damages and threaten lives in the protected floodplain downstream. An unarmored spillway is not in conformance with current FERC engineering regulations.
It happened one night. That night was February 12, 2017. Water amounting to 5% of the rated capacity of this “auxiliary” or “emergency” spillway passed over it. The precise scenario Mr. Stork and colleagues described in 2005 appeared imminent. The residents of Oroville, Yuba City, Marysville and other areas along the lower Feather River had to pack up and go with almost no advance warning.
Flashback to 2005. As succinctly described in a February 12, 2017 article in the San Jose Mercury News, Mr. Stork was blown off by the Department of Water Resources, the State Water Contractors and their attorney, the Metropolitan Water District [of southern California] and their attorney, and the Federal Energy Regulatory Commission.
On February 13, 2017, FERC ordered an investigation. Meanwhile, Jeff Kightlinger, general manager of Metropolitan Water District, told the Sacramento Bee he was right the first time. His agency had not been cheaping out in arguing against a real spillway: “‘On that issue, we did not say it was a cost issue,’ Kightlinger said Monday. ‘We said that was an issue that needs to be decided in the appropriate forum.’”
This is supposed to make it okay. To borrow from Franz Kafka, Mr. Stork knocked at the wrong door in the castle. He took his issue to the wrong bureaucracy.
This is life before FERC. The argument is not that something is a bad idea. It’s that it’s someone else’s problem. Many of the FERC license holders and the consultants and attorneys who work for them have this cynical game down to a science: the “best available science” of keeping evidence out of the record. Fighting back takes time and patience and incredible tenacity. And often, it takes more than a decade.
Ron Stork was the undisputed leader of advocacy on the Oroville auxiliary spillway. CSPA was there behind him. In CSPA’s 2006 Motion to Intervene and Comments on the Oroville DEIS, CSPA wrote:
The DEIS takes a minimalist approach to flood control issues, dismissing them as an issue not appropriately addressed in relicensing. This pushes discussion of necessary modifications to the auxiliary spillway on Oroville Dam to a future which will likely only happen in the event of a disaster.
We would rather have been wrong. We would also rather have been listened to and not chased out of the discussion based on process.
Dam owners have a responsibility to the public that goes beyond meeting “regulatory constraints.” Doing the responsible thing is not just for regulators to say. Limiting or reducing constraints is not a win. Today, for the moment, 180,000 people have had their lives turned upside down, and they are fortunate that so far it wasn’t worse. In the best of cases, they will be looking over their shoulders till July.
By Chris Shutes (CSPA) and Dave Steindorf (American Whitewater)
In a surprise move, PG&E announced on February 2, 2017 that it was withdrawing its application to relicense the DeSabla – Centerville Hydroelectric Project on Butte Creek and the West Branch Feather River. The reach of Butte Creek affected by the Project is home to the only remaining viable population of spring-run Chinook salmon in California’s Central Valley.
Spring-run salmon in Butte Creek have seen a resurgence over the last twenty years. A substantial part of this was due to investments and improvements downstream of the Project. In addition, since 2003, PG&E and state and federal resource agencies have greatly improved the management of the Project for the fish.
From 2004 to 2009, PG&E went through a formal relicensing process with the Federal Energy Regulatory Commission (FERC) to relicense the Project. In 2016, the State Water Board issued a Water Quality Certification needed for a new license. A new license from FERC was widely expected in 2017.
In a DeSabla – Centerville fact sheet and map that PG&E distributed with its announcement, PG&E describes the project as follows:
The Project diverts a portion of the natural flow of water from Butte Creek and West Branch of the Feather River (WBFR) into canals that carry the water for use in hydroelectric powerhouses. Once water is run through the powerhouses it is ultimately released to Butte Creek. During the summer, the natural flow of the WBFR is augmented by water releases from Round Valley and Philbrook reservoirs. Project diversions have provided additional flow to Butte Creek for more than 100 years. One of the beneficiaries of this additional flow has been the aquatic community in Butte Creek, including Central Valley spring-run Chinook salmon.
While it is true that water from the Project augmented flows below Centerville Powerhouse for 100 years, it is only since 1980 that the Project benefited fish in the eight miles of Butte Creek between DeSabla Powerhouse and Centerville (see map). The 2016 Water Quality Certification requires all the Butte Creek water and the imported water to remain in Butte Creek once it exits DeSabla Powerhouse.
The DeSabla – Centerville Project facilities are built around infrastructure that dates to 1900 and in some cases before. Commissioned in 1900, Centerville Powerhouse has been offline since 2011, and ran only partially for the five years previous to that. To function at all, it would need a complete rebuild. The estimated cost to rebuild was $39 Million in the mid-1990’s; it is almost certainly now double that, or more. DeSabla Powerhouse, nine miles upstream of Centerville, is relatively modern and in good condition, but the small reservoir that feeds it allows water to heat up too much passing through.
In California’s modern energy market, the capability to regulate the grid gives hydropower its greatest value. But unlike many other hydropower projects, powerhouses in the DeSabla – Centerville Project run at a constant rate, day and night, regardless of when power demand is high or low. They also have no ability to help regulate the power grid, especially to respond to short-term changes in supply from intermittent renewable sources like wind and solar.
The real value of the Project is the water it imports from the West Branch Feather River to Butte Creek: value for the fish and value for the farms that use the water further downstream. The fish can’t pay for this service; the farms have never been asked to pay and never have.
PG&E’s decision not to relicense the Project does not lead to a path that is simple. In the next few months, moving into the next few years, PG&E will need to establish a stakeholder engagement process to help determine the Project’s long-term disposition. PG&E will need to engage resource agencies, downstream water rights holders, interested NGO’s, and local residents. The DeSabla – Centerville Project has been part of the community for over a century. Its resource values are enormous. The water that it supplies downstream is essential to the irrigation of thousands of acres of crops.
On September 19, 2015, PG&E bought an advertisement on the editorial page of the San Francisco Chronicle entitled: “Of Bees, Birds and Chillin’ Chinook: All in a Sustainable Day at PG&E.” Mr. Tony Earley, CEO of PG&E at the time, started the ad by extolling PG&E’s work to keep salmon in Butte Creek cool. His major theme stated: “The days are long past when energy companies could afford to think of their mission as separate from conservation, sustainability and good management of our natural resources. Our view must be for the long term. That’s why we live our commitment to conservation through a number of programs.”
We look forward to the opportunity to help PG&E maintain this well-stated goal.
The Federal Energy Regulatory Commission (FERC) has dismissed a petition by Idaho Power Company that sought to limit the right of states to enforce water quality requirements when FERC relicenses hydropower projects. In a January 2 post, we described the circumstances of the case and provided the intervention and Motion to Dismiss of CSPA and other conservation groups.
Following its January 19, 2017 meeting, FERC issued an Order that explicitly affirms the limitations that the federal Clean Water Act places on the Commission. The Order states in part: “[T]he Commission has no authority to review or reject conditions of a state’s water quality certification. Nor would we have any authority to resolve conflicts between the states’ certifications, if they exist, or conflicts between the states’ certification conditions and any mandatory fishway prescriptions or other mandatory conditions.”
One of CSPA’s many strategies in the past several years has been to defend the federal Clean Water Act from attack. Much of this defense has been in the context the Federal Energy Regulatory Commission’s (FERC) relicensing of hydropower projects. Section 401 of the Clean Water Act requires that an affected state certify that certain actions (like a FERC relicensing) conform to state water quality laws. In California, the State Water Board has the authority over these certifications.
Recent federal Energy legislation, pushed heavily by PG&E, would allow the Federal Energy Regulatory Commission (FERC) to reject a state’s decisions. Since FERC consistently make less protective decisions about rivers affected by hydropower than the State Water Board, this would be a bad change in law. CSPA and hundreds of other conservation groups fought this change in Congress for a year and a half, and so far we have defeated it.
In late November, 2016, Idaho Power Company filed a petition asking FERC to rule that the Federal Power Act preempts state law in a case in Oregon. The case involved the relicensing of the Hells Canyon hydroelectric project on the Snake River, where the Snake is the border between Idaho and Oregon. In CSPA’s view, this petition was not really about federal preemption of a specific state law. Rather, it was a collateral sneak attack on the state of Oregon’s exercise of Section 401 of the federal Clean Water Act. An adverse ruling would give FERC the power over the states that PG&E is trying to create in its Energy legislation.
CSPA decided that this attack was significant enough to warrant action, even though it was out of state. Working with two national groups, a state river organization from Idaho, an Oregon legal advocacy group, and two Snake River watershed groups, CSPA assembled a motion to dismiss Idaho Power’s petition. The motion was filed on December 30, 2016.
On December 16, 2016, CSPA’s Bill Jennings and Chris Shutes made presentations to the State Water Board regarding the need to increase flow from the San Joaquin River into the Delta. The hearings held in Stockton are part of Phase I of the Water Board’s update of the Bay-Delta Plan.
Bill Jennings discussed five major flaws in the “Substitute Environmental Document” (SED) that the Board is using to evaluate changes to the Plan. 1) The SED does not include the mainstem San Joaquin in its analysis, and does not propose requiring equitable flow out of Friant Dam. 2) The SED makes no defensible scientific justification for recommending that 40% of February-June unimpaired flow be released from the Stanislaus, Tuolumne and Merced rivers; more is needed. 3) The SED contains no analysis of how the Board will balance resources and offers no quantification of the benefits of improved flow. 4) The SED’s recommendation to weaken south Delta salinity standards relies on an outdated report with identified errors in analyzing impacts to Delta agriculture, and the SED does not analyze impacts to fish and aquatic vegetation that would result from weakening the standards. 5) The SED does not describe how Plan’s the salmon-doubling goal, which has been law for over twenty years as salmon populations in the San Joaquin collapsed, will be enforced.
Chris Shutes discussed four major points in his presentation. 1) California and the San Joaquin tributaries in particular have an unsustainable agricultural business model founded on the overallocation of water. 2) The urban model passed by the legislature in 2009, 20% reduction in urban water use by the year 2020, is a better model for agriculture than the existing boom or bust cycle that the SED accepts. 3) The SED uses modeling unrealistically to avoid defining the proposed project and its impacts. 4) San Francisco and the Bay Area have to do their fair share in improving flows in the Tuolumne River. Following Chris’s presentation, Peter Drekmeier of the Tuolumne River Trust provided further discussion of San Francisco’s obligation and analysis of how San Francisco has exaggerated impacts to the Bay Area of increasing Tuolumne River flow.
The complete video of the December 16, 2016 hearing can be seen at:
Bill Jennings speaks from 5:50 to 5:59. Chris Shutes speaks from 2:12:50 to 2:19.
Peter Drekmeier’s presentation on impacts to the Bay Area can be seen at 2:19 of the video. A related video from the Tuolumne River Trust can be seen at: https://www.youtube.com/watch?v=FJQ5RhdU6vY&feature=youtu.be