CSPA in the News
Big setback for Gov. Brown’s twin tunnels delta water projectDec 7, 2018 Read Online
Council staff says WaterFix inconsistent with Delta Plan; Council chair urges DWR to withdrawNov 24, 2018 Read Online
- Major Setback for Delta Tunnels: DWR Withdraws Certification that WaterFix Is Consistent with Delta Plan
- Water Budgets: Numbers Matter
- Delta Stewardship Council Recommends Pause in Delta Tunnels Project
- State Water Board Postpones Decision on San Joaquin River Flows
- Federal Dam Safety Regulators Describe Need for Big Changes at Oroville Dam
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Major Setback for Delta Tunnels: DWR Withdraws Certification that WaterFix Is Consistent with Delta Plan
The Department of Water Resources (DWR) has withdrawn its Certification that its proposed Delta tunnels (WaterFix) project is consistent with the Delta Plan. As anticipated in a November 16, 2018 CSPA post, there is now no chance that the Delta tunnels will be approved and begin construction before Governor Brown leaves office in January 2019.
In a December 7, 2018 letter to Chair of the Delta Stewardship Council Randy Fiorini, DWR Director Karla Nemeth wrote: “[T]here are unresolved issues related to interpretation of the requirements of the Delta Reform Act and Delta Plan policies. Therefore, DWR is hereby withdrawing the Certification of Consistency for WaterFix that was filed on July 27, 2018.”
This is as close to an admission as DWR is likely to come. In the same letter, Director Nemeth also pleaded: “DWR firmly believes the timing of filing the Certification of Consistency for WaterFix was appropriate ….”
Jeff Kightlinger, General Manager of the Metropolitan Water District of Southern California, one of the biggest WaterFix proponents and prospective beneficiaries, was quoted in the Sacramento Bee as saying: “I hope it’s just a time issue, like a fix-it ticket.” This is the kind of glib self-assurance that makes it satisfying to see DWR and its team taken down a peg by the previously-reported Delta Stewardship Council’s staff report and Council chair’s admonition to withdraw. For the past 3 years, DWR has sought to characterize a constantly changing project description as what it told the stewardship council was “adjustments.”
Clearly, a vague project description did not pass muster. The Delta Stewardship Council could not overlook major project uncertainties, such as the role if any of the Bureau of Reclamation in the project and in meeting state-required regulations for Delta protection. DWR will have to come back to the Delta Stewardship Council with a project that has resolved such major uncertainties. Perhaps even more difficult, DWR will need to confront the litany of project impacts to the Delta, its residents, and its recreational users. Representatives of in-Delta interests presented compelling evidence to the Delta Stewardship Council about the impacts of millions of pile-driver strikes, thousands of barge trips, and daily traffic snarls resulting from draw bridge openings to accommodate the barge trips. It is not simple to change the project to resolve these impacts.
The more DWR changes the project, the more likely it may be for DWR to persuade the Delta Stewardship Council. But the more the project changes, the more those changes may cascade into other processes. Changing the project may result in the need for another round of environmental review. It could possibly also require additional testimony in the WaterFix water rights hearing at the State Water Board.
December 7, 2018 was a day of victory for those who have fought the Delta tunnels over the last decade. But it is a victory in a battle, not in the war. CSPA fully expects to be back before the Delta Stewardship Council to oppose a second Certification of Consistency for WaterFix.
A recent series of articles and blog posts by Jeff Mount and others from the Public Policy Institute of California (PPIC) proposes a system of “water budgets” for the environment as part of a new system for managing water and rivers in California. These follow on a November 2017 PPIC paper by Mount et al. entitled Managing California’s Freshwater Ecosystems, which highlighted the concept of water budgets for the environment based on experiences in Australia.
A November 18, 2018 guest article by Mount and Ellen Hanak in the “CALmatters” newsletter leaves the realm of the conceptual and intervenes in ongoing regulatory process and public debate. It both seeks to apply the water budget concept to the public discussion about the State Water Resources Control Board’s (State Board) ongoing update of the Bay-Delta Plan and opines that “voluntary accords offer the best hope for turning things around in the Delta’s troubled freshwater ecosystems.”
Exhibit A in the demonstration of why academics and policy analysts do poorly when intervening in regulatory process is the following sentence from the November 18 article: “Parties should avoid getting hung up on the specific amount of water initially set aside for ecosystems.” Oh dear.
It’s pretty darn infuriating when those of us who have been fighting for a decade to actually establish a water budget for the environment are told we’d be better off making a deal in which the size of the budget really doesn’t matter.
The State Board’s approach in its ongoing update of the Bay-Delta Plan is to establish a flow requirement in the Stanislaus, Tuolumne, and Merced rivers of 40% of the February-June unimpaired flow. This would establish a real water budget for the San Joaquin River and its contribution to the Delta. At CSPA, we’ve said that this water budget is in fact too small to recover fish species in these rivers and the Delta.
On the other hand, what the State Board proposes is about double what water users in the San Joaquin watershed have proposed. CSPA pointed this out before the State Board in oral comments on November 7, 2018, at the meeting where the State Board was scheduled to adopt the San Joaquin flow portion of the Bay-Delta Plan. A letter from Governor Brown and Governor-elect Newsom persuaded the State Board to delay yet another month (see story here) in order to allow more time for “voluntary agreements” to develop. The Director of the California Department of Fish and Wildlife (CDFW) presented the Governors’ letter and the case for more time to reach agreements, and spoke in general about water budgets without talking numbers.
Speaking against delay and in favor of a budget with enough water to make a difference to fish, CSPA used this graph from State Board staff’s October 24, 2018 reply to comments from Tuolumne River water users:
The orange bars in the graph represent the Turlock and Modesto Irrigation Districts’ proposed budget for the Tuolumne River, while the solid blue bars represent the State Board’s budget. CSPA characterized the Districts’ proposal as “fifty cents on the dollar.” CSPA pointed out that not even shown on this graph is the 60% of unimpaired flow that the State Board’s 2010 Delta Flow Criteria Report recommended for the San Joaquin River; compared to that, the Districts’ proposed budget would be “thirty-three cents on the dollar.”
Sorry, but those of us who’ve been working ten years to achieve water budgets get just a little “hung up” when those water budgets get slashed by a half or two-thirds. When academics and policy institute specialists weigh in at 11:59 pm to support “voluntary agreements” founded on those amputated budgets, those in the trenches get more than a little “hung up.” These agreements are being touted by Director of CDFW as well as the Director of the Department of Water Resources (DWR) and the water user community in direct opposition to regulatory process, and in particular to how that process is setting the environmental water budgets that are supposed to be the answer. Mount and Hanak’s lack of situational awareness of how dicta from a policy institute influence actual political and regulatory process is unforgivable, especially when the stated interest is river and ecosystem protection. In a word, the practical effect of their intervention is to support the water users and oppose the State Board, not to leverage the regulatory authority of the State Board, but to undermine it.
Perhaps the major reason that there haven’t been any voluntary agreements after six years of negotiations on the San Joaquin is that the water users have never taken the State Board’s proposed flows or the interests of environmental and fishing groups seriously. The water users, including the City of San Francisco, have told environmental and fishing groups that a small increment of water above existing flows will meet their interests. As the supposed sweetener to a bitter brew, they’ve proposed non-flow measures that are timid in scope and scale, often financed by selling the water they shouldn’t have diverted in the first place.
For their part, CDFW and the California Department of Resources have not leveraged their position to achieve substantial increases in flow. Interested in a deal above all, they never conceived of an outcome where irrigation deliveries were substantially reduced. So of course they haven’t thought outside the box of the world of water, to imagine the scale of investment it would take to improve irrigation efficiency to a point where substantially mitigating large-scale reductions in water deliveries were actually possible.
And none of the potential negotiating parties has had the vision to look at the Sacramento – San Joaquin – Delta hydraulic system as whole, with the possible exception of DWR and the Bureau of Reclamation, who want to take more water out of the system than they do today. Fundamentally, the approach does not conceive that there could be a business model for Central Valley water use that does not live off the water needed to restore public trust resources, or a funding source outside the conventional world of water and power sales.
Finally, negotiations conducted behind the wall of a confidentiality or non-disclosure agreement lack credibility by virtue of secret process, but this never made enough difference to the negotiating parties for them to insist on daylight.
Mount and Hanak tell us: “What matters more [than a “specific amount of water”] is putting in place a system for adjusting this allocation over time as scientific understanding about what works improves.” This primrose path is not new. Its previous incarnation was called CalFed, the grand deal of the 1990’s that circumvented the last update of the Bay-Delta Plan and substituted process for substance, “science” and “adaptive management” for water. The problem since CalFed and its implementing vehicle Water Rights Decision 1641 has not been lack of science. It’s been lack of water. It’s also been the fact that when the “flexibility” to make management decisions is faced with a choice between science and money, it’s resolved in favor of money. What’s lacking is not science, or a governance structure to implement it. What’s lacking is the political will to make difficult decisions based on science.
The good governance, habitat improvements, science, and reliable funding that Mount and Hanak recommend are all important materials for a new business model for Central Valley water operations. But they must be built on a foundation of water.
It now appears that there is almost no chance that Delta tunnels will be approved and begin construction before Governor Brown leaves office in January 2019. The roadblock emerged on November 15, 2018 in a proceeding before a state agency that most people don’t know about and even fewer understand: the Delta Stewardship Council.
Following a day-long workshop on November 15, the Chair of the Delta Stewardship Council recommended that the Department of Water Resources (DWR) further define its Delta tunnels (“WaterFix”) project before asking the Council to approve the project. Chair Randy Fiorini’s comments were supported by comments by Council member Frank Damrell. (See details in Maven’s Notebook at https://mavensnotebook.com/2018/11/15/this-just-in-cal-water-fix-workshop-at-the-delta-stewardship-council-ends-with-chair-fiorini-suggesting-the-department-of-water-resources-withdraw-consistency-determination/).
The Delta Stewardship Council must find that WaterFix is consistent with the Delta Plan before DWR can begin construction of WaterFix facilities. Nine “appellant groups” appealed DWR’s July 27, 2018 Certification that WaterFix is consistent with the Delta Plan. CSPA is part of Appellant Group 3, whose appeal was filed by Bob Wright with Friends of the River. (For the Certification, the appeals, and the voluminous 30,000+ document record for the proceeding, see https://coveredactions.deltacouncil.ca.gov/profile_summary.aspx?c=1790396c-5419-4ccb-b0d3-10cc4e985105).
The Delta Stewardship Council held a hearing on the appeals on October 24-26, 2018. At hearing, CSPA’s Chris Shutes summarized the portion of Group 3’s appeal dealing with flow requirements and the incompleteness of DWR’s proposed project, and rebutted some of DWR’s assertions.
Following the hearing in October, Council staff produced a Staff Draft Determination (http://deltacouncil.ca.gov/docs/staff-draft-determination-regarding-appeals-certification-consistency-california-department) that recommended findings of inconsistency with five policies in the Delta Plan. At the Council’s workshop on November 15, Staff presented its Draft Determination, and DWR followed with a presentation of its own. After questions from the Council, Appellant Groups made presentations. On behalf of Group 3, CSPA made a presentation in support of staff’s findings of inconsistency and in opposition to issues on which staff recommended denying appeals.
The proceeding before the Stewardship Council is squarely in the critical path of DWR’s efforts to construct the Delta tunnels. Nine groups of appellants showed up with well-researched and cogent arguments, and complemented one another well. They have made a difference. Not surprisingly, the nine groups represent most of the entities that have also been in the forefront of opposition in the three-year proceeding on the Delta tunnels before the State Water Resources Control Board.
“Let’s go.” “We can’t.” “Why not?” “We’re waiting for Godot.”
― Samuel Beckett, Waiting for Godot
In response to a joint written request from Governor Brown and incoming Governor Gavin Newsom, the State Water Resources Control Board on November 7, 2018 postponed a decision on adoption of increased flow requirements for the lower San Joaquin River. As proposed, the San Joaquin River Flows and Southern Delta Salinity portion of the update of the Bay-Delta Plan would require release of 40% of the unimpaired flow in the Stanislaus, Tuolumne and Merced rivers in the months of February through June.
The update of the Bay-Delta began in 2009. The last update was in 1995. The State Water Board had already postponed a decision on August 22, 2018.
The ostensible reason for the November postponement was to allow additional time for voluntary settlements that would supplant the Board’s proposed plan. Such settlements are advocated by most water users in the Bay-Delta watershed, as well as by the California Department of Natural Resources including the Department of Fish and Wildlife.
At the November 7 meeting, CSPA advocated adoption as scheduled and strongly opposed postponement, pointing out that proposed settlements would fall far short of the State Water Board’s already compromised proposed flows. CSPA also opposed the increasing politicization of the process. Others speaking in opposition of postponement included National Resources Defense Council, the Bay Institute, Golden West Women Flyfishers, and the Tuolumne River Trust.
The State Water Board has now scheduled its adoption hearing for December 12, 2018. CSPA fully expects that state resource agencies and various water users will at that time present the State Water Board with one or more outlines of wholly inadequate proposed settlements.
 Letter is posted at: https://www.waterboards.ca.gov/docs/20181106_brown_newsom_ltr.pdf
The Division of Dam Safety and Inspections in the Federal Energy Regulatory Commission (FERC) issued a letter to the California Department of Water Resources (DWR) on October 25, 2018 that requires DWR to reclassify the emergency spillway at Oroville Dam as an “auxiliary spillway.” The letter also describes the need for DWR to plan for a greater volume of flood flow at Oroville Dam than DWR had previously planned for.
Unless something changes, the likely net result is that DWR will have to greatly expand the “emergency spillway” on Oroville Dam that DWR’s contractor has been rebuilding over the last year and a half, since it almost failed in February 2017 after very limited use. DWR has expanded the concrete weir (or lip) at the top of the dam and constructed an “apron” (or “splash pad”) onto which water would spill as it goes over the lip when the reservoir is full and the main spillway cannot handle all the flow. The engineers at FERC are telling DWR that this isn’t enough. By definition, an “emergency spillway” is used so infrequently that it is acceptable for it to sustain significant damage during use. An “auxiliary spillway” is one that must be relied on in foreseeable circumstances. To avoid significant damage in use, the reclassified “auxiliary spillway” will need to be built out as a complete concrete spillway from the top of the dam to the bottom. Though the “apron” has added reinforcement near the top of the dam, water flowing over it would still pass over unreinforced rock and dirt to reach the bottom of the dam.
Over the past year and a half, DWR has reconstructed the main spillway, right next to the emergency spillway (see photos in the Report linked below on p. 2 and p. 11). The Sacramento Bee reported on September 6, 2018 that total construction costs were estimated to reach $1.1 billion. It is reasonable to estimate that the cost for completing the auxiliary spillway could easily reach another half a billion dollars.
Thirteen years ago, Friends of the River, the Sierra Club and the South Yuba River Citizens League warned FERC in a series of filings that the emergency spillway needed to be replaced by a complete lined auxiliary spillway. A year later, CSPA supported Friends of the River’s warning in a filing of its own. In a series of filings including the above-cited Report on the Oroville spillway incident of 2017, Friends of the River, CSPA and others have advocated for a formal consideration of dam safety in relicensing. According to a just-released report from the United States Government Accountability Office (GAO), FERC staff reviews dam safety during relicensing and is moving to a “risk-based” evaluation of all high-risk dams regulated by FERC. However, the GAO report suggests that FERC staff will continue the practice of not “showing its work” when it comes to public or agency comments and studies regarding dam safety.
It appears likely that filings by NGO’s in the FERC relicensing proceeding for the Oroville Facilities finally caught the eye of regulators at FERC. It is disappointing the FERC staff apparently plans to continue analysis of dam safety out of public view. However, the fact that FERC’s Division of Dam Safety and Inspections has reached what appears to be a dramatic new conclusion about the adequacy of spillways at Oroville based on a new protocol is satisfying. FERC is poised to require a crucial improvement to protect public safety and important water infrastructure.
In the world of water advocacy, persistence pays.
 CSPA, Friends of the River, the South Yuba River Citizens League, and American Whitewater describe the February 2017 Oroville spillway incident in a September 2017 report, The Oroville Dam 2017 Spillway Incident and Lessons from the Feather River Basin, previously posted at http://calsport.org/news/wp-content/uploads/Oroville_Lessons_2017_report_web-final.pdf
In an 11-0 vote on October 30, 2018, the San Francisco Board of Supervisors passed a resolution supporting the State Water Resources Control Board’s immediate update of the San Joaquin Flow portion of the Bay-Delta Plan. Introduced by Supervisor Aaron Peskin following meetings with several environmental and fishing organizations including CSPA, the resolution recognizes the need for San Francisco and its Bay Area contractors to release more water from dams to protect the lower Tuolumne River, the Sacramento-San Joaquin Delta, and San Francisco Bay.
The San Joaquin flow objectives in the plan are due to be adopted by the State Water Resources Control Board on November 7. As currently written, these objectives would require 40% of the unimpaired flow in the Stanislaus, Tuolumne and Merced rivers in the months of February-June to pass past dams on those rivers, through the Delta and into the Bay.
The resolution follows a two-year campaign with the San Francisco Public Utilities Commission, the City’s water agency, to accept the State Water Board’s flows. Led by the Tuolumne River Trust, this campaign did not move the SFPUC off a proposal to require release of less than half the flows proposed by the State Water Board. An appeal to the Board of Supervisors’ environmental values produced a more positive outcome.
Over almost a decade of advocacy, CSPA has supported flows from the lower San Joaquin River greater than 40% of the February-June unimpaired flow, with explicit exceptions for drought years. With the State Water Board poised to act, CSPA supports action by the State Water Board to adopt flow objectives without delay, and working through any refinements after adoption.
Note: On November 2, 2018, San Francisco Mayor London Breed vetoed the resolution. The Board of Supervisors will not meet again before the State Water Board’s November 7, 2018 meeting to consider the Bay-Delta Plan.
On October 1, 2018, the United States Fish and Wildlife Service wrote a letter to the Federal Energy Regulatory Commission (FERC) retracting its January 29, 2018 flow recommendations for the lower Tuolumne River (see pp. 65-74). In its October 1 do-over letter, US Fish & Wildlife completely agrees to the required flows in the lower Tuolumne River proposed by the operators of Don Pedro Reservoir, Turlock Irrigation District and Modesto Irrigation District (Districts), and jointly supported by the City and County of San Francisco.
The road to submission was not scenic. In March, 2018, and again in May, representatives of the Districts and the San Francisco Public Utilities Commission (SFPUC) made trips to Washington DC, where they and their lobbyists met with senior officials in the Trump administration. These included officials in the Department of the Interior, which includes US Fish & Wildlife.
Meanwhile, back in California, the Districts and the SFPUC initiated a series of closed-door meetings with US Fish & Wildlife. On July 20, Secretary of the Interior Ryan Zinke visited Don Pedro Reservoir with Republican Congress members Jeff Denham and Tom McClintock. Secretary Zinke made it clear where he was going when he told the press: “The federal interest is to solve the problem.” https://www.modbee.com/latest-news/article215295590.html
As described in the October 1 US Fish & Wildlife letter to FERC, “solving the problem” meant accepting the position of the Districts:
The Service proposed a set of recommendations included in the USDOI Response Letters based on studies from multiple river systems, including the Tuolumne River, successes achieved in other areas and on best available science. However, following discussions with License Applicants, the Service recognizes that the flow proposal included in the USDOI Response Letter for Don Pedro includes proposed volumes of water as a license condition that are difficult for the License Applicants to manage in the context of their FERC license without significant effects to overall water supply and operation of the Projects. For this reason, the Service proposes to focus on flow beyond the License Applicants needs that can be made available in some year types and long-term improvements to habitat that can be made to improve salmonid survival in the Tuolumne River. (October 1 letter, p. 6)
So, instead of flows based on the Service’s understanding of the “best available science,” the Service will now help the Districts manage any water that the Districts release above minimum flow requirements because the Districts don’t have space in their reservoirs to store it. The Service and the Districts call this “spill.” In case there is any failure to communicate about priorities, the October 1 letter specifies: “[Spill Management Plan] shall not interfere with the Project’s operations related to water supply management, minimum instream flow releases, flood control, and project safety.” (October 1 letter, p. 14)
The October 1 letter describes the process of developing the Service’s new position with a greater reliance on euphemism than the blunt description of the outcome:
Shortly after the USDOI Response Letters were filed, License Applicants reached out to the Service and USDOI to talk about the contents of the USDOI Response Letters. We opened a dialogue to determine if there were areas of common ground where we could reach agreement with the License Applicants and potentially provide revised recommendations to FERC. (October 1 letter, p. 1)
Right. After the Districts went to the Department of the Interior in Washington, the Districts found a more favorable agenda for “dialogue.”
These discussions have been very helpful to create meaningful dialogue between the Service and License Applicants about opportunities and constraints in providing water for multiple uses and to create consensus around the importance of habitat restoration in the lower Tuolumne River. (October 1 letter, p. 2)
Aha. A fisheries agency that substitutes “refined recommendations” based on “policy direction” (October 1 letter, p. 6) for best available science hasn’t been asked to find consensus or to engage in dialogue: it’s been told to submit.
Representatives of the San Francisco Public Utilities Commission have told staff from environmental groups that the SFPUC has been at arms’ length from some of this political maneuvering. SFPUC staff reported at the October 9, 2018 SF Public Utilities Commission meeting that it is “very actively in Washington DC with the irrigation districts.” (http://sanfrancisco.granicus.com/MediaPlayer.php?view_id=22&clip_id=31551, about minute 54). SFPUC staff was present at the closed door meetings with the Districts and US Fish & Wildlife that led up to the October 1 letter. At a certain point, one needs to ask whether being a champion of moderation, a passive witness, or a reluctant participant makes a difference in relation to a politically enabled beat-down.
This is the most political interference in a FERC licensing process that this author has seen in eighteen years as a practitioner of FERC relicensing.
Draft EIS for Yuba River Development Project Omits Key Recommendations to Improve the Lower Yuba River
The California Sportfishing Protection Alliance, as a member of the Foothills Water Network (FWN), submitted 74 pages of comments on July 30, 2018 to the Federal Energy Regulatory Commission (FERC) on the Draft Environmental Impact Statement (DEIS) for the relicensing of the Yuba River Development Project. The hydropower project features three powerhouses including New Colgate, one of the largest hydropower generators in the state. It is operated by the Yuba County Water Agency (YCWA).
FERC staff’s DEIS adopts most of the recommendations jointly agreed to and submitted by the parties to the project relicensing. FERC staff also recommends vehicular access to the North Yuba River below New Bullards Bar Dam and a plan to greatly increase the amount of large woody material in the lower Yuba River. However, the DEIS does not adopt recommendations for flows and channel improvements that were made by non-governmental organizations and federal and state fisheries agencies.
Nice lower Yuba River fish (T. Cannon)
Chris Shutes of CSPA commented: “Required flows in the lower Yuba River are needed to improve river habitat and to contribute flows into the Delta and San Francisco Bay. The flows recommended by the Foothills Water Network and two fisheries agencies [California Department of Fish & Wildlife, U.S. Fish & Wildlife Service] would meet those needs while protecting local agriculture and YCWA’s revenues.”
FWN’s comments and recommendations urge FERC to require improved river flows, floodplain restoration, monitoring for water temperature, monitoring of salmon, steelhead and sturgeon, and mitigation for cumulative environmental project effects. FWN strongly recommends that FERC approve the establishment of an Ecological Group that would provide non-governmental stakeholders a defined role in the implementation of a new FERC license. FWN also urges FERC staff to update the way it analyzes the economics of electricity sales and to improve its analysis of water sales.
The comments were signed by 14 groups, including fishing organizations, a Native American tribe, conservation organizations, and an organization that represents whitewater boating businesses.
The comments are linked here: FWN YRDP DEIS comments Final 073018
On 28 May 2018, the California Sportfishing Protection Alliance joined with the California Water Impact Network and AquAlliance (CSPA et al.) in filing a lawsuit against the California Delta Stewardship Council (Council) for amending the state’s Delta Plan to facilitate construction of two massive tunnels to divert Sacramento River water directly to Southern California. The lawsuit charges that the council violated numerous laws, including the Delta Protection Act, County of Origin Statutes, Area of Origin Protection Statutes and the California Environmental Quality Act (CEQA) in providing a preference for the tunnels over the restoration of the Delta. The Council’s action will cause enormous harm to fish, wildlife, water quality and the people who live in and depend upon the Delta.
CSPA Executive Director Bill Jennings observed that, “a seriously degraded estuary, suffering from a critical lack of flow, cannot be protected or restored by further diverting millions of acre-feet of water under the Delta for export to Southern California. The amended Delta Plan is an obituary for fisheries, not a path to restoration.
The complaint asks the court to vacate and set aside approval of the Delta Plan Amendments and certification of the Environmental Impact Report (EIR) and to issue a stay, temporary restraining order, preliminary injunction and permanent injunction prohibiting any actions by the Council to facilitate the tunnel project until the Council has fully complied with all requirements of the Delta Reform Act, CEQA and all other applicable state laws, policies and regulations.
In 2009, the Delta Reform Act established the Council and required it to develop a Delta Plan that would meet the coequal goals of protecting the Delta’s fisheries and ecosystem while promoting water supply reliability. The Council adopted a Delta Plan in 2013 and CSPA et al., among others, promptly filed a lawsuit against the Plan in Sacramento Superior Court. CSPA prevailed in 2016 when the Court invalidated the Delta Plan for failing to comply with the Delta Reform Act.
The California Department of Water Resources (DWR) approved the Delta tunnels project in 2017. The Council, dominated by Southern California members, subsequently approved new amendment to the Delta Plan in order to expedite the project in 2018 and this approval led to the current litigation. CSPA et al. is also in litigation with DWR over the 2017 approval of the tunnel project and is a major party in the current evidentiary hearing before the State Water Resources Control Board regarding DWR and U.S. Bureau of Reclamation’s request to modify their water rights permits to allow project construction.
Last week, San Joaquin Valley Republican Congressman Valadao attached an amendment to the appropriations bill for the Department of Commerce that would prohibit the National Marine Fisheries Service (NMFS) from participation in the licensing proceedings of the Don Pedro and La Grange hydroelectric projects on the Tuolumne River. The goal of the amendment is to destroy any future chance for salmon and steelhead passage on the Tuolumne River.
There was little notice of this amendment. However, in less than a day, several organizations including CSPA submitted a letter to the House Appropriations Committee opposing the amendment. On May 17, the amendment passed in committee. The bill could go to the floor of the House of Representatives within a month.
Tuolumne River Salmon; photo by Tuolumne River Trust
Here is the text of the amendment:
None of the funds made available by this Act shall be used by the Department of Commerce to prepare, finalize, implement, or enforce recommendations, conditions, or prescriptions, or reserve authority related thereto, pursuant to authorities provided to the Department of Commerce under Sections 10 and 18 of the Federal Power Act (16 U.S.C. §§ 803 and 811) as related to the Don Pedro (P-2299-082) and La Grange (P-14581-002) hydroelectric projects along the Tuolumne River, California.
In the opposition letter, CSPA and others wrote that this rider would undermine the Federal Power Act (FPA) by preventing implementation of fisheries protections under the FPA on a single river. It would substitute political opinion for the findings of recognized agency experts. It would also improperly implement a policy decision under the guise of appropriations.
FPA Section 18 allows NMFS to prescribe fish passage at hydropower facilities under certain conditions, or to reserve its authority to do so. NMFS has reserved this authority on the Tuolumne River until 2025. In addition to preventing NMFS from supporting potential future fish passage, the Valadao rider would prevent NMFS from commenting on the forthcoming Draft Environmental Impact Statement and from participating in an upcoming required meeting with staff from the Federal Energy Regulatory Commission.
In further opposition to the amendment, CSPA’s Chris Shutes and representatives from other groups spoke at the meeting of the San Francisco Public Utilities Commission on May 22. With water and power facilities of its own on the Tuolumne River, the City and County of San Francisco has been active in the licensings of the Don Pedro and La Grange projects. CSPA and others asked the San Francisco Commission to agendize this issue for its next meeting and to direct staff to prepare a resolution of opposition to this amendment.
Preventing NMFS from doing its job on the Tuolumne River licensings would be bad for the river and would undermine environmental regulation. It would set a precedent that could encourage every hydropower operator to request special legislation for its own issues. CSPA will continue to closely monitor and take action on future developments.
 The other organizations were Friends of the River, Tuolumne River Trust, Golden Gate Salmon Association, American Sportfishing Association, Golden West Women Flyfishers, and Pacific Coast Federation of Fishermen’s Association.
Chris Shutes, CSPA’s FERC Projects Director and Water Rights Advocate, gave a presentation at the 36th Annual Salmonid Restoration Federation Conference recently held in Eureka, CA. The SRF Conference is the largest salmon restoration conference in California and brings together scientists, conservationists, engineers, students and tribal members. The theme of this year’s conference was The Art and Science of Watershed Restoration.
Chris’s presentation was entitled: Creating Regulatory Process from Scratch: Lessons from Money-Losing Power Projects on Butte Creek and Other Northern California Streams. It was included in a session of multiple presentations covering the topic of Adapting Aging Infrastructure to Sustain Listed Salmonids.
Chris described how some California hydropower projects have become uneconomic given their age and the changing energy markets. As an example, PG&E decided to sell or decommission its DeSabla-Centerville Project on Butte Creek in 2017, just as the process of relicensing the Project was almost complete. The Project’s canal system brings water from the West Branch Feather River to Butte Creek. The combined flow in the creek supports the only currently viable run of Central Valley spring-run Chinook salmon.
While there is a clear process to relicense ongoing hydro projects that allows broad public participation, there is no set process to transfer or decommission hydro projects, and no clear avenues for public participation. The presentation discusses the efforts of stakeholders including resource agencies, environmental and fishing groups, local residents, water purveyors and hydropower developers to work together to advance various stakeholder goals, including the protection of salmon in Butte Creek.
Here is the complete presentation: Creating Regulatory Process CS SRF 041418
CSPA and nine other Conservation Groups filed extensive comments and recommendations January 29, 2018 for flow requirements and non-flow measures for the lower Tuolumne River. The filing is an important milestone in the multi-year licensing process of the Don Pedro and La Grange dams owned by Turlock Irrigation District and Modesto Irrigation District. The comments make environmental recommendations and discuss legal requirements that the Federal Energy Regulatory Commission (FERC) must consider in evaluating license conditions for new hydropower licenses.
In their 124-page submittal, the Conservation Groups provide a detailed flow recommendation for the lower Tuolumne River. The recommendation modifies the State Water Resources Control Board’s plan to require the release of a percent of the unimpaired flow from February through June. CSPA used a hydrological model to develop the recommendation on how FERC and the State Water Board could balance flow, irrigation and municipal water supplies, and reservoir storage. The recommendation has specific provisions for droughts. It also proposes that the City of San Francisco fund groundwater recharge facilities for the irrigation districts in order to meet the City’s flow obligations for the river. With these new facilities, the irrigation districts could maintain groundwater levels with less reliance on water-intensive flood irrigation.
The Conservation Groups’ filing also recommends non-flow measures to create floodplain habitat, fill in dredger holes, replenish spawning gravel, and place large wood in the lower Tuolumne River.
The districts have 45 days to respond to all comments filed with FERC. The next major step in the relicensing process will be FERC’s preparation of the Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA).
The Conservation Groups include CSPA, Tuolumne River Trust, Trout Unlimited, American Rivers, American Whitewater, Merced River Conservation Committee, Friends of the River, Golden West Women Flyfishers, Central Sierra Environmental Resource Center, and Tuolumne River Conservancy.
CSPA, AquAlliance and the California Water Impact Network submitted comments on January 12, 2018 on the proposed Sites Reservoir Draft Environmental Impact Report/Draft Environmental Impact Statement (DEIR/DEIS). The proposed Sites Project would create a $4 billion reservoir outside of Maxwell, Colusa County, in the Sacramento Valley. The reservoir would be built “off stream” in a valley and would store up to 1.8 million acre-feet of water. The reservoir would divert flows from the Sacramento River, mostly in winter.
CSPA finds the DEIR/DEIS is deficient for multiple reasons.
The DEIR/DEIS does not fully describe proposed Project operations, who will operate the project and to whom project operators will be held accountable. It does not analyze alternative operational scenarios or analyze their impacts. It does not analyze operations under alternative regulatory constraints, such as constraints more stringent than existing inadequate regulatory constraints for the Sacramento River and the Bay-Delta estuary.
Project proponents argue that the Project will allow greater flexibility for operation of the State Water Project (SWP) and Central Valley Project (CVP). However, the DEIR/DEIS does not describe how operators will integrate the operation of Sites Reservoir with the operation of the State Water Project and Central Valley Project. The discussion of water rights in the document is muddled and perfunctory and inspires more questions than it provides answers.
The Sites Authority has marketed its Project to the California Water Commission and others as environmentally beneficial. As stated in CSPA’s comments, “the objective opportunity to create environmental benefits does not in itself create those benefits.” Assuming there are environmental benefits to be had, they would require a clear project description, commitments and enforceability. The Sites DEIR/DEIS is several steps removed from all of these. As they stand today, the Sites Project is largely conceptual, its environmental benefits are at best aspirational, and its environmental document is deficient and must be recirculated.
On November 30, CSPA filed testimony and exhibits for the State Water Board’s hearings on the Delta Tunnels (“WaterFix”). This new testimony is for Part 2 of the hearings: impacts to fish and wildlife, recreation, and other Public Trust values. Some of the highlights are described below.
CSPA’s biologist Tom Cannon presents thirty pages of testimony on how the state and federal water projects affect fish today and how they would affect fish with the tunnels in place. He supports his testimony with 60 exhibits. Tom describes the conditions that Delta and Central Valley fish need to recover. The tweaks that WaterFix proponents propose to make to existing inadequate protections for fish aren’t even close.
CSPA’s Executive Director Bill Jennings describes what happened to fish and water quality over the last 50 years and the failure to establish enforceable measures to protect them. He discusses the collapse of Central Valley fisheries and the history of disastrous decisions by the State Water Board and the fish agencies during this collapse. The Board must define and implement a methodology to balance the public trust with other uses of water, using information it already has gathered to set the flows necessary to restore Delta fisheries.
CSPA’s advocate Chris Shutes reviews the recommendations that the fish agencies made in the Delta flow criteria proceeding in 2010. Since the fish agencies aren’t showing up in the WaterFix hearings, the State Water Board should give great weight to what those agencies said when they did. The Board needs require carryover storage numbers for Trinity, Shasta, Oroville and Folsom reservoirs, so that adequate Delta flows don’t take water away from fish upstream.
Longtime advisor to CSPA Dr. G. Fred Lee discusses how the new WaterFix diversion will reduce the amount of Sacramento River water entering the Central Delta through Turner Cut. This change will reduce the dilution of San Joaquin River water in the Central Delta and thereby adversely impact fisheries, recreation, and aesthetic aspects of water quality in the Central Delta.
Marc Del Piero, former “attorney member” of the State Water Board, relates how earlier Boards established a “formula” in water rights proceedings in order to protect public trust resources. The current Board has departed from that formula. He calls WaterFix a “‘bait and switch’ scheme that results in innocent residential customers being unknowingly compelled to pay for and subsidize the infrastructure expenses of future private developers.”
Felix Smith, former U.S. Fish & Wildlife Service biologist and whistle-blower, recalls the history of the public trust doctrine as it has applied to California water law. He concludes “Trustee agencies have an affirmative duty to manage public trust assets.” This means that the Water Board can and should impose conditions on the state and federal projects that relate not only to proposed project additions, but to existing facilities and operations.
Jerry Neuburger, past and present chair of Delta Fly Fishers, provides a personal fifty-year history of striped bass fishing in the Delta. The great fishery of his youth led to a lifelong investment in experience, boats and equipment. In 2006, Jerry took up guiding, even though the fishery was clearly in decline. Jerry tells the story of how over the last few years, much of the striper fishery and the businesses that supported it have faded into the Delta sunset.
Dan Bacher is editor of the Fish Sniffer magazine, a bait shop staple for countless anglers. Dan paints the picture of the decline of stores that carried his publication and that advertised in it. Another angler with thousands of days fishing the Delta and it tributaries, Dan describes the fishing opportunities whose loss coincided with increased Delta exports. The testimony includes a personal account of advocacy for protection of winter-run salmon.
Dan Hurley is a fourth generation member of a family in Stockton that fished the Delta commercially until 1958. Dan has written over 2000 fishing reports since 2005. In addition to his own list of lost businesses, Dan talks about how fish guiding in the Delta has become marginal or simply unsustainable. Most fish are gone. Almost all the big fish are gone. Many of the great spots of the past are buried under water hyacinth.
Dave Fries, former professor of medicinal chemistry and longtime advisor to CSPA, has sailed sailed the Delta in a sailboat over decades. He has seen worsening of water quality and wildlife habitat. In particular, Dave speaks of the toxic algae blooms and weed-choked waterways during the 2015 drought. If WaterFix goes forward, construction impacts from barges and dredges will limit boating opportunities, and large areas of wetlands will be filled with tunnel muck.
Tom Stokely, longtime Trinity River advocate, speaks of the effects on both rivers of moving Trinity River water into the Sacramento River. He also talks of how using Trinity River water to irrigate the western San Joaquin Valley leaches selenium out of the ground and into the San Joaquin River and the Delta.
In addition to CSPA witnesses and exhibits, CSPA’s partners AquAlliance and the California Water Impact Network (C-WIN) submitted testimony, and some of their witnesses will appear in the hearing in panels with CSPA witnesses. AquAlliance’s witnesses include Kit Custis (hydrogeologist speaking of groundwater effects of Delta tunnels), Barbara Vlamis (also testifying on groundwater), Jim Brobeck (speaking of Chico groundwater loss), Dr. Don Hankins (looking at the Delta and the proposed tunnels from the perspective of the Mikwo culture) and Trina Cunningham (speaking of the Maidu view of the Feather River and points downstream). C-WIN’s witnesses are economist Dr. Ed Whitelaw (testifying on how to balance the public trust), and Arne Sjovold and Aaron Budgor (joint testimony on both Delta hydrology and how the Santa Barbara extension of the State Water Project was high cost and low benefit).
Up till now, CSPA has had no financial resources to pay its witnesses. We now enter weeks of hearings that require careful attention, after which CSPA will need to develop further testimony to rebut tunnel proponents. We know we can never compete with the water contractors economically. But in this David and Goliath battle, we can, must, and do hold our own. CSPA desperately needs your check to help us remain effective. Please make a generous end-of-year contribution to CSPA today.
CSPA Delta Tunnels Part 2 Testimony Library Below
Potter Valley Project Dam Relicensing – Second Comment Letter Submitted to FERC Urging Dam Safety Considerations
In early November, California Sportfishing Protection Alliance, Friends of the River and American Whitewater filed a comment letter with FERC (Federal Energy Regulatory Commission) in response to their Scoping Document 2 for the Potter Valley Project. The letter calls for FERC to change its policy of not considering dam safety and infrastructure adequacy in relicensing. With the letter, CSPA and its partners filed The Oroville Dam 2017 Spillway Incident and Lessons from the Feather River Basin (“Oroville Report”) which bears on issues raised in the comments.
The comment letter requests that FERC convene a workshop to take input from interested entities regarding the incorporation of dam safety and infrastructure adequacy into the relicensing process, as well as how to address attendant issues relating to Critical Energy Infrastructure Information.
In response to Scoping Document 1 for the Potter Valley relicensing, CSPA, AW, and FOR, together with a number of other Conservation Groups, had commented on the need to include analysis of dam safety, infrastructure issues, and climate change in the Environmental Impact Statement that the Commission will prepare for the relicensing
Subsequently, FERC wrote in Scoping Document 2 that the Commission does not address dam safety and infrastructure adequacy in relicensing. However, the current policy as outlined in Part 12 of FERC regulations failed dramatically at Oroville, despite detailed warnings in relicensing of infrastructure inadequacy more than ten years prior to the 2017 Oroville Spillway events. The comment letter urges changes to the current inadequate policy forthwith.
Much of California’s dam and flood infrastructure is obsolete and falling apart. It needs to be fixed now, says a report entitled “The Oroville Dam Spillway Incident and Lessons from the Feather River Basin.” The authors of report are from CSPA, Friends of the River, South Yuba River Citizens League, and American Whitewater. These organizations warned more than a decade ago that the Oroville Dam’s emergency spillway was completely inadequate.
DWR still needs to build a complete emergency spillway at Oroville, say the groups. But this is only the start. The report makes dozens of recommendations for bringing existing waterworks into the 21st Century, in an extensive review of California dams, flood manuals, floodplains, and regulatory delay.
On 13 September 2017, the California Sportfishing Protection Alliance, California Water Impact Network, AquAlliance and the California Indian Water Commission challenged the legality of proposed bonds that will be used to pay for the construction of the Department of Water Resources’ (DWR) WaterFix project. The project would construct twin 35 mile-long tunnels under the Delta to divert millions of acre-feet of Sacramento River water to cities and farms in southern California. It would seriously degrade Delta water quality and threaten the survival of numerous fish species in the Central Valley.
CSPA’s answer and response to DWR’s Complaint for Validation contends that the project cannot secure all if its approvals, a precondition of issuing more than $11 billion in bonds, and that DWR is seeking to illegally shift a substantial share of the project’s costs to state taxpayers, rather than ensuring that the recipients of the water be responsible for all costs, as the law requires. A Validation Complaint is a legal maneuver that entails filing an action against virtually everyone in the state that, if successful, would eliminate all future legal challenges to the financing of the project.
The answer and response seeks a court order declaring the bonds invalid, which would prevent DWR from securing required funding for the project to go forward. A number of other public interest organizations, water agencies, municipalities and counties also joined in responding to the Validation Complaint.
In a hundred-plus page filing with the Federal Energy Regulatory Commission (FERC) on August 25, 2017, CSPA and other members of Foothills Water Network coalition filed recommendations for improving flow and habitat conditions in the lower Yuba River. The filing responds to the “Notice of Ready for Environmental Analysis,” a major milestone in the relicensing of the Yuba River Development Project, owned and operated by Yuba County Water Agency (YCWA). The proceeding has been underway for six years.
The filing describes how CSPA developed a flow proposal for the lower Yuba River based on a requirement to release a percent of unimpaired flow during the months of February through June. This approach was consistent with the State Water Board’s 2010 Delta Flow Criteria Report. The filing describes CSPA’s use of the water balance model developed by YCWA to develop this proposal for improving flows while balancing water supply needs and reservoir storage. In a separate filing on August 25, staff from the State Water Board recommends that FERC analyze the proposal CSPA developed on behalf of the Network.
Ultimately, the filing by CSPA and the Network supports a similar but differently organized flow regime proposed by the California Department of Fish and Wildlife (CDFW) and the US Fish and Wildlife Service (USFWS). Modeling shows that the CDFW/USFWS proposal would release virtually the same percent of unimpaired flow as the CSPA/Network proposal would be able to release, given the limitations of YCWA’ infrastructure to release water.
The Network’s filing also features extensive analysis and rationale for proposed improvements to the physical habitat in and along the lower Yuba River. These measures are designed to work in concert with proposed flow measures to improve rearing habitat for juvenile salmon.
The comment letter discusses a dozen-odd additional issues and also describes multiple areas in which the Network and resource agencies reached agreement with YCWA.
CSPA has joined a broad-based ad hoc coalition of entities in an August 8, 2017 letter to the Federal Energy Regulatory Commission (FERC) that requests a delay in the issuance of a new hydropower license for the Oroville Facilities Project. The signers of the letter include two elected state officials, two counties, two chambers of commerce, six towns and cities, several business groups, and six other fishing, environmental and recreational groups, plus a number of individuals. The signers of the letter are entities that were affected by the February 2017 Oroville Dam spillway incident and/or who were involved in the Oroville Dam relicensing proceeding.
In February, 2017, most of the main spillway at Oroville Dam failed, sending water cascading onto rock and dirt to the side of the spillway. A series of events then led DWR to use the dam’s “emergency spillway,” a concrete lip on the reservoir that directs spilling water onto an unlined dirt and rock hillside. Erosion on the hillside downstream of the emergency spillway threatened to undermine the concrete lip and send the top thirty feet of the full reservoir down the face of the dam all at once. Potentially, this could have flooded the City of Oroville below and cities and land downstream. In the face of this danger, approximately 188,000 people in Oroville and downstream communities in Butte County, Yuba County and Sutter County were evacuated. Reconstruction at the Oroville Facilities is now underway, but it will take at least through 2018 to complete.
The letter asks FERC to delay issuing a new license until stakeholders and the dam’s operator – the California Department of Water Resources (DWR) – can better understand the causes of the Oroville Dam spillway incident. FERC has tasked a Board of Consultants and Forensic Team with determining the cause of the spillway incident and informing the reconstruction effort. The letter’s authors state that analysis of the spillway incident may change the underlying assumptions of the pending license, and that it would not be prudent at all for FERC to issue a renewed license without the benefit of understanding the incident.
CSPA, along with several other Conservation Groups, submitted extensive comments in early August to the Federal Energy Regulatory Commission (FERC) in the just-initiated relicensing of two PG&E dams on the mainstem Eel River. Cape Horn Dam (built 1908) and Scott Dam (1922) are part of PG&E’s Potter Valley Project. The Project’s main feature is the diversion of water through a tunnel from the Eel River to the Russian River watershed. The Project’s license expires in 2022. At present, PG&E proposes to relicense the Project with no change in operations.
The Conservation Groups commented on FERC’s Scoping Document 1 (SD1) that describes the scope of the topics FERC will analyze in an Environmental Impact Statement later in the process. The groups also commented on PG&E’s Pre-Application Document, or PAD, in which PG&E presents factual information about the Project that PG&E believes to be relevant. In addition to describing shortcomings in those two documents, the Conservation Groups submitted seven requests for studies to evaluate various issues related to the Project.
The Eel River is California’s third largest watershed and flows more than 200 miles from the headwaters above Lake Pillsbury in Lake County to the ocean. Scott Dam has no fish passage facilities and thus prevents migrating salmon and steelhead from reaching the upper watershed of the mainstem Eel River. One of the major themes in the comments is that FERC must evaluate dam removal and also decommissioning of the Project.
The Conservation Groups also argue that dam safety issues are relevant to FERC’s consideration of a new Project license. However, FERC has historically not considered dam safety in relicensing proceedings. Design and problems from initial construction are known to exist at Scott Dam. PG&E would have limited ability to release water if the dam’s low-level outlet failed. At the top of the dam, PG&E must operate all but one gate by hand to regulate high flow events. Following events in Oroville in February, 2017, FERC will need to re-evaluate whether to address these and other dam safety issues in the relicensing process.
The principal driver of the Potter Valley Project is not the small and irregular amount of electrical power it produces. Rather, it is the water diverted to the Russian River through the Project powerhouse for irrigation in Potter Valley and along the Russian River downstream of Lake Mendocino. Tens of thousands of acre-feet of water are unaccounted for every year in the Russian River watershed. Conservation groups question how much Eel River water is used to supply unauthorized water diversions along the Russian River.
FERC is scheduled to issue a Scoping Document 2 by September 18, 2017. PG&E is required to file a Proposed Study Plan on the same date. A Study Plan meeting is required in October, 2017. Therefore, stay tuned for further information about this important relicensing proceeding which provides an opportunity to improve fish populations on the Eel River.
 Other groups included American Whitewater, California Trout, Friends of the Eel River, Friends of the River, Native Fish Society, and Trout Unlimited and the Redwood Empire Chapter of Trout Unlimited