CSPA in the News
Flood of lawsuits filed in effort to stop governor’s tunnels schemeAug 21, 2017 Read Online
- Report on Oroville Describes Urgent Dam Safety and Flood Lessons
- CSPA and Coalition Recommend Flows and Habitat for Lower Yuba River
- Oroville Dam Relicensing – Letter to FERC Requests Delay in New License
- Potter Valley Project Dam Relicensing Begins
- CSPA Joins in Pattern & Practice Lawsuit: State & Regional Water Boards Fail to Protect Water from Agricultural Pollution
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Much of California’s dam and flood infrastructure is obsolete and falling apart.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.
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
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.