CSPA in the News
Protecting the Mokelumne River benefits landowners as well as the publicMay 1, 2017 Read Online
- CSPA Talks Hydropower Relicensing at Water Agency Conference
- CSPA, FOR and Others Request Release of Information and Public Involvement at Oroville
- CSPA Submits Comments on Amendments to Central Valley Water Quality Control Plan
- Broad Coalition Says Hit the Brakes on Centennial Dam
- CSPA Submits Rebuttal Testimony in Part I of WaterFix Hearing
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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 filed extensive comments March 17, 2017 on the State Water Board’s plan for improving flows in the lower San Joaquin River and for allowing more salinity in the southern Delta during the growing season.
CSPA supports the Board’s approach of requiring the release of a percent of unimpaired flow in February-June in the Stanislaus, Tuolumne and Merced rivers. However, CSPA thinks the Board’s plan as stated will not keep enough water in rivers to restore fisheries. The percent-of-unimpaired flow approach is universally opposed by San Joaquin River water users because they divert too much water and don’t want to give it back. CSPA thinks of it as being like a person whose kidneys are failing due to blood loss: you can treat the kidneys alone in the blood-starved body (the water users call this “functional flows”) or you can put enough blood back in the system for it to heal itself.
CSPA opposes weakening the salinity standard.
Unfortunately, there are many defects in the Board’s plan as described in its “Substitute Environmental Document” or SED. CSPA describes many of these flaws, including failure to clearly define the proposed project, modeling that doesn’t line up with what the Board actually proposes to do, and an “adaptive implementation” program that pushes key decisions to other people in the future. CSPA recommends that the Board redo its modeling and analysis comparing variable values for flows, carryover reservoir storage, diversion allocations, water temperature targets, levels of south Delta exports by the state and federal water projects, level of contribution to flows by the City of San Francisco, and specific plans for droughts.
As an attachment to CSPA’s comments, biologist Tom Cannon provided recommendations for temperature targets in the lower San Joaquin River and its tributaries.
In 2005, Ron Stork of Friends of the River warned in a Motion to the Federal Energy Regulatory Commission (FERC) that the “ungated, unarmored spillway” at Oroville Dam needed to be made into a real spillway with real concrete. The term “spillway” is generous. It’s a concrete wall with the top of a huge reservoir on one side and a hillside covered with dirt on the other.
Mr. Stork and his colleagues in the Sierra Club and the South Yuba River Citizens League wrote to the Federal Energy Regulatory Commission:
A single operational use or multiple operational uses (with failure to repair any preceding or cumulative damage) of the ungated spillway could result in a loss of crest control of Oroville Dam. A loss of crest control could not only cause additional damage to project lands and facilities but also cause damages and threaten lives in the protected floodplain downstream. An unarmored spillway is not in conformance with current FERC engineering regulations.
It happened one night. That night was February 12, 2017. Water amounting to 5% of the rated capacity of this “auxiliary” or “emergency” spillway passed over it. The precise scenario Mr. Stork and colleagues described in 2005 appeared imminent. The residents of Oroville, Yuba City, Marysville and other areas along the lower Feather River had to pack up and go with almost no advance warning.
Flashback to 2005. As succinctly described in a February 12, 2017 article in the San Jose Mercury News, Mr. Stork was blown off by the Department of Water Resources, the State Water Contractors and their attorney, the Metropolitan Water District [of southern California] and their attorney, and the Federal Energy Regulatory Commission.
On February 13, 2017, FERC ordered an investigation. Meanwhile, Jeff Kightlinger, general manager of Metropolitan Water District, told the Sacramento Bee he was right the first time. His agency had not been cheaping out in arguing against a real spillway: “‘On that issue, we did not say it was a cost issue,’ Kightlinger said Monday. ‘We said that was an issue that needs to be decided in the appropriate forum.’”
This is supposed to make it okay. To borrow from Franz Kafka, Mr. Stork knocked at the wrong door in the castle. He took his issue to the wrong bureaucracy.
This is life before FERC. The argument is not that something is a bad idea. It’s that it’s someone else’s problem. Many of the FERC license holders and the consultants and attorneys who work for them have this cynical game down to a science: the “best available science” of keeping evidence out of the record. Fighting back takes time and patience and incredible tenacity. And often, it takes more than a decade.
Ron Stork was the undisputed leader of advocacy on the Oroville auxiliary spillway. CSPA was there behind him. In CSPA’s 2006 Motion to Intervene and Comments on the Oroville DEIS, CSPA wrote:
The DEIS takes a minimalist approach to flood control issues, dismissing them as an issue not appropriately addressed in relicensing. This pushes discussion of necessary modifications to the auxiliary spillway on Oroville Dam to a future which will likely only happen in the event of a disaster.
We would rather have been wrong. We would also rather have been listened to and not chased out of the discussion based on process.
Dam owners have a responsibility to the public that goes beyond meeting “regulatory constraints.” Doing the responsible thing is not just for regulators to say. Limiting or reducing constraints is not a win. Today, for the moment, 180,000 people have had their lives turned upside down, and they are fortunate that so far it wasn’t worse. In the best of cases, they will be looking over their shoulders till July.
By Chris Shutes (CSPA) and Dave Steindorf (American Whitewater)
In a surprise move, PG&E announced on February 2, 2017 that it was withdrawing its application to relicense the DeSabla – Centerville Hydroelectric Project on Butte Creek and the West Branch Feather River. The reach of Butte Creek affected by the Project is home to the only remaining viable population of spring-run Chinook salmon in California’s Central Valley.
Spring-run salmon in Butte Creek have seen a resurgence over the last twenty years. A substantial part of this was due to investments and improvements downstream of the Project. In addition, since 2003, PG&E and state and federal resource agencies have greatly improved the management of the Project for the fish.
From 2004 to 2009, PG&E went through a formal relicensing process with the Federal Energy Regulatory Commission (FERC) to relicense the Project. In 2016, the State Water Board issued a Water Quality Certification needed for a new license. A new license from FERC was widely expected in 2017.
In a DeSabla – Centerville fact sheet and map that PG&E distributed with its announcement, PG&E describes the project as follows:
The Project diverts a portion of the natural flow of water from Butte Creek and West Branch of the Feather River (WBFR) into canals that carry the water for use in hydroelectric powerhouses. Once water is run through the powerhouses it is ultimately released to Butte Creek. During the summer, the natural flow of the WBFR is augmented by water releases from Round Valley and Philbrook reservoirs. Project diversions have provided additional flow to Butte Creek for more than 100 years. One of the beneficiaries of this additional flow has been the aquatic community in Butte Creek, including Central Valley spring-run Chinook salmon.
While it is true that water from the Project augmented flows below Centerville Powerhouse for 100 years, it is only since 1980 that the Project benefited fish in the eight miles of Butte Creek between DeSabla Powerhouse and Centerville (see map). The 2016 Water Quality Certification requires all the Butte Creek water and the imported water to remain in Butte Creek once it exits DeSabla Powerhouse.
The DeSabla – Centerville Project facilities are built around infrastructure that dates to 1900 and in some cases before. Commissioned in 1900, Centerville Powerhouse has been offline since 2011, and ran only partially for the five years previous to that. To function at all, it would need a complete rebuild. The estimated cost to rebuild was $39 Million in the mid-1990’s; it is almost certainly now double that, or more. DeSabla Powerhouse, nine miles upstream of Centerville, is relatively modern and in good condition, but the small reservoir that feeds it allows water to heat up too much passing through.
In California’s modern energy market, the capability to regulate the grid gives hydropower its greatest value. But unlike many other hydropower projects, powerhouses in the DeSabla – Centerville Project run at a constant rate, day and night, regardless of when power demand is high or low. They also have no ability to help regulate the power grid, especially to respond to short-term changes in supply from intermittent renewable sources like wind and solar.
The real value of the Project is the water it imports from the West Branch Feather River to Butte Creek: value for the fish and value for the farms that use the water further downstream. The fish can’t pay for this service; the farms have never been asked to pay and never have.
PG&E’s decision not to relicense the Project does not lead to a path that is simple. In the next few months, moving into the next few years, PG&E will need to establish a stakeholder engagement process to help determine the Project’s long-term disposition. PG&E will need to engage resource agencies, downstream water rights holders, interested NGO’s, and local residents. The DeSabla – Centerville Project has been part of the community for over a century. Its resource values are enormous. The water that it supplies downstream is essential to the irrigation of thousands of acres of crops.
On September 19, 2015, PG&E bought an advertisement on the editorial page of the San Francisco Chronicle entitled: “Of Bees, Birds and Chillin’ Chinook: All in a Sustainable Day at PG&E.” Mr. Tony Earley, CEO of PG&E at the time, started the ad by extolling PG&E’s work to keep salmon in Butte Creek cool. His major theme stated: “The days are long past when energy companies could afford to think of their mission as separate from conservation, sustainability and good management of our natural resources. Our view must be for the long term. That’s why we live our commitment to conservation through a number of programs.”
We look forward to the opportunity to help PG&E maintain this well-stated goal.
The Federal Energy Regulatory Commission (FERC) has dismissed a petition by Idaho Power Company that sought to limit the right of states to enforce water quality requirements when FERC relicenses hydropower projects. In a January 2 post, we described the circumstances of the case and provided the intervention and Motion to Dismiss of CSPA and other conservation groups.
Following its January 19, 2017 meeting, FERC issued an Order that explicitly affirms the limitations that the federal Clean Water Act places on the Commission. The Order states in part: “[T]he Commission has no authority to review or reject conditions of a state’s water quality certification. Nor would we have any authority to resolve conflicts between the states’ certifications, if they exist, or conflicts between the states’ certification conditions and any mandatory fishway prescriptions or other mandatory conditions.”
One of CSPA’s many strategies in the past several years has been to defend the federal Clean Water Act from attack. Much of this defense has been in the context the Federal Energy Regulatory Commission’s (FERC) relicensing of hydropower projects. Section 401 of the Clean Water Act requires that an affected state certify that certain actions (like a FERC relicensing) conform to state water quality laws. In California, the State Water Board has the authority over these certifications.
Recent federal Energy legislation, pushed heavily by PG&E, would allow the Federal Energy Regulatory Commission (FERC) to reject a state’s decisions. Since FERC consistently make less protective decisions about rivers affected by hydropower than the State Water Board, this would be a bad change in law. CSPA and hundreds of other conservation groups fought this change in Congress for a year and a half, and so far we have defeated it.
In late November, 2016, Idaho Power Company filed a petition asking FERC to rule that the Federal Power Act preempts state law in a case in Oregon. The case involved the relicensing of the Hells Canyon hydroelectric project on the Snake River, where the Snake is the border between Idaho and Oregon. In CSPA’s view, this petition was not really about federal preemption of a specific state law. Rather, it was a collateral sneak attack on the state of Oregon’s exercise of Section 401 of the federal Clean Water Act. An adverse ruling would give FERC the power over the states that PG&E is trying to create in its Energy legislation.
CSPA decided that this attack was significant enough to warrant action, even though it was out of state. Working with two national groups, a state river organization from Idaho, an Oregon legal advocacy group, and two Snake River watershed groups, CSPA assembled a motion to dismiss Idaho Power’s petition. The motion was filed on December 30, 2016.
On December 16, 2016, CSPA’s Bill Jennings and Chris Shutes made presentations to the State Water Board regarding the need to increase flow from the San Joaquin River into the Delta. The hearings held in Stockton are part of Phase I of the Water Board’s update of the Bay-Delta Plan.
Bill Jennings discussed five major flaws in the “Substitute Environmental Document” (SED) that the Board is using to evaluate changes to the Plan. 1) The SED does not include the mainstem San Joaquin in its analysis, and does not propose requiring equitable flow out of Friant Dam. 2) The SED makes no defensible scientific justification for recommending that 40% of February-June unimpaired flow be released from the Stanislaus, Tuolumne and Merced rivers; more is needed. 3) The SED contains no analysis of how the Board will balance resources and offers no quantification of the benefits of improved flow. 4) The SED’s recommendation to weaken south Delta salinity standards relies on an outdated report with identified errors in analyzing impacts to Delta agriculture, and the SED does not analyze impacts to fish and aquatic vegetation that would result from weakening the standards. 5) The SED does not describe how Plan’s the salmon-doubling goal, which has been law for over twenty years as salmon populations in the San Joaquin collapsed, will be enforced.
Chris Shutes discussed four major points in his presentation. 1) California and the San Joaquin tributaries in particular have an unsustainable agricultural business model founded on the overallocation of water. 2) The urban model passed by the legislature in 2009, 20% reduction in urban water use by the year 2020, is a better model for agriculture than the existing boom or bust cycle that the SED accepts. 3) The SED uses modeling unrealistically to avoid defining the proposed project and its impacts. 4) San Francisco and the Bay Area have to do their fair share in improving flows in the Tuolumne River. Following Chris’s presentation, Peter Drekmeier of the Tuolumne River Trust provided further discussion of San Francisco’s obligation and analysis of how San Francisco has exaggerated impacts to the Bay Area of increasing Tuolumne River flow.
The complete video of the December 16, 2016 hearing can be seen at:
Bill Jennings speaks from 5:50 to 5:59. Chris Shutes speaks from 2:12:50 to 2:19.
Peter Drekmeier’s presentation on impacts to the Bay Area can be seen at 2:19 of the video. A related video from the Tuolumne River Trust can be seen at: https://www.youtube.com/watch?v=FJQ5RhdU6vY&feature=youtu.be
On December 1, 2016, CSPA provided testimony before the State Water Resources Control Board in the hearing on the proposed Delta tunnels, known inaccurately as the “California WaterFix.” CSPA joined in presenting testimony with witnesses from the California Water Impact Network and AquAlliance.
The hearing specifically addresses, in the current phase, whether allowing the State Water Project and the Central Valley Project to construct three new points of diversion in the north Delta would injure legal users of water.
Attorney Michael Jackson represented all three organizations and made a half hour opening statement.
Chris Shutes testified for CSPA that the proposed change would in effect create a new, mega-water right for the Department of Water Resources and the Bureau of Reclamation, and would lead these agencies to operate project reservoirs more aggressively. This would increase the risk that the projects would run out of water for multiple uses, including water deliveries.
Tom Cannon testified that the standard that project proponents proposed to meet – compliance with the existing Delta flow and water quality standards – is likely to change and in any case does not prove that the project won’t injure legal users of water.
Dr. G. Fred Lee testified that diverting water north of the Delta would reduce the inflow of water from the Sacramento River, increasing the pollutant load in the Delta.
Bill Jennings testified that the proponents had not shown the effects of their project on CSPA’s land at Collinsville, that the project would degrade Delta water quality, and that the proponents’ testimony contained numerous flaws.
A video of the testimony of CSPA and its associates, including cross-examination, is available at http://www.waterboards.ca.gov/board_info/media/dec2016/cal_waterfix_hearing120116.shtml
While the presentation of testimony and cross-examination lasted one day, this one day represents many weeks of preparation and monitoring of the proceeding. CSPA’s experts in this process are largely, to date, unpaid for this enormous effort. Please consider an end-of-year donation to help CSPA beat the tunnels.
On November 17, 2016, CSPA’s Water Rights Advocate Chris Shutes joined a panel discussion on the proposed Sites Reservoir. The panel was held at a conference in Chico produced by the north state non-profit AquAlliance, and also featured Jim Watson of the Sites Joint Authority and Steve Evans of Friends of the River.
If constructed, Sites would flood the Antelope Valley west of Colusa and would be filled with water diverted from the Sacramento River. CSPA’s presentation points out that many impacts of such a facility would depend on how it was operated, which is unknown at present. So although some of the advertised benefits could come to pass, it is also likely that the reservoir would worsen conditions for fish. At the top of the list of probable impacts is reduced outflow from the Delta: CSPA’s presentation shows that if both Sites Reservoir and the proposed Delta tunnels had been in place in 2016, up to half of the “excess” outflow from the Delta would never have reached San Francisco Bay.
CSPA and allied groups in the Foothills Water Network (FWN) filed an extensive protest of Nevada Irrigation District’s (NID) application to construct a large new dam on the Bear River near Colfax. FWN protested the application for “Centennial Reservoir” on October 25, 2016.
In proposing Centennial Reservoir, NID has dusted off a 90-year-old concept and gussied it up with a one-dimensional application of climate change science to justify building an expensive reservoir that it doesn’t need and can’t pay for without state or ratepayer subsidy.
In the protest, FWN calls out NID’s high water use and inefficient infrastructure; the lack of water in the Bear River to support NID’s “county of origin” application and NID’s prospective unauthorized reliance on Yuba River water; NID’s efforts to bully the Bureau of Land Management out of the way; and NID’s apparent end-around past licensing hydropower facilities at the proposed new dam. FWN also protests a long list of negative environmental impacts, including all those attaching to inundation of six miles of river; reduction of high flows in the lower-most sections of the Bear River that provide low velocity juvenile rearing habitat for salmon, steelhead and sturgeon; and impacts of reducing unregulated flow from the Bear River into the Feather River, the Sacramento River, the Delta, and San Francisco Bay.
If Nevada Irrigation District perseveres with its Bear River folly, this battle will be protracted.
CSPA and Friends of the River (FOR) have filed an amicus brief arguing that the procedures of state law are not preempted by federal law in California’s application of the federal Clean Water Act. The brief argues in favor of the state’s procedures for issuing a water quality certification for FERC hydropower licensing, including the requirement that the state apply the California Environmental Quality Act, or CEQA.
FOR and CSPA filed the brief on October 19, 2016 with the State Court of Appeals, Third Appellate District, in support of a position against federal preemption taken by Butte and Plumas counties in their ongoing litigation against the Department of Water Resources.
For most folks, this likely seems way “inside baseball.” For those of us in the trenches of hydropower relicensing, an adverse ruling would mean that the State Water Board’s ability to check to power of the Federal Energy Regulatory Commission could be severely diminished or even eliminated. Weakening the authority of the State Water Board in these matters is something that the hydropower industry (including PG&E) has been aggressively pushing through federal legislation for well over a year: it’s that important.
The brief was authored by FOR’s Senior Counsel Bob Wright, FOR’s legal intern Brittany Iles, FOR’s Senior Policy Staff Ron Stork, and CSPA’s FERC Projects Director Chris Shutes. CSPA is grateful to FOR for its excellent legal work and for Mr. Wright’s representation of CSPA in this matter.
Mike McKenzie, plier of Delta waters for striped bass over many decades, moved on to purer waters on September 25. Striper Mike was well known as a superb striper fisherman, but fished for all kinds of fish all over California and neighboring states during his long lifetime.
Striper Mike came to fish conservation from the hands-on direction. Mike was a member of the Department of Fish and Game’s Striped Bass Stamp Fund Committee in the 90’s and early 2000’s. More recently, Mike was relentless in opposing the efforts of water agencies to weaken protections for stripers: he raised money for successful litigation that beat back an attempt to blame stripers for the decline of other fish, and he helped organize anglers in two major efforts to stop the Fish and Game Commission from weakening fishing regulations that protect stripers. Mike was a long-time supporter of CSPA, and handled membership and donations to the organization for several years.
Mike grew up in Contra Costa County during a time when there were still trout in some of the small streams in the Oakland-Berkeley hills. He loved to talk about fishing these streams as a boy, as well as about trips to Sierra trout streams.
Mike was an industrial electrician during his career and a blue collar guy in perspective and temperament. He believed in first-hand experience, he lived through a whole lot of it, and he made the most of it. Mike came from what is unfortunately becoming a passing epoch in which a blue collar guy could make a good living, buy a good boat, and have time to fish in it. And there was an awful lot of good fishing in California in the sixties and seventies.
With Mike’s death, anglers and fish lovers lose a piece of what some call institutional memory, but what is better thought of as living history. We’ll all miss him. Those of us at CSPA will all try a little harder because of him, and, if we have any sense, we’ll all fish a little bit more often.
Additional testimonials and remembrances about Mike are on Dan Blanton’s bulletin board, http://www.danblanton.com/bulletin.php
CSPA is a formal protestant and party of record in the continuing battle over the Department of Water Resources (DWR) and U.S. Bureau of Reclamation’s (USBR) scheme to construct twin tunnels to divert the Sacramento River under the Delta to facilitate water deliveries to southern California that is now before the State Water Resource Control Board (State Board). Part IA & B, of the evidentiary hearing, is scheduled to last for 55 days and is focused on injury to existing legal users of water. Part II is scheduled for next year and will focus on harm to fisheries and public trust resources.
The concept that you can take millions of acre-feet of additional water from an estuary that has already been deprived of more than half its historical flow and not cause harm to existing individuals, fisheries and other public trust resources that depend on water quantity and water quality is, on its face, absurd. CSPA’s attorney Mike Jackson and FERC Projects Director and Water Rights Advocate Chris Shutes have relentlessly cross-examined DWR/USBR witnesses in Part IA of the hearing and exposed many of their distortions, misstatements and flaws in their direct testimony.
CSPA has riparian water rights at its property in Collinsville, near the junction of the Sacramento and San Joaquin Rivers. For Part IB, which will begin on 20 October 2016, CSPA has submitted testimony and supporting exhibits that establishes that it and other legal users of water will be grievously harmed by the WaterFix project. Specifically, CSPA’s Executive Director Bill Jennings, Chris Shutes, water quality consultant Dr. G. Fred Lee and fisheries biologist Tom Cannon provided extensive sworn testimony on fundamental flaws in DWR/USBR’s Case-in-Chief and the extent of injury that legal water users in the Delta will suffer should WaterFix be approved.
On Tuesday, August 2, 2016, the State Water Resources Control Board took an important action to protect the spring-run Chinook salmon in Butte Creek. Butte Creek contains the only run of spring-run Chinook in the Central Valley that is considered “viable.” CSPA has been working to protect this keystone run of fish since 2003 and before.
In acting on August 2, the State Board adopted a final Water Quality Certification for the relicensing of PG&E’s DeSabla – Centerville Hydroelectric Project. The final Certification was issued over objections made by PG&E a year ago in a “Petition for Reconsideration” of an earlier version of the Certification. The State Board adopted only a few of PG&E’s objections.
The DeSabla – Centerville Project brings water from the West Branch Feather River over to Butte Creek, providing additional cool water to support Butte Creek’s salmon. Historically, the project also diverted water out of the salmon-holding reach Butte Creek, leaving too little water in the creek during the summer to safely support the salmon. With the Certification, the West Branch water will continue to flow to Butte Creek, but the diversion of water out of the salmon-holding reach of Butte Creek will be discontinued.
After many years of advocacy by CSPA and Friends of Butte Creek, steadfast action by staff from the State Board, and recognition that rebuilding a non-functional 100-year old powerhouse isn’t worth the money, PG&E has announced its intention to decommission the portion of the project that depends on diverting water away from the salmon. Decommissioning will begin as soon as the Federal Energy Regulatory Commission issues a new license for the project. The final prerequisite to license issuance by FERC is a Biological Opinion from the National Marine Fisheries Service.
In 2008 and 2009, CSPA made the case to FERC and the resource agencies for keeping as much cool water as possible in the salmon-holding reach of Butte Creek. While FERC ignored our arguments, the State Board took them to heart and even cites them in its Water Quality Certification. By law, FERC must include the Certification in the new hydropower license for the project.
This is a major, long-awaited victory for CSPA, which was the Conservation Group lead for relicensing this hydroelectric project. It is an even greater victory for the spring-run Chinook salmon in Butte Creek.
Link to State Board website where final Certification will be posted: http://www.swrcb.ca.gov/waterrights/water_issues/programs/ water_quality_cert/desabla_ferc803.shtml
CSPA filed objections on July 12 to testimony and exhibits that the Bureau of Reclamation and the Department of Water Resources (collectively, “proponents”) submitted in support of their “WaterFix” effort to construct tunnels under the Delta in order to move water from northern California to points south.
CSPA’s filing to the State Water Resources Control Board was joined by CSPA’s partners California Water Impact Network and AquAlliance. In an unusual confluence of interests and perspectives, numerous water users as well as other fisheries and environmental interests filed objections that are either similar or complementary. If upheld, the objections would exclude large parts or even all of the proponents’ case.
CSPA seeks to exclude submitted evidence on a broad range of legal grounds, which include:
- The proponents have not described the reservoir operations or the operating rules that their modeling simulates. Therefore, any claims in testimony about reservoir operations and their effect on other users of water lack foundation.
- The models on which most of the testimony is based have not been calibrated or validated.
- The proponents’ technical experts inappropriately offer legal opinions.
- Testimony relating to collaborative science and adaptive management is predicated upon speculation, conceptual frameworks, incomplete draft documents and uncertain future decision-making.
- The testimony of many witnesses is “me too” or “and I helped,” and such witnesses should not be allowed to answer questions regarding the written testimony of other witnesses.
Unless the State Board has an epiphany and pulls the plug, hearings on the tunnels are scheduled to begin on July 26. They are likely to go on for well over a year.
State Water Resources Control Board’s WaterFix webpage: http://www.waterboards.ca.gov/waterrights/water_issues/ programs/bay_delta/california_waterfix/water_right_petition.shtml