CSPA and a coalition of environmental and fishing groups filed extensive comments and recommendations on July 22 in the Federal Energy Regulatory Commission’s relicensing of the Merced River Project on the Merced River. The filing makes recommendations for flows in the lower Merced River, fish passage, gravel augmentation, placement of large wood, stocking of fish with native genetics, and monitoring and consultation. The comments acknowledge agreements with licensee Merced Irrigation District for recreational improvements.
Following the approach of the State Water Resources Control Board, CSPA and allied “Conservation Groups” propose that Merced Irrigation District release to the lower river 60% of the February – June inflow to Lake McClure, the Project’s storage reservoir. The Conservation Groups modify the Board’s approach in drier years, reducing the number of months the percent-of-unimpaired requirement would be applied; in Critically Dry years, minimum flows and an additional “block of water” would replace the percent-of-unimpaired approach to maintain basic flow conditions, preserve reservoir storage, and provide flow pulses to move salmon out of the river. Conservation Groups provide output from the licensee’s water balance model to show that water the proposed approach is sufficient if irrigation diversions from the Merced River are reduced. The filing explains:
“Merced ID and other water purveyors in the San Joaquin River and elsewhere have argued that using a percent-of-unimpaired flow in any year is infeasible because of water shortage and depleted storage (with attendant water temperature impacts) in Critically Dry years and in dry-year sequences. Reduction of baseline diversions to restore balance to the Merced River’s beneficial uses, combined with reasonable off-ramps for flow requirements in Critically Dry years (including dry-year sequences), cuts through this tedious hyperbole.”
Comments Appendix on Gravel Model Output
CSPA and a coalition of environmental and fishing groups filed comments July 22 on scoping for the licensing of La Grange Dam and Powerhouse on the Tuolumne River. The Conservation Groups on the filing also submitted study requests asking that Turlock Irrigation District and Modesto Irrigation District be required to conduct two studies relating to reintroduction salmon and steelhead in the Tuolumne River upstream of Don Pedro Dam: a study of habitat suitability, and a study of engineering options to get the fish to suitable habitat.
The licensing of the La Grange Project was required by the Federal Energy Regulatory Commission in response to a letter from the National Marine Fisheries Service (NMFS) pointing out that Turlock Irrigation District was operating a powerhouse without a FERC license. Both NMFS and several conservation groups filed documents and evidence in support of licensing. The requirement to license is being currently being litigated; CSPA is an intervenor in the litigation. In the meantime, the licensing is proceeding.
Comments Habitat Study Request Engineering Study Request
On Tuesday, 29 July 2014, at 11:30 am, CSPA, Restore the Delta, and a coalition of commercial and recreational fishing, environmental, tribal and environmental justice organizations are staging a rally at the West Steps of the State Capitol. The rally to Save the Delta Stop the Tunnels coincides with the end of the BDCP comment period, a critical time to show our united opposition to the Governor’s Water Tunnels. Please join us to make this rally the biggest one yet.
What: SAVE THE DELTA STOP THE TUNNELS RALLY
Where: State Capitol, West Steps
10th Street and Capitol St
Sacramento, CA 95811
When: Tuesday, July 29, 2014 at 11:30 AM
On 11 July 2014, Judge Lawrence J. O’Neill, of the U.S. District Court in Fresno California, denied a motion for preliminary injunction to stop the U.S. Bureau of Reclamation (USBR) from transferring water through the south Delta export pumps to the San Luis & Delta-Mendota Water Authority (SLDMWA). The motion for preliminary injunction was filed by the California Sportfishing Protection Alliance (CSPA) and AquAlliance and alleged that the environmental assessment (EA) was seriously flawed and that the transfers posed an eminent threat to threatened Delta smelt.
The injunction request pointed out that the EA failed to consider the relaxed flow and water quality standards recently ordered by the State Water Board, actual outflows were lower than represented and that Delta smelt were being drawn into the Delta and exposed to lethal water temperatures. USBR and SLDMWA denied that Delta smelt were in the Delta and referred to the U.S. Fish & Wildlife Service’s (USFWS) Delta smelt Biological Opinion that provides no protection for smelt in July because smelt are supposed to be in Suisun Bay and not in the Delta. The decision was predicated on “agency deference,” with Judge O’Neill writing, “Courts should defer to the agency on matters within the agency’s expertise unless the agency has completely failed to address a factor that was essential to making an informed decision.”
CSPA Executive Director, Bill Jennings, said, “We’re disappointed with the decision and will consider next steps. The ruling is contrary to the facts: Delta smelt abundance is at an historic low, Delta smelt are presently in the Delta, USBR’s alleged outflow numbers are seriously exaggerated and the species is at a severe risk of extinction.” Jennings added, “The USFWS, USBR and SLDMWA have escorted Delta smelt to the scaffold and the judge signed the warrant. We did what we could to prevent disaster.”
An abundance Index of Delta smelt showing the historically low population, the CDFW’s late June and early July 20mm Delta smelt surveys since 1996 demonstrating that Delta smelt are actually in the Delta during this period in all but the wettest years and a comparison of USBR’s alleged Delta outflow with actual outflow monitoring from USGS’s state-of-the-art flow gages is attached, titled Delta Smelt on the Scaffold.
CSPA Press Release Delta Smelt on the Scaffold Court Decision
On 7 July 2014, CSPA filed a lawsuit against Northern Recycling & Waste for violations of the substantive and procedural requirements of the federal Clean Water Act and California’s General Industrial Stormwater Permit. Northern Recycling & Waste operates a recycling facility and landfill in Paradise California that discharges polluted stormwater to channels that flow into Clear Creek, which in turn discharges to the Feather River and ultimately into the Sacramento-San Joaquin Delta.
The complaint alleges that Northern Recycling & Waste discharged pollutants that exceed applicable standards and failed: to prepare an adequate Stormwater Pollution Prevention Plan, install required control measures to reduce or prevent pollutants from entering waterways, implement an adequate monitoring and reporting program and file true and correct annual reports.
The complaint asks the court to declare Northern Recycling & Waste to be in violation of the Clean Water Act, enjoin defendant from further violating permit requirements, require defendant to restore the quality of waters impaired by their activities, order defendant to pay civil penalties for each day of violation and award CSPA the costs of bringing the complaint. Jackson & Tuerck and the Law Offices of Andrew Packard are representing CSPA in this matter.
On 30 June 2014, CSPA and a broad coalition of environmental, fishing and tribal organizations submitted comments to the Central Valley Regional Water Quality Control Board (Regional Board) regarding the proposed Waste Discharge Requirements (WDRs) for the Grasslands Bypass Project (GBP). The WDRs regulate the discharge of selenium and other pollutants exceeding state and federal water quality standards into Mud Slough and the San Joaquin River from thousands of acres of farmland on the west side of the river.
The letter states that the proposed WDRs fail to protect water quality and beneficial uses, contain grossly inadequate monitoring requirements and do not comply with required mitigation measures contained in the final EIR/S for the 2009 Use Agreement and the U.S. Fish and Wildlife Service’s Biological Opinion for the GBP. The letter further states that GBP’s drainage should be regulated by an NPDES permit, pursuant to the federal Clean Water Act and requests that the Regional Board take the proposed order back to the drawing board and reissue an order that is protective of water quality and complies with the law.
Coalition Comment Letter
On 1 July 2014, CSPA sent a Notice of Intent to Pacific Coast Recycling for violations of the substantive and procedural requirements of the federal Clean Water Act and California’s General Industrial Stormwater Permit. Pacific Coast Recycling operates a one-acre recycling facility and landfill in Gilroy California that discharges polluted stormwater to the City of Gilroy’s municipal storm sewer system which conveys stormwater to Llagas Creek, which in turn flows into the Pajaro River and ultimately into Monterey Bay.
In addition to the discharge of pollutants including aluminum, iron, aluminum, copper, lead, chemical oxygen demand and total suspended solids that exceed applicable standards, Pacific Coast Recycling failed to: 1) prepare an adequate Stormwater Pollution Prevention Plan, 2) install required control measures to reduce or prevent pollutants from entering waterways 3) implement an adequate monitoring and reporting program and 4) file true and correct annual reports.
Pursuant to the citizen-suit provisions of the federal Clean Water Act, CSPA is required to send a potential defendant a notice letter informing them of the specific violations that have been identified. The U.S. EPA, U.S. Department of Justice, state Attorney General and the Regional Water Quality Board are copied and, if the agencies fail to initiate enforcement actions within 60 days, CSPA is free to file a lawsuit against the discharger. CSPA has offered to meet with Pacific Coast Recycling to see if the matter can be resolved prior to litigation. The Law Offices of Andrew Packard is representing CSPA in this matter.
On 23 June 2014, CSPA filed a lawsuit against Olam West Coast, Inc. for violations of the federal Clean Water Act and California’s General Industrial Stormwater Permit. Olam operates a 46-acre industrial facility in Gilroy that manufactures and distributes of onion and garlic products. The facility discharges pollutants into Llagas Creek, which flows to the Pajaro River and ultimately Monterey Bay.
In addition to the discharge of pollutants that exceed applicable standards, Olam failed to prepare an adequate Stormwater Pollution Prevention Plan, develop an adequate monitoring program and implement measures to reduce or prevent pollutants from entering waterways.
The action asks the court to: 1) declare Olam to be in violation of the Clean Water Act, 2) enjoin defendant from further violating the substantive and procedural requirements of the permit, 3) require defendant to restore the quality of waters impaired by their activities, 4) order Olam pay civil penalties for each day of violation and 5) award CSPA the costs of bringing the complaint. The Law Offices of Andrew Packard is representing CSPA in this matter.
The hydropower licensing of the La Grange Project on the Tuolumne River has begun. The licensing was ordered by the Federal Energy Regulatory Commission (FERC) after the Conservation Groups including CSPA and the National Marine Fisheries Service submitted evidence that La Grange Powerhouse is subject to FERC’s jurisdiction.
FERC held scoping meetings for the licensing on June 18. CSPA gave comments in support of studies of fish passage past La Grange Dam, as well as past Don Pedro Dam and Don Pedro Reservoir. FERC previously denied study requests concerning passage because it considered La Grange Dam only as an irrigation facility, not a power producing facility, and FERC therefore claimed it had no jurisdiction. While CSPA and others disputed FERC’s earlier study denial, the new licensing process leaves no grounds for disputing that study of fish passage and study of reintroduction of salmon to the upper Tuolumne River is appropriate.
CSPA Oral Scoping Comments
On 13 June 2014, CSPA and AquAlliance filed a motion in federal District Court for a preliminary injunction to restrain and enjoin the U.S. Bureau of Reclamation (USBR) from carrying out or approving the transfer of up to 175,226 acre-feet of water from the Sacramento Valley through the Delta to the San Luis Delta Mendota Water Authority in the San Joaquin Valley. A hearing in the matter is scheduled for 10 July 2014. The initial lawsuit was filed on 11 June 2014 and the water transfers are scheduled to begin in early July.
The USBR failed to legally comply with the National Environmental Policy Act or the Administrative Procedures Act before deciding to carry out the water transfers. Specifically, the USBR failed to consider new information, including: impacts resulting from the State Water Resources Control Board’s (SWRCB) relaxation of Delta water quality and flow standards and the egregiously flawed estimates of Delta outflow by project proponents.
Together, these actions will draw Delta smelt and their critical low salinity zone habitat further into the Delta where the smelt, already poised on the brink of extinction, will be exposed to lethal water temperatures and entrainment in export pumps. A preliminary injunction is necessary to prevent irreparable harm and possible extinction to threatened Delta smelt. The Law Offices of Thomas N. Lippe APC and Lozeau Drury LLP are representing CSPA and AquAlliance in this matter.
Brief in Support of Preliminary Injunction Motion for Preliminary Injunction
On 13 June 2014, CSPA and a broad coalition of environmental and fishing groups submitted comments on the U.S. Environmental Protection Agency’s draft aquatic life ambient water quality criteria for selenium in freshwater. The comments quote from previous scientific reviews and assert that the proposed criteria, based upon whole-body fish tissue concentration, are not adequately protective of aquatic resources and endangered species.
The letter also asks EPA to extend the comment period because 30 days to review 600 pages of highly technical information is simply insufficient time to adequately analyze and prepare comments on whether the criteria meets requirements of the Endangered Species Act, Fish and Wildlife Coordination Act, Migratory Bird Treaty Act, Tribal fish rights and is protective of the health of individuals who consume fish, especially those living in subsistence fishing communities.
Comment Letter Technical Attachment
On 11 June 2014, CSPA and AquAlliance filed a lawsuit in federal District Court against the U.S. Bureau of Reclamation (USBR) over its inadequate disclosure, avoidance of impacts, and mitigation of major water transfers from the Sacramento Valley through the Delta to the San Joaquin Valley. USBR proposes to transfer up to 175,226 acre-feet (AF) of Central Valley Project surface water to San Luis Delta Mendota Water Authority As much as 116,383 AF of that water may be in the form of groundwater substitution. Coinciding with the USBR transfer, the State Water Project and private parties are proposing to transfer another possible 305,907 AF or more of water. The lawsuit asks the court to declare that USBR’s Environmental Assessment and Finding of No Significant Impact was arbitrary and capricious, ignored relevant new information and failed to meet minimum requirements of the National Environmental Policy Act.
Exporting massive quantities of water during periods of negligible Delta outflow draws the low salinity zone into the central Delta and exposes endangered delta smelt to lethal temperatures and entrainment in Delta pumps. This is especially critical as Delta flow and water quality standards have been weakened six times in less than 90 days and plaintiffs have discovered that state and federal agencies are grossly overestimating actual Delta outflows. USBR refused to consider the new information and revise the EA and FONSI.
CSPA Executive Director Bill Jennings observed, “Last year, excessive water exports and low outflow drew delta smelt from Suisun Bay into the central Delta where they were butchered by lethal water temperatures. This year, with population levels hovering at historic lows: excessive transfers and exports, relaxed flow standards, high temperatures and negligible outflows may catapult the species into the abyss of extinction. On top of these threats, we were astonished to discover that the estimates of Delta outflow that state and federal agencies have reported and regulators have relied upon for years are wrong and significantly overestimate outflow in low flow conditions. Indeed, last month there was actually a minus 45 cfs net outflow to the Bay while DWR and USBR were reporting a plus 3805 cfs.”
The Net Delta Outflow Index (NDOI) used to assess compliance with required flow standards is based upon a formula of both actual and estimated data. Examination of tidally filtered outflow data from the U.S. Geological Survey’s state-of-the-art UVM flow meters on the Sacramento and San Joaquin Rivers and Three-mile and Dutch Sloughs reveals that actual Net Delta Outflow (NDO) in low flow conditions are considerably lower. These USGS sites capture all outflows from the Delta to the Bay. Incredibly, the state’s own evaluation of NDO with the NDOI, as reported on DWR’s Dayflow website and the Dayflow 2013 Comments, reveals that the NDOI significantly overestimates outflow in drier periods.
Lawsuit The Case of the Missing Delta Outflow Press Release The 2013 Massacre of Delta Smelt
On 11 June 2014, the Environmental Water Caucus, of which CSPA is a member, submitted 259 pages of scathingly critical detailed comments on the Draft Bay Delta Conservation Plan (BDCP) and associated Environmental Impact Report and Environmental Impact Statement (EIR/EIS). CSPA was integrally involved in preparation of the extensive comments and will continue to develop additional comments to be submitted by the 29 July deadline.
BDCP’s scheme of constructing twin tunnels equivalent to an eight-lane expressway under the Delta to divert the Sacramento River to irrigate the vast agricultural plantations of the San Joaquin Valley would be a disaster for the Delta’s pelagic and anadromous fisheries.
CSPA’s Executive Director Bill Jennings characterized the plan and EIR/EIS as “an omelet of distortion and half-truth intended to mislead and deceive.” Analysis of the documents reveals that the plan would increase water exports, decrease Delta outflow, seriously impair the low salinity habitat crucial for pelagic species, degrade water quality, increase selenium and mercury levels in fish and reduce the smolt survival rates for winter-run, spring-run and Sacramento and San Joaquin River fall-run Chinook salmon.
Press Release EWC, CSPA Comments
On 4 June 2014, CSPA and a coalition of fishing and environmental organizations submitted comments to the U.S. Bureau of Reclamation (USBR) concerning the proposed cost allocation methodology for the federal Central Valley Project. The comments point out that, among other things, the cost methodology: 1) does not adhere to fundamental principles of economic analysis; 2) is internally inconsistent; 3) unjustifiably shifts costs to taxpayers and 4) perpetuates decades of flawed techniques that have resulted in billions of dollars in direct and indirect subsidies to a relatively few project beneficiaries.
Additionally, since the methodology is actually only a description of a possible cost allocation methodology based upon a flawed historical approach and not a thorough review, it is unclear what the final methodology will be. The letter recommends that USBR revise the proposed methodology and re-circulate it for further public review.
On 2 June 2014, CSPA sent a notice of intent to sue Metech International, LLC metal recycling facility for violations of the substantive and procedural requirements of the Clean Water Act and California’s General Industrial Stormwater Permit. Metech International operates a 3-acre industrial facility that discharges polluted storm water to three discharge points into Llagas Creek, which then conveys that storm water into the Pajaro River, which ultimately flows into Monterey Bay. Pollutants discharged above the applicable limits include: Iron, Aluminum, Copper, Zinc, Magnesium, Cadmium, Mercury, Lead, Silver, Total Suspended Solids and Chemical Oxygen Demand.
In addition to the facility’s discharge of pollutants that exceed applicable standards, Metech International failed to 1) develop and implement an adequate storm water pollution prevention plan; 2) sample required parameters; 4) install management measures to reduce or prevent pollutants from entering waterways; and 5) file timely, true and correct annual reports.
Pursuant to the citizen-suit provisions of the federal Clean Water Act, CSPA is required to send a potential defendant a notice letter informing them of the specific violations that have been identified. The U.S. EPA, U.S. Department of Justice, state Attorney General and the Regional Water Quality Board are copied and, if the agencies fail to initiate enforcement actions within 60 days, CSPA is free to file a lawsuit against the discharger. CSPA has offered to meet with the Metech International to see if the matter can be resolved prior to litigation. The Law Offices of Andrew Packard are representing CSPA in this matter.
On 30 May 2014, CSPA joined the Environmental Justice Coalition for Water in requesting a restart of the BDCP comment period. The BDCP comment period extension was requested because agencies failed to provide meaningful access and participation for California’s limited English speakers and low income communities.
The request points to forty-seven significant and unavoidable adverse impacts listed in the EIS/EIR that will have direct impact on residents of 5 Delta counties (San Joaquin, Sacramento, Solano, Yolo, Contra Costa). In these counties 14% of the population speaks languages other than English and 17% of the population is living below the poverty line. To allow the thousands of low-income and limited English speakers to have meaningful participation the coalition is requesting agencies hold public hearings and provide interpreters; translate vital documents such as, at the very least, the Executive Summary of the draft EIS/EIR; and provide affordable access to documents. Failing to do so would constitute violations of CEQA and NEPA, as well as federal and state civil rights of a significant population of the five Delta counties.
Environmental Justice Coalition for Water Request
On 21 May 2014, CSPA filed a lawsuit against Sue Syar Concrete, LLC, which operates a ready mix concrete facility in Lincoln California. The facility discharges pollutants to Markham Ravine, which flows into Auburn Ravine and ultimately the Sacramento River.
The lawsuit alleges that the facility: 1) discharges pollutants in violation of the federal Clean Water Act and California’s General Industrial Stormwater Permit; 2) failed to develop and implement an adequate Stormwater Pollution Prevention Plan and 3) failed to develop and implement an adequate Monitoring and Reporting Program.
The action asks the court to: 1) declare Syar Concrete to be in violation of the law, 2) enjoin defendant from further violating the substantive and procedural requirements of the permit, 3) pay civil penalties for each day of violation and 4) award CSPA the costs of bringing the complaint. Lawyers for Clean Water are representing CSPA in this matter.
On 21 May 2014, CSPA filed a lawsuit against Jensen Precast for violations of the substantive and procedural requirements of the federal Clean Water Act and California’s General Industrial Stormwater Permit. The 12-acre Sacramento concrete facility discharges polluted stormwater to Magpie Creek, which then flows to Steelhead Creek, the Natomas East Main Drainage, and ultimately to the Sacramento River.
The lawsuit alleges that the facility discharges pollutants in violation of permit conditions. It further alleges that Jensen Precast failed to develop and implement an adequate Stormwater Pollution Prevention Plan and Monitoring and Reporting Program.
The action asks the court to: 1) declare the Jensen Precast to be in violation of the law, 2) enjoin defendant from further violating the permit, 3) pay civil penalties for each day of violation and 4) award CSPA the costs of bringing the complaint. Lawyers for Clean Water are representing CSPA in this matter.
On 21 May 2014, CSPA filed a lawsuit against Pick-N-Pull Auto Dismantlers for violations of the substantive and procedural requirements of the federal Clean Water Act and California’s General Industrial Stormwater Permit. Pick-N-Pull operates a 15-acre automobile dismantling facility on Stockton Boulevard in Sacramento California that discharges polluted stormwater to the municipal storm sewer system and thence to local waterways.
The lawsuit alleges that the facility: 1) discharges pollutants in violation of permit conditions; 2) failed to develop and implement an adequate Stormwater Pollution Prevention Plan and 3) failed to develop and implement an adequate Monitoring and Reporting Program.
The action asks the court to: 1) declare the Pick-N-Pull to be in violation of the law, 2) enjoin defendant from further violating the requirements of the permit; 3) pay civil penalties for each day of violation and 4) award CSPA the costs of bringing the complaint. Lawyers for Clean Water are representing CSPA in this matter.
On 19 May 2014, CSPA and CWIN submitted comments for the State Water Resource Control Board’s (Board) workshop on options for drought related curtailments of post-1914 water rights in the Sacramento-San Joaquin River Delta. The Board has proposed a series of options on how to restrict diversions of water from streams during the drought. A workshop on the matter is scheduled for 21 May 2014.
The options, in varying degree, reflect the Board’s desire to maintain a level of exports to the agribusiness plantations of the Southern San Joaquin Valley by the state and federal water projects. However, the water rights of those projects are among the most junior rights in California’s seniority-based system of water rights.
The Board has already significantly reduced flows established to protect water quality and fish during critical dry periods to levels that are not protective of fisheries or water quality. It now seeks to reduce water diversion by upstream senior water rights holders, while allowing water to be supplied to the most junior water south-of-Delta right holders.
CSPA believes a first step to save water is to cease the export of water from the Delta by the state and federal projects, with the exception of water for public health and safety. Second, the Board needs to identify and specify minimum instream flows and reservoir storage levels necessary to protect public trust resources. The Board can then fairly distribute necessary curtailments according to California’s long-established water rights system.
CSPA Comments, Curtailment Workshop