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CSPA Comments on State Water Board’s Response to Climate Change

CSPA, the California Water Impact Network and California Water Research submitted a comment letter on March 31, 2021 to the California State Water Resources Control Board, Division of Water Rights on the Water Board’s Recommendations for an Effective Water Rights Response to Climate Change: Identification of Data Needs and Recommendations to Incorporate Climate Change into Water Rights Permitting Policies, Procedures, and Methodologies (Recommendations). The Water Board released this report in February, 2021 and invited stakeholders to provide feedback and to propose other options not listed in the report. Click here for a link to the report.

The report outlines staff recommendations to make water availability analyses for permitting new water rights more robust. It also suggests actions to support an effective water rights response to climate change. The report describes the rapid rate of climate change in California and the inadequacy of reliance on past hydrology to predict future conditions. The report outlines new data needs, opportunities, and potential approaches for an effective water rights response.

Some of the report’s recommendations include actions such as:

• Develop adaptive permit terms in new permits
• Develop a fact sheet for water right applicants to incorporate climate change
• Expand existing network of stream and precipitation gages
• Reevaluate the existing instream flow metrics and criteria
• Revise the Fully Appropriated Stream list
• Prepare for and capitalize on capturing flood flows and storing them underground
• Plan for droughts

The CSPA et al. comment letter supports the report’s discussion of the impacts of climate change on stream flows and the need for better estimations of unimpaired flows. However, the letter expresses concerns about the several elements and omissions, including:

1) The Division of Water Rights needs to consider the role of diversions in stressing freshwater ecosystems in the state to avoid crisis management. During the 2012-2016 drought, the Water Board temporarily suspended at least 35 minimum instream flow standards. By August 2015, the Department of Fish and Wildlife reported that there had been 783 fish rescues in 52 different watersheds, comprising 51 species and more than 264,000 fish.  Unless the Water Board does a better job of keeping water in our rivers and streams, California’s native aquatic and stream-dependent species will not survive climate change.

2. The Division of Water Rights needs to consider the decades of delays and inaction on determining instream flow needs. The comment letter references a 1976-1977 Governor’s Commission to Review California Water Rights Law 1978 Final Report. That report recommended increased protection for instream flows and better management of groundwater. For aquatic ecosystems to survive, the Water Board must implement long overdue protections for instream flows.

3. The Division of Water Rights needs to establish rules to protect variability of flows that are greater than required minimum flows. The Water Board must not consider all water over and above existing diversion allocations and required minimum instream flows to be available for appropriation. The Water Board should establish both defaults and site-specific rules that define water available for groundwater storage, particularly in new water rights.

4. The constitutional principle of reasonable use and the public trust doctrine must be the foundation of all water rights permitting decisions by the Water Board. In 1983, the California Supreme Court found that “[t]he state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible.” (National Audubon Society v. Superior Court (1983) 33 Cal.3d 319, 446)

The complete comment letter can be found here: CSPA-et-al-re-WR-response-to-Climate-Change.pdf and the attachment here:  CSPA comments Managed Replenishment White Paper 120517.

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CSPA Urges State Water Board to Tap New Melones Now

Following up on the State Water Board’s April 21, 2021 workshop on Sacramento River water temperature management, CSPA has written a letter urging the Board to enforce existing flow requirements for the lower San Joaquin River.  Water Rights Decision 1641 requires the Bureau of Reclamation to release water from New Melones Reservoir to meet seasonal San Joaquin River pulse flows.  Implementing the required releases from New Melones would also take pressure off other major reservoirs, which are struggling to maintain cold water for fish downstream.

During the April 21 workshop, a spokesperson for the Bureau of Reclamation identified storage levels at New Melones as the “shining star” of the Central Valley Project.  Meanwhile, Trinity, Shasta, Oroville and Folsom reservoirs are as low as they were in the 2014 and 2015 drought years.  Nonetheless, the Reclamation and the California Department of Water Resources are drawing water from those reservoirs north of the Delta to meet Delta flow and salinity requirements.

The outrage is that Decision 1641 already requires Reclamation to release enough water from New Melones to make the flow on the lower San Joaquin River greater than 3000 cubic feet per second, from April 15 through May 15.  But as it did in the last drought, Reclamation is shining on both the requirement and the State Water Board, which established and is supposed to enforce the requirement.  On April 26, 2021, flows at the San Joaquin River compliance point are less than half the required flow.

This optional compliance needs to end.  On top of that, Reclamation should increase the New Melones release simply on the grounds that it would better water management than further drawing down the north-of-Delta reservoirs, where downstream fisheries are moving towards lethal temperature conditions later this summer.

Meet the requirements and save fish!

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CSPA Comments on FERC’s Additional Information Request for Merced Irrigation District’s Hydro Projects

Crocker Huffman Dam – Merced Fall Hydro Project

CSPA and several allied conservation groups[1] filed comments on April 1, 2021 responding to the Federal Energy Regulatory Commission (FERC) staff’s February 19, 2021 Additional Information Request (AIR) for the Merced River Hydroelectric Project and the Merced Falls Hydroelectric Project (collectively, Projects). These two hydroelectric projects are owned by the Merced Irrigation District (Merced ID) and have been undergoing relicensing since February 2012.

On June 18, 2020, FERC issued an Order finding that the State Water Board had waived certification for the Projects.[2] A primary purpose of the AIR is to allow FERC to evaluate the inclusion of elements of the combined Water Quality Certification (the Certification) for the Projects.

The AIR also addresses information needed to inform the National Marine Fisheries Service’s (NMFS) consultation under the Endangered Species Act (ESA). NMFS has informed FERC that the ESA consultation must consider past effects of project operations as well as comparing present project effects with effects under proposed future operation. FERC did not perform this analysis in its Final Environmental Impact Statement in 2015. FERC plans to issue a Supplemental Environmental Impact Statement to perform this new evaluation.

The Conservation Groups’ comments recommend that FERC Staff clarify and expand its directives on the following issues:

1) Provide explicit direction and rules to Merced ID for modeling elements of specified Certification Conditions, including carryover storage, irrigation deliveries, temperature targets and performance metrics, and for modeling specific scenarios for State Water Board’s Certification Condition 4 (Extremely Dry Conditions).

2) Revise directives to MID related to the pre-project baseline, cumulative effects, and geographic scope.

3) Review and analyze those elements of the Certification whose implementation would positively affect tribal interests, in order to more fully inform Staff’s analysis.

The Conservation Groups submitted these comments because of concerns that the AIR lacks sufficient specificity and direction to Merced ID regarding how to model elements of the Certification that the Certification itself left to be defined or quantified at a future date. The AIR also lacks internal consistency: it asks Merced ID to provide analysis of the past effects of project operation, but not the past effects of project construction.

Another major concern is that the AIR appears to be partially premised on the position that FERC has discretion to decline compliance with those elements of the Certification that are also elements of the adopted Bay-Delta Plan. This premise that waiver of certification would absolve Merced ID of compliance with the Bay-Delta Plan is unfounded. FERC needs to clarify this distinction and to direct Merced ID on how to model the adopted Bay-Delta Plan in light of the fact that the Bay-Delta Plan will require Merced ID’s compliance.

FERC’s do-over of its Environmental Impact Statement needs to pick up all the loose ends. That requires clarity. It is not helpful to ask a regulated entity to fill in the blanks before providing information that is supposed to help FERC staff correct oversights and poor decisions that staff made previously in relicensing.

 

[1] Other groups include the Merced Conservation Committee, the Golden West Women Flyfishers, Friends of the River, American Rivers, American Whitewater, Trout Unlimited, the Northern California Council Federation of Flyfishers International and the Sierra Club Tehipite Chapter.

[2] The California State Water Resources Control Board and a group of environmental organizations, including California Sportfishing Protection Alliance, Friends of the River, and Sierra Club and its Tehipite Chapter, each have filed a petition for review with the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) of FERC orders finding that the Water Board waived its authority under section 401 of the Clean Water Act (CWA) to issue a water quality certification (WQC) in the ongoing relicensing of Merced Irrigation District’s (Merced) Merced River and Merced Falls Projects.  CSPA et al.’s Petition was filed in October 2020.

 

 

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CSPA Says No Again to Suction Dredging Mining

The California Sportfishing Protection Alliance, along with 19 other conservation, fisheries and community organizations, submitted comments on March 5, 2021 to the California State Water Resources Control Board on a proposed National Pollutant Discharge Elimination System (NPDES) General Permit for Suction Dredges Mining Discharges.

Suction dredge mining was prohibited in California in 2009.  In 2015, the California Fish and Game Code and Water Code were amended, requiring miners to obtain both (1) a permit from the State Board or a letter from the State Board stating no such permit is required, and (2) a permit from the California Department of Fish and Wildlife to suction dredge mine in California.  The State Board requested comments on the proposed new NPDES permit.

The CSPA & coalition comment letter urges the State Board to maintain its previous recommendation that suction dredge mining “be permanently prohibited,” because the significant environmental effects of this destructive activity cannot be fully mitigated.  The letter states that if the it does decide to selectively allow suction dredge mining, the State Board must:

  • Maintain strong prohibitions on suction dredge mining in areas where there has been historic gold mining or that have high levels of heavy metals, such as mercury.
  • Prohibit mining in waters that are impaired for sediment; areas with rare, sensitive, threatened or endangered species; and areas with cultural, recreational, and aesthetic resources.
  • Create and distribute descriptions and maps that accurately describe all areas where suction dredge mining is prohibited—such as national parks, wilderness areas, and military areas—to avoid confusion and conflicts.
  • Require real-time monitoring to ensure that water-quality violations do not occur.
  • Issue only individual permits and not a general permit, because site- and operation-specific impacts can only be analyzed on a permit-by-permit basis.

 

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CSPA Urges Changes at San Francisco Public Utilities Commission

CSPA joined with 26 other fishing and environmental groups and businesses in a March 9, 2021 joint letter that urges hiring a progressive, experienced outside general manager for the San Francisco Public Utilities Commission (SFPUC or Commission).  The SFPUC is the City of San Francisco’s water agency.  The letter to San Francisco Mayor London Breed and SFPUC President Sophie Maxwell points out that with the hiring of a new General Manager, the SFPUC has opportunities for:

  • Utilizing a science-based approach to setting new flow standards to protect the Tuolumne River, the Bay-Delta ecosystem and California’s salmon fishing jobs.
  • Embracing more realistic water demand projections and potential drought scenarios to better plan for the future.
  • Investing in water supply alternatives that can reduce vulnerability to climate change and reduce reliance on the overtaxed Tuolumne River.
  • Building collaborative relationships with community interest groups, including the environmental and fishing communities.

In a separate letter to SFPUC President Maxwell also sent on March 9, 2021, CSPA expressed disappointment that a recent petition to the State Water Board by the City of San Francisco on behalf of the SFPUC relies on the Trump Administration’s rollback of Section 401 of the Clean Water Act.  (For analysis of the rollback, see Hydropower Reform Coalition Opposes Another Trump Administration Attack on the Clean Water Act).  CSPA’s March 9 letter states: “The goal of the Petition is to prevent the State of California from requiring improved flows in the lower Tuolumne River.”  CSPA requests that the Commission “disavow policies and legal positions that rely on ex-President Trump’s environmental rollbacks,” appoint new staff leadership, and work with stakeholders on alternative strategies for dry year sequences.

In a related letter sent to President Maxwell on February 22, 2021, CSPA responded to a presentation by SFPUC staff at a February 5, 2021 SFPUC workshop.  CSPA’s February 22 letter disputes claims by SFPUC staff that science supports substituting the proposed Tuolumne River Voluntary Agreement (TRVA) for the State Water Board’s update of Bay-Delta Plan.  The letter concludes: “The purported benefits of the TRVA are founded on speculation, assumption and aspiration. The primary benefit is the assumption that use of less water is a better outcome.  The SFPUC would be better served by acknowledging the scientific basis for the Bay-Delta Plan.”

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CSPA & PCFFA Urge Reversal of Harmful & Unlawful Trump Actions on the Central Valley Project

By Cindy Charles

The California Sportfishing Protection Alliance (CSPA) and the Pacific Coast Federation of Fishermen’s Associations (PCFFA) sent a joint letter on February 16, 2021 to the Biden Administration and Secretary of Interior designate Debra Haaland, urging them to withdraw or rescind four major policy changes to the Central Valley Project (CVP). These changes were last-minute actions of the Trump Administration made by former Interior Secretary Bernhardt, who was previously employed by one of the biggest beneficiaries of these actions: Westlands Water District. If implemented, the actions would lead to extremely adverse environmental, cultural, and economic impacts within California.

President Biden’s issued an Executive Order on January 20, 2021, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, that directed the development within 30 days of a preliminary list of recissions and withdrawals of Trump-era actions. The CSPA & PCFFA letter urges that the following items be added to this list:

  1. Withdraw former Secretary Bernhardt’s January 19, 2021 memorandum that slashes statutorily required funding for Central Valley Project mitigation and restoration.
  2. Rescind unlawfully executed permanent water contracts for Westlands Water District and other CVP contractors, in order to ensure compliance with Reclamation laws, the Central Valley Project Improvement Act, Endangered Species Act and the National Environmental Policy Acts.
  3. Withdraw the Business Practices and Guidelines pending before Office of Management and Budget (OMB) that would shift hundreds of millions of dollars owed by the CVP contractors to American taxpayers.
  4. Withdraw and peer review the Trump Administration cost allocation methodology for the CVP that would shift hundreds of millions of dollars in costs owed by water and power beneficiaries to American taxpayers.

CSPA and PCFFA also circulated this letter to key members of the House and Senate. The letter continues CSPA’s work to ensure the enforcement of statutory obligations, recission of unlawful permanent water contracts, and meaningful oversight of federal agencies’ performance under the Central Valley Project Improvement Act.

 

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CSPA Defends Cold Water for North Fork Feather River & Lake Almanor

By Cindy Charles

The California Sportfishing Protection Alliance (CSPA) and American Whitewater (AW) submitted comments to the Federal Energy Regulatory Commission (FERC) on January 5, 2021 in support of two “must-have” license conditions for the Upper North Fork Feather Hydroelectric Project (Project 2105).  If these conditions are left out of the project’s new license, summer water temperatures in most of the North Fork Feather River will remain too warm for trout for the next forty to fifty years, while trout in Lake Almanor will have too little oxygen.

North Fork Feather River below Belden Dam

The project is owned by Pacific Gas and Electric Company (PG&E).  Current project operation violates water temperature requirements set forth in the Central Valley Basin Plan.  In addition, the State Water Board has listed the North Fork Feather River as impaired for water temperature under Section 303(d) of the Clean Water Act.  For 15 years, PG&E has opposed new license conditions for Project 2105 that would mitigate the temperature impairment.

FERC relicensing for Project 2105 was completed fifteen years ago, including a partial settlement agreement that left water temperature issues unresolved.  For its part, FERC left water temperature improvements up to the State Water Board and its Section 401 Water Quality Certification for the relicensing.  However, on April 24, 2020, PG&E petitioned FERC to “waive” certification for procedural reasons.  The State Water Board issued its Draft Certification and a Revised Draft Environmental Impact Report on May 15, 2020, but FERC waived 401 Certification on July 16, 2020.

CSPA and AW’s comments highlight the legal and factual reasons why FERC must act to improve water temperatures in the North Fork and coldwater fish habitat in Lake Almanor.  The comments also remind FERC of its responsibilities under the Federal Power Act (FPA) to issue a license consistent with comprehensive plans in the record (primarily the Central Valley Basin Plan), regardless of FERC’s waiver decision.

CSPA & AW write that the new license for the Project 2105 must include:

1)  Supplemental summer releases from Lake Almanor’s Canyon Dam to improve water temperatures and protect cold freshwater beneficial uses in the North Fork Feather River from Belden Forebay downstream through the Rock Creek and Cresta reaches.  The purpose of these flows is to prevent the mean daily water temperature of the North Fork Feather River from exceeding 20°C, to the extent possible.

2) An oxygenation facility near Canyon Dam to mitigate for project effects on dissolved oxygen and coldwater fish habitat in Lake Almanor, Project 2105’s storage reservoir.  The facility would release oxygen from the bottom of Lake Almanor so that much more of the existing cold water in the lake could support trout.  Under current conditions in summer, most of the cold water in Lake Almanor doesn’t have enough oxygen for fish.  The letter recommends paying for the facility using an existing fund set aside for coldwater habitat in the watershed.

North Fork Feather River wild rainbow trout

CSPA and AW’s comments continue twenty years of advocacy that PG&E’s operation of Project 2105 can and must support great trout fisheries in both Lake Almanor and the North Fork Feather River.

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FERC Denies Waiver of Clean Water Act for Tuolumne River Hydropower Projects

The Federal Energy Regulatory Commission has denied a petition to waive water quality certification for the Don Pedro and La Grange Hydroelectric Projects on the Tuolumne River.  The January 19, 2021 denial is a rebuke to Turlock Irrigation District and Modesto Irrigation District (Districts), who jointly own and operate the projects.  The Districts had sought to piggyback on a series of waivers that FERC has granted in the last two years.  No soap.

The denial means that the State Water Board’s Final Water Quality Certification for the Projects, issued January 15, 2021, will stand unless overturned on appeal.

The controversy starts with the Clean Water Act’s one-year deadline for a state to grant or deny a certification.  Certification says a new federal permit or license will comply with state laws on water quality.  FERC justified other waivers of certification on the grounds of withdrawal and resubmittal by an applicant of its request for certification.  FERC held that this meant that the state did not “act” within one year.  CSPA and other conservation groups are currently litigating three such FERC waivers of certification for California hydropower projects.[1]

The Districts’ argument was a bridge too far, even for FERC.  The Districts argued that denial of certification “without prejudice” (allowing another application) was a “scheme” that was legally equivalent to withdrawal and resubmittal by the applicant.  The Order denying waiver succinctly states: “Based on the plain language of the statute, we find that on both occasions the California Board, in denying certification, ‘acted’ on the Districts’ request within one year.”

Theoretically, the Districts could appeal FERC’s ruling by “requesting rehearing.”  However, FERC’s unanimous vote against waiver does not augur well for such an appeal, or for potential subsequent legal challenge in federal court.  More likely, the theater of combat will shift to an appeal to the State Water Board and subsequent challenge in state court.

CSPA and other Conservation Groups opposed waiver twice, most recently in December 7, 2020 supplemental comments to FERC.[2]

CSPA and allied groups also submitted comments on the Draft Water Quality Certification for the Projects to the State Water Board.  Notably, the State Water Board’s Final Certification adopted the Conservation Groups’ recommendation to require increased summer flows in the downstream reach of the lower Tuolumne River in order to benefit the residents of Modesto and nearby communities.  The Certification’s rationale for the increase states in part: “[T]he record does not support the conclusion that 12 boatable days provides reasonable access to the urban and rural communities seeking boating recreation opportunities.”  It also notes: “Flows of 200 cfs and lower in the lower Tuolumne River are also associated with warm water temperature, water hyacinth growth, poor water quality, stagnant conditions that support warm water predatory fish, poor aesthetic quality, and inequitably affect access to natural resources for urban and rural communities.”

The Districts are certain to contest the Final Certification, which as written requires the flows adopted in the update of the Bay-Delta Plan.  Unless the State Water Board modifies the Bay-Delta Plan, this means the Districts will be required to allow 40% of the unimpaired February-June inflow to Don Pedro Reservoir to pass downstream.

The Final Certification is not perfect, but the State Water Board’s document significantly improves on the conditions that FERC is prepared to require of its own accord.  The fact that the Certification has withstood the initial challenge at FERC is a victory whose outcome was by no means certain.

[1] See previous posts:  https://calsport.org/news/cspa-sues-ferc-over-waiver-of-clean-water-act/; https://calsport.org/news/wp-content/uploads/CSPA-Newsletter_-Turbulent-Waters-fall-2020.pdf; https://calsport.org/news/innews/ferc-declaratory-order-finding-waiver-of-california-section-401-authority-challenged-in-ninth-circuit-3/

[2] For the first set of Conservation Groups’ comments, see https://calsport.org/news/cspa-opposes-turlock-and-modesto-irrigation-districts-petition-for-waiver-of-clean-water-act/

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The State of California’s Executive Branch Needs to Close the Books on Negotiations of “Voluntary Agreements” with Water Agencies and Irrigation Districts that Attack the Authority of the State Water Board and Foundational Environmental Law

Summary

Both Yuba Water Agency (YWA) and the Turlock and Modesto Irrigation Districts (Districts) allege that the State Water Resources Control Board (State Water Board) has unlawfully delayed decisions concerning their respective hydroelectric projects.  Both YWA and the Districts have mounted aggressive legal attacks on the State Water Board and on the laws that give the Board its legal authority, in order to avoid regulation by the Board.

At the same time, YWA and the Districts want the State Water Board to grant them discretionary delay to complete “Voluntary Agreements” about flow requirements in the Yuba and Tuolumne rivers.  This delay prevents the Board from setting mandatory flow requirements in the legally required and long overdue update of the Bay-Delta Plan.

Negotiations of Voluntary Agreements have been ongoing for about 4 years for the Yuba and 8 years for the Tuolumne.  Ignoring the legal attacks of YWA and the Districts (among others), the Newsom administration continues to tie the hands of the State Water Board and leave the door open for Voluntary Agreements.  It’s long past time to slam the door shut.  Continue reading

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CSPA Opposes Turlock and Modesto Irrigation Districts’ Petition for Waiver of Clean Water Act

Joining a growing list, Turlock and Modesto Irrigation Districts (Districts) filed a Petition for Declaratory Order with the Federal Energy Regulatory Commission (FERC or Commission) on October 2, 2020 asking that the Commission find that the State of California has waived certification under Section 401 of the Clean Water Act (CWA).  CWA Section 401 allows a state to issue a “water quality certification” that places mandatory conditions on a new federal permit or license.  The Districts are seeking a new FERC license for two hydropower projects on the Tuolumne River, the Don Pedro Project and the La Grange Project.

Previous requests for waiver have relied on FERC’s expansive interpretation of the court ruling in Hoopa Valley Tribe v. FERC (Hoopa Valley)[1].  In response to previous petitions, FERC granted waiver in finding that withdrawing and resubmitting an application for a certification was in many cases an unlawful circumvention of the state’s one-year deadline to issue a certification.  CSPA and others have challenged three of FERC’s previous decisions in court.[2]

The Districts’ petition relies on a different argument: that even though the California State Water Resourced Control Board denied the Districts’ applications for certification on two separate occasions, this denial “is in fact the functional equivalent of the arrangement rejected in Hoopa.”

In response to the Districts’ petition, CSPA and seven other “Conservation Groups” filed a Motion to Intervene in any FERC proceeding that would result in a decision on the Districts’ petition.  This Motion also contains several arguments in opposition to the Districts’ position. The Conservation Groups chose to file a motion because FERC did not clarify the procedural requirements to respond to the Petition.  Five days after Conservation Groups filed their motion, FERC clarified the procedural requirements, allowing an additional 30 days to comment.

[1]Hoopa Valley Tribe v. FERC, 913 F.3d 1099, 1104 (D.C. Cir. Apr. 26, 2019), reh’g denied, No. 14-1271, 2019 WL 3928669 (D.C. Cir. Apr. 26, 2019), and cert. denied sub nom. California Trout v. Hoopa Valley Tribe, 140 S. Ct. 650, 205 L. Ed. 2d 410 (2019).

[2] See previous posts:  https://calsport.org/news/cspa-sues-ferc-over-waiver-of-clean-water-act/; https://calsport.org/news/wp-content/uploads/CSPA-Newsletter_-Turbulent-Waters-fall-2020.pdf; https://calsport.org/news/innews/ferc-declaratory-order-finding-waiver-of-california-section-401-authority-challenged-in-ninth-circuit-3/

 

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CSPA Early Fall 2020 Newsletter is Available Now

The Early Fall 2020 Edition of the California Sportfishing Protection Alliance Newsletter is out now. The articles found in the newsletter are summarized below by Bill Jennings, CSPA’s Executive Director.

From the Desk of Bill Jennings

I hope each of you have had an opportunity to wet your line, while staying safe and healthy, during the present pandemic. CSPA’s efforts to protect fisheries and water quality have continued unabated.

This edition of the newsletter is a sampling of recent events in our continuing efforts spanning years and decades. These efforts involve extended administrative proceedings, often followed by litigation. For example, the current Don Pedro FERC relicensing must be read in the context that CSPA was heavily involved in hydropower relicensing on the Tuolumne River more than twenty-five years ago. Similarly, Governor Newsom’s Water Resilience Portfolio is only the latest chapter in proceedings that began in the early 1990’s and continued through CalFed, Delta Vision, the Bay-Delta Conservation Plan, and the WaterFix twin tunnels to the current proposed single tunnel Delta Conveyance Project.

We begin this newsletter with our landmark settlement with the State Water Board over a contentious pattern and practice lawsuit that began during the 2013-2015 drought. The settlement will fundamentally change the way the State Board addresses Sacramento River temperature control, temporary change petitions, Fish and Game Code Section 5937 and development of the Bay-Delta Water Quality Control Plan.

Second, we report on the National Marine Fisheries Service’s historic capitulation in a 13-year process to develop a Habitat Conservation Plan (HCP) for the Calaveras River that essentially dewaters the lower 24 miles of the river. CSPA filed Public Trust Complaints in 2000 and 2005 that the State Water Board placed in abeyance pending development of the HCP that will now move forward. Other than CSPA, no other organizations have been minding the Calaveras store.

We then turn to lawsuits against the Federal Energy Regulatory Commission over waivers of Clean Water Act requirements, part of a disturbing national trend. We also relate current activities in the federal relicensing of the Don Pedro and La Grange Dams on the Tuolumne. We report on three recently filed lawsuits: one against the waterboards regarding massive pollutant discharges into the San Joaquin River without necessary permits, the second against the Bureau of Reclamation concerning water transfers, and the third against Interior and Westlands Water District over water service contracts. Finally, we discuss Governor Newsom’s Water Resilience Portfolio that presages the next battle over attempts to divert Sacramento River water into a new reservoir and under the Delta for delivery to Southern California.

There is far too much else to cover in a brief newsletter: for example, scoping comments on the Notice of Preparation of an environmental document for the Delta Conveyance EIR; lawsuits against the Department of Water Resources over long-term contracts and over “validation” for bond funding for the tunnel; an array of Clean Water Act enforcement actions; etc.

I believe it’s accurate to say that, but for CSPA’s involvement, California’s fisheries and water quality would be in considerably worse condition than at present. And we’ve accomplished this on an extremely lean budget, because we don’t accept funds from sources that would limit our efforts to protect fisheries. Since we don’t accept “being reasonable” in lieu of protecting fish, we rely on your donations and memberships. We are deeply appreciative of your continuing support.

In addition to our main website, please be sure to frequently visit our Fisheries Blog on the current state of California fisheries. It’s a great step-by-step tool to get a better grasp from a fish-eye perspective. Cheers!

 

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NMFS Gives Stockton East and Irrigators All the Water in the Calaveras River

On September 14, 2020, the National Marine Fisheries Service (NMFS) and Stockton East Water District (Stockton East) issued a Final Habitat Conservation Plan (HCP) for the Calaveras River.  The HCP will require a minimum flow of 20 cfs upstream of Stockton East’s major water supply diversion at Bellota Weir (River Mile 24).  It will also require fish ladders and screens at several major diversions.  However, the Plan allocates zero water to fish in the lower 24 river miles of the river.  At Bellota Weir, Stockton East will recapture all of the required flow release from New Hogan Dam (River Mile 42).

Water supply operation currently blocks salmon and steelhead migration into the Calaveras River from its confluence with the San Joaquin River in Stockton to Bellota Weir.  Migration opportunities in the 24 miles between those two points are currently limited to periods of flood control releases from New Hogan Dam during the non-irrigation season.  Dozens of flashboard irrigation dams downstream of Bellota Weir block fish migration from March or April through October 15 every year.

CSPA was to our knowledge the only fishing or conservation organization that commented on the draft HCP and the accompanying draft Environmental Assessment.  (See Calaveras River Plan Takes 14 Years to Keep All the Water, November 2019).  CSPA’s top line comment stated:

It is not reasonable to devote zero stored water to a fisheries HCP, particularly in a watershed where storage is about double average annual runoff, and where additional future diversions for groundwater recharge are explicitly planned. …The arguments in the HCP against the pejoratively labelled “artificial” migration flows are unpersuasive, particularly because the analysis that purports to support these arguments limits evaluation to limited arbitrarily selected flow volumes.

In response, NMFS and Stockton East’s Final Environmental Assessment said they were right the first time: “SEWD analyzed the impacts to water storage in New Hogan from implementation of additional migration flows in Mormon Slough, a flood conveyance channel. This analysis indicated negative consequences to water storage, which wouldn’t support salmonid habitat conditions in the Calaveras River long-term.”

CSPA doesn’t think so.  “Negative consequences to water storage” are a price of doing business, all the more when the storage dam captures all the water in three years out of four.  The fish screens and fish ladders called for in the HCP won’t protect fish that never reach the 18 flowing miles of the Calaveras River upstream of Bellota Weir.  One cannot rely on a few very wet water years to get fish into and out of a salmon and steelhead fishery.

In 2006, the State Water Resources Control Board put in abeyance CSPA’s public trust complaint regarding the operation of the Calaveras River, pending the outcome of the HCP.  Since NMFS couldn’t find the courage to require any flow at all to get fish into and out of the Calaveras watershed, it may be time to ask the State Water Board to reopen CSPA’s complaint.

Posted in Chris Shutes, Fisheries | Comments Off on NMFS Gives Stockton East and Irrigators All the Water in the Calaveras River

CSPA Asks San Francisco Water Agency to Withdraw Voluntary Agreement

CSPA and thirteen other conservation and fishing organizations wrote a letter to the San Francisco Public Utilities Commission on September 9, 2020 requesting that the Commission withdraw its support for a proposed Tuolumne River Voluntary Agreement.  CSPA and others also presented the request to the SFPUC meeting the same day.

The request follows a scientific peer review of the fish population models that provide much of the purported basis for the Voluntary Agreement.  The review by Anchor QEA of Seattle reached the following conclusion about the salmon population model developed by the Turlock and Modesto irrigation districts:

The model, as configured, indicates that the status of the Chinook salmon population is extremely precarious and bold actions will be needed to prevent extirpation. This need, according to the model, would best be met by very substantial increases in flow releases during spring (the period of active smolt outmigration from the river). (Peer Review p. 3)

The review also rejected the repeated claim of SFPUC and the irrigation districts that reducing the number of bass and other predatory fish in the Tuolumne River would significantly increase the survival and populations of salmon:

[T]he Chinook salmon production model cannot identify the number of predators that would need to be removed or how much of a reduction in consumption would be required to achieve a significant increase in smolt-to smolt survival. The response from predator control is assumed, not predicted. (Peer Review p. 5, emphasis added)

The September 9 letter from conservation and fishing groups asks the SFPUC:

We urge the Commission to direct SFPUC staff to withdraw the flawed proposal for a Voluntary Agreement on the Tuolumne River and to cease making any claims of fishery benefits from the proposal, which are based on these flawed models. Instead of focusing on ways to reduce the amount of water flowing in the Tuolumne River, we encourage you to work with us to find ways to support investments in local and regional water supply projects that would create good paying local jobs, improve the resiliency of the water systems, and help sustain the economy with reduced diversions from the Tuolumne River. Across California, many water agencies are far ahead of the SFPUC in making these investments.

The SFPUC commissioners agreed to agendize the peer review at a future meeting.

The letter to SFPUC was updated on September 14 to reflect the addition of the Nature Conservancy as the fifteenth signatory.  Otherwise, the letter was unchanged from September 9.  The updated letter is available here:

Final Letter to SFPUC re peer review and Tuolumne VA 9-14-20.

Posted in Chris Shutes, Hydroelectric (FERC), State Board Bay-Delta Standards | Comments Off on CSPA Asks San Francisco Water Agency to Withdraw Voluntary Agreement

CSPA Sues FERC over Waiver of Clean Water Act

CSPA and three other non-profit groups have sued the Federal Energy Regulatory Commission (FERC) in the Federal Appeals Court 9th Circuit in defense of the State of California’s authority to protect the Yuba and Bear Rivers.  The lawsuit is the latest chapter in CSPA’s concerted opposition to FERC’s serial “waivers” of the application of Clean Water Act Section 401 to the issuance of FERC licenses for California hydropower projects.  (For description and discussion, see previous posts here and here).  Hydropower licenses have a term of 30 to 50 years.

CSPA is joined in the legal challenge by the South Yuba River Citizens League, Friends of the River, and the Sierra Club and its Mother Lode Chapter.

Press ReleaseYuba-Bear Petition for Review.

Posted in Chris Shutes, Hydroelectric (FERC) | Comments Off on CSPA Sues FERC over Waiver of Clean Water Act

Landmark Lawsuit Settlement Between CSPA and State Water Board to Protect Public Trust Fisheries

On 17 July 2020, shortly before trial, CSPA and its partners, California Water Impact Network and AquAlliance, settled a contentious 2015 lawsuit against the State Water Resources Control Board (State Board).  The lawsuit alleged that the State Board had embraced a “pattern and practice” that failed: to comply with the Public Trust Doctrine; implement Sacramento River temperature management requirements; ensure that fish below dams be maintained in “good condition” and maintain minimum Clean Water Act standards in the Delta.  The settlement agreement will greatly increase protection for seriously degraded fisheries by requiring the State Board to follow transparent procedures and to make specific findings in updated Bay-Delta water quality/flow standards and Sacramento River temperature criteria.

Central Valley pelagic and salmonid fisheries have experienced precipitous decline.  The Public Trust Doctrine establishes powerful public property rights in natural resources.  The settlement requires the State Board to conduct a full transparent evaluation of the specific Public Trust factors the State Board will consider and to make specific findings that new Bay-Delta Plan requirements will protect fish and wildlife.

Excessive temperatures have decimated Sacramento River salmonid fisheries.  The settlement agreement requires the State Board to conduct a transparent Sacramento River Temperature Management process that addresses all controllable factors, including deliveries, and ensures adequate staffing, modeling and public review.

Fisheries below rim dams have long suffered from inadequate flow.  Fish and Game Code Section 5937, which requires dam operators to release sufficient flow to keep “fish in good condition,” has long been ignored.  The settlement agreement requires the State Board to specifically evaluate whether Bay-Delta updates are consistent with Section 5937.

Fish and Wildlife have disproportionately suffered during droughts as the State Board has temporarily relaxed water quality standards.  The settlement agreement requires the State Board to conduct a transparent Public Trust analysis for Temporary Urgency Change Petitions.

Jason Flanders and the Aqua Terra Aeris Law Group represented CSPA et al. in this matter.

Settlement Agreement  Press Release  Lawsuit

 

Posted in Bill Jennings, California Delta, Enforcement, Fisheries, State Board Bay-Delta Standards, Water Quality | Comments Off on Landmark Lawsuit Settlement Between CSPA and State Water Board to Protect Public Trust Fisheries

CSPA, Coalition Sues Interior and Westlands Over Long-Term Water Contracts

On 8 July 2020, CSPA and a coalition of fishing organizations sued the U.S. Department of the Interior, U.S. Bureau of Reclamation and Westlands, San Luis and Panoche Water Districts in federal court over a series of interim water service contracts and a series of permanent repayment (or conversion) contracts.  The lawsuit alleges that the decisions by the Bureau allow environmentally harmful diversions by the Bureau’s Central Valley Project of massive quantities of freshwater from the Delta for consumptive use without the comprehensive environmental reviews and requirements required by the National Environmental Policy Act (NEPA) and the Central Valley Project Improvement Act (CVPIA).  The Second Amended and Supplemental Complaint for Declaratory and Injunctive Relief incorporates an earlier 2016 complaint for approval of interim water service contracts and the 2020 reauthorization of the same water service contracts.

The Law Offices of Stephan C. Volker is representing CSPA et al. in this matter.

Contracts Lawsuit

Posted in Bill Jennings, California Delta, Fisheries, Water Quality | Comments Off on CSPA, Coalition Sues Interior and Westlands Over Long-Term Water Contracts

Here We Go Again – FERC Rapidly Issuing Waivers on Water Quality Certifications for California Dams

By Cindy Charles

The Federal Energy Regulatory Commission (FERC) continues to roll out waivers for water quality certifications for dam relicensings in California at an alarming rate.  On June 22, CSPA and allies in the Foothills Water Network[1] (Network) filed another Request for Rehearing on an “Order on Waiver of Water Quality Certification”.  The order was issued in the relicensing of Yuba County Water Agency’s (YCWA) Yuba River Development Project (Project).  The Project occupies waters in the Yuba River watershed.

The Order says that the California State Water Resources Control Board (State Water Board) waived its authority under section 401 of the Clean Water Act (CWA) to issue water quality certification for the relicensing of the Project.  This finding is once again based on the Commission’s recently adopted interpretation of the one-year deadline for a state to act on a request for water quality certification under CWA section 401.[2]  This interpretation reverses the Commission’s longstanding position that an applicant’s withdrawal-and-resubmittal of a request triggers a new one-year period for the State to act.  Whenever implemented, the Commission’s new interpretation of waiver will prevent states from placing conditions in hydropower licenses to protect water quality. FERC licenses last 30 to 50 years.

Prior to June 18th, FERC had issued waivers for the Placer County Water Agency’s Middle Fork American River Project, Southern California Edison’s Big Creek system, PG&E’s Kilarc-Cow Creek Project, and Nevada Irrigation District’s Yuba-Bear Project.  On June 18th, FERC issued waivers for Merced Irrigation District’s Merced River and Merced Falls projects and for South Feather Water and Power Agency’s South Feather Project.  This brings to seven the number of FERC orders waiving Section 401 certification in California since the Hoopa Valley decision in January 2019.

In the Rehearing Request for the YCWA project, the Network argues that YCWA, not the State Water Board, has delayed certification.  YCWA committed to act as lead agency under the California Environmental Quality Act (CEQA) for preparing the environmental document required to support the State Water Board’s certification.  In the three years since it filed its first 401 request, YCWA did not begin, let alone complete, the CEQA process.  YCWA argued that the State Water Board should bear the consequences for YCWA’s failure to prepare the CEQA document, and FERC agreed.

The Rehearing Request argues that waiver is not warranted because, unlike the Hoopa Valley decision, there was no written agreement between YCWA and the State Board to not process a 401 certification request.  The record does not show the State Water Board was unwilling to act on YCWA’s 401 request once YCWA submitted the CEQA document that was a prerequisite to the State Water Board’s action.

Further, the license is not ready for final decision.  FERC staff’s own delay in preparing a biological assessment to inform the required Endangered Species Act consultation for the Project has delayed consultation with the National Marine Fisheries Service regarding the Project’s potential adverse effects on federally-listed spring-run Chinook salmon, steelhead, and green sturgeon.  Thus, the certification process by the State Board for the Project has not contributed to actual delay in the relicensing proceeding.

The Network requests that FERC reverse its determination that the State Water Board waived its 401 authority in this relicensing and direct YCWA to complete the CEQA document that is necessary for the Water Board to act on a certification request. Further, the Network requests that FERC direct YCWA to submit a new request for water quality certification within 30 days of YCWA’s certification of the final CEQA document.

 

[1] The Foothills Network is comprised of American Rivers, American Whitewater, California Outdoors,California Sportfishing Protection Alliance, Friends of the River, Gold Country Fly Fishers, Northern California Council of Fly Fishers International, Sierra Club Mother Lode Chapter, South Yuba River Citizens League, and Trout Unlimited.

[2] Interpretation relies on the U.S. Court of Appeals for the D.C. Circuit’s (D.C. Circuit) decision in Hoopa Valley Tribe v. Federal Energy Regulatory Commission (Hoopa Valley) issued January 2019.

Posted in Water Quality | Comments Off on Here We Go Again – FERC Rapidly Issuing Waivers on Water Quality Certifications for California Dams

Assemblymember’s Trojan Horse Hides Real Need for Section 401 Trailer Bill

It’s a pretty sweet deal when you don’t do your homework for five years and then get the principal to say you don’t have to do it at all, and, by the way, we’re retroactively giving you an “A” in the course and firing the mean old teacher.  It’s exactly this kind of gaming the system that a trailer bill now in the State legislature is meant to prevent.

The trailer bill (at this moment, part of AB-92) would allow the State Water Board to make sure that federal licenses protect water quality in California.  It responds to recent efforts to make it procedurally impossible for the State Water Board to meet deadlines under Section 401 of the Clean Water Act.  Section 401 allows the State Water Board to place conditions in new licenses that the Federal Energy Regulatory Commission (FERC) issues every thirty to fifty years for hydroelectric projects.

More specifically, the trailer bill would allow the State Water Board to issue a Section 401 “water quality certification” for a new hydropower license before environmental review under the California Environmental Quality Act (CEQA) was complete.  It would also allow the State Water Board to modify the certification after a final CEQA document was issued.  The substance of review would not change.  What would change would be the sequence so that the Water Board can meet someone else’s deadlines.

Assemblymember Adam Gray from Merced published an op-ed on June 22 opposing the trailer bill  (“A Trojan Horse with a State Water Grab Inside“).  Mr. Gray opposes the bill that would give the State Water Board the tools it needs to meet its deadlines.  Without those tools, it will be harder for the State Water Board to place conditions in hydropower licenses that irrigation districts in his assembly district are currently seeking from FERC.

The need for the trailer bill has arisen because FERC recently started over-relying on a court decision to “waive” Section 401 certifications that are not issued within a one-year deadline, no matter why.  FERC’s disturbing new practice began over a year ago.

The need also arises from California law.  In California, issuance of a Section 401 certification requires CEQA.  When an agency of the state, like an irrigation district, seeks a new FERC license, it can choose to be the lead agency for CEQA to support Section 401.  Both Merced Irrigation District, for the Merced River Project, and Turlock and Modesto irrigation districts, for the Don Pedro Project, chose to be lead agencies for CEQA as part of their responsibilities during their FERC relicensings.  However, none of them have even started, let alone finished, CEQA.  Without CEQA to support a Section 401 decision, the State Water Board cannot act.

Even worse, Merced Irrigation District, after delaying CEQA for five years, asked FERC to waive certification for its project because the State Water Board had taken too long!  Just last week, FERC actually agreed and waived certification for Merced’s project.

Opposing the trailer bill is not about protecting the “public participation” that CEQA provides, as Mr. Gray frames it.  It is about exploiting a procedural loophole so an irrigation district can skate.

The legislature should not allow itself to be confused about how the Section 401 trailer bill would protect state law and water quality.

Posted in Chris Shutes, Hydroelectric (FERC) | Comments Off on Assemblymember’s Trojan Horse Hides Real Need for Section 401 Trailer Bill

CSPA Defends Cold Water for North Fork Feather River Trout

CSPA and American Whitewater (AW) have defended proposed measures to keep summer water temperatures in the North Fork Feather River cold enough for trout.  The defense came in comments to the Federal Energy Regulatory Commission (FERC) in opposition to a petition by PG&E to waive water quality certification for PG&E’s Upper North Fork Feather Project (Project 2105).

Relicensing of Project 2105 wrapped up fifteen years ago with a partial settlement agreement.  The Project 2105 Settlement left water temperature unresolved.  FERC left any water temperature improvements to the State Water Board and its water quality certification for the relicensing (certification under the Clean Water Act that the new license would comply with water quality law).  On April 24, 2020, as the State Water Board was on the cusp of issuing a draft certification and a revised draft environmental impact report (EIR), PG&E petitioned FERC to “waive” the certification for procedural reasons.  The State Water Board issued its Draft Certification and Revised Draft EIR on May 15, 2020.  Unless FERC were to reverse its position from fifteen years ago, waiver would mean that water temperatures in most of the North Fork would remain too warm in the summer for trout for the next forty to fifty years.

CSPA and AW’s comments state: “It is fair to say that Project 2105 and associated PG&E projects in the North Fork Feather River watershed could not have been designed to heat up water more efficiently than they do under their present-day configuration.”  The comments document how existing conditions in the North Fork Feather violate the Central Valley Region Basin Plan.  Project 2105 heats water in excess of standards and leaves water too warm to support cold freshwater habitat.

The State Water Board’s Draft Certification would require that PG&E improve water temperatures in the North Fork Feather by releasing more water in summer into the river, instead of bypassing the river through PG&E’s upper power system. The Draft Certification abandons the idea of a “thermal curtain” at Lake Almanor.  The thermal curtain was a proposed engineering addition to PG&E’s power intake that local residents and anglers universally reviled because of impacts to the trout fishery in Lake Almanor.

CSPA and AW, consistent with previous comments from Plumas County, also call on FERC and the State Water Board to require a new facility that would add oxygen to the cold water in Lake Almanor.  Much of the cold water in Lake Almanor has too little dissolved oxygen to support trout.  In the summer, this leaves trout the Hobson’s choice of water that’s too warm but has enough oxygen or water that’s cold but without enough oxygen.  An oxygenation facility called a “Speece Cone” is successfully used by East Bay MUD at Camanche Dam.  A similar facility could be installed and operated at Lake Almanor with funds already allocated for improving coldwater habitat.

PG&E and FERC need to protect coldwater habitat for the trout in the North Fork Feather River and Lake Almanor.  The best way to do that is to let the water quality certification for Project 2105 stand and to implement an oxygenation facility at Lake Almanor.

Posted in Chris Shutes, Hydroelectric (FERC) | Comments Off on CSPA Defends Cold Water for North Fork Feather River Trout

Help Us Tell Governor Newsom We’ve Waited Long Enough—The SF Bay-Delta is in Serious Peril

 

We need your help to ask Governor Newsom to urge the State Water Board to move forward on the update of the Bay-Delta Quality Control Plan.

San Francisco Bay and Delta ecosystems are near collapse.  The Voluntary Agreements process has failed.  We need the State Water Board to quickly resume its approved plan to implement the San Joaquin River objectives and adopt and implement Sacramento River and Delta objectives as soon as possible.

Tell the Governor we can’t wait any longer to take action to protect the San Francisco Bay-Delta.  Take a minute and sign onto the letter several environmental groups will send to Governor Newsom below. 

Signing the letter supports CSPA and our decades-long advocacy to increase Delta inflow and outflow and restore Delta fisheries.

Thank you!

Click here to sign on now!

Letter to Governor Newsom:

Dear Governor Newsom,

The Bay is in the throes of a man-made crisis. Six Bay fish species are now officially listed as endangered and many others are on the brink. If action isn’t taken soon, the Bay risks becoming a dead zone for the fish and wildlife that have lived here for millennia.

The cause of the crisis is clear, and so is the solution. Fresh water that once flowed from rivers in the Sierra Nevada to the Delta and Bay has been diverted at unsustainable levels. Some rivers lose up to 90% of their flow for human use—and about 80% of that goes to industrial agriculture.

But fish need water to survive. And many other creatures need fish to survive. As fisheries crumble, it sets off a domino effect throughout the food web, starving everything from orcas to ospreys.

People are also affected. California’s fleet of small fishing boats, which depends on production of Chinook Salmon in the Bay’s watershed, is flailing, and indigenous people and other subsistence fishing communities are being deprived both of an important food source and their cultural heritage.

For years, you have tried to negotiate a compromise with Big Ag. But the latest draft agreement has died—leaving room for a better approach. It’s crucial that you use this opportunity to protect San Francisco Bay with a plan that’s based on science rather than the demands of powerful water districts.

The good news is that there’s already a plan to stop the looming extinction crisis. The State Water Board’s Bay-Delta Plan would set guidelines to prevent the ecosystem from spiraling into collapse. We are asking you to insist that the Water Board move forward with the Bay-Delta Plan and set freshwater guidelines in our thirsty rivers once and for all.

You have shown great foresight by acting swiftly and decisively in the face of COVID-19. As a result, California has avoided the terrible death toll taking place in other parts of the world and country. Now we need you to apply your leadership to the ecological crisis unfolding in the Bay and Delta. The State Water Board can avert a crisis in San Francisco Bay—in fact, it is legally required to do so. But if you continue to pursue voluntary half-measures, rather than strong protections, soon it will be too late.

Posted in Alerts & Advisories | Comments Off on Help Us Tell Governor Newsom We’ve Waited Long Enough—The SF Bay-Delta is in Serious Peril