CSPA in the News
California State Water Board settles lawsuit with environmental groups – great news for water, fish, and all Californians!Jul 22, 2020 Read Online
- 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
- 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
- A Deal is a Deal – El Dorado Irrigation District Seeks to Add More Diversions from SF American River
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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 (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. 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.
 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.
 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.
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.
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.
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.
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.
A Deal is a Deal – El Dorado Irrigation District Seeks to Add More Diversions from SF American River
By Cindy Charles
CSPA and a coalition of environmental and recreation organizations submitted comments in response to the April 17, 2020 Notice of Preparation of an Environmental Impact Report (EIR) for El Dorado Irrigation District’s (EID) proposed modification of Water Right Permit 21112.
EID proposes to add points of diversion and rediversion to its existing permit. The new points of diversion would be upstream of the heavily used whitewater boating section of the South Fork American River. Nearly 30 years ago, EID, through the El Dorado County Water Agency, formally agreed to divert water exclusively from Folsom Reservoir, which is downstream of the whitewater boating reaches. Now EID is reversing that commitment in seeking upstream points of diversion and rediversion.
Our joint comment letter reminds the current EID management and Board to honor their predecessors’ commitment and not pursue the request to divert water from upstream of Chili Bar Dam.
The letter also states that should EID persist in pursuing the addition of points of diversion and rediversion to Permit 21112, the signatories of the letter plan to protest the District’s petition once it is noticed by the State Water Board. In addition, the letter outlines a number of recommendations a Draft Environmental Impact Report (DEIR) should address if EID moves forward on this project. Some key recommendations include:
- A detailed description, with modeling, of current and future operations under the Proposed Project.
- Disclose and analyze actual and updated estimates of future demand in EID’s service area that would be served by the requested new points of diversion and rediversion.
- Disclose the impacts of the Proposed Project and evaluate mitigations of those impacts. Among the impacts are to Folsom Reservoir, Lower American River, cumulative impacts on the Sacramento River and the Sacramento – San Joaquin Bay Delta, Impacts to lake levels at Silver Lake and Caples Lake. Impacts to whitewater boating, aquatic resources, increased wildfire risks.
- Describe planned or foreseeable future water transfers under the Proposed Project and whether, how and to what degree the requested changes in permit conditions will assist and incentivize transfers of water.
The South Fork of the American River downstream of Chili Bar Reservoir is one of the premier and most used year-around whitewater recreation waterways in the entire United States. It draws rafters and kayakers from around the United States and the world. Such visitation provides a major source of income to El Dorado County businesses. Boating opportunities further upstream, on the South Fork American between Slab Creek Reservoir and Chili Bar Reservoir, are largely dependent on “spill” flows, which could be less frequent and lower in volume under the proposed new diversions.
CSPA is particularly concerned about how the proposed new points of diversion could allow a “county of origin” water right to enable increased water transfers. County of origin filings, such as the one under which Permit 21112 was issued, were established in 1927 to protect mountain and foothill watersheds from losing their water supply to wealthier and at the time more developed urban and agricultural users in the Central Valley and on the coast. Water transfers that the changes to Permit 21112 could enable would likely involve selling water to the very entities from which the county of origin laws originally sought protection. County of origin laws were set up to meet the actual development needs of upcountry counties, not to enable upcountry counties to cash in by diverting more water from the state’s rivers.
 Permit 21112 allows EID to divert up to 17,000 acre-feet per year (AFY) from the South Fork American watershed. Under the Permit, EID stores water in three storage reservoirs high in the watershed: Lake Aloha, Caples Lake, and Silver Lake. At present, the sole point of direct diversion and rediversion in the South Fork American watershed downstream of these storage reservoirs is Folsom Reservoir.
Foothills Network Files for Rehearing of 401 Waiver on Nevada Irrigation District’s Yuba-Bear Project
By Cindy Charles
CSPA and allies in the Foothills Water Network (Network) filed a Request for Rehearing on an “Order on Waiver of Water Quality Certification” for Nevada Irrigation District’s (NID) Yuba-Bear Hydroelectric Project. The Network filed the Request with the Federal Energy Regulatory Commission (FERC) on May 15, 2020.
Section 401 of the federal Clean Water Act requires an applicant to obtain a certification by a state agency that operation of a project under a new FERC license will be consistent with the state’s standards for water quality. In California, the State Water Resources Control Board (State Water Board) is responsible for issuing 401 certifications for hydroelectric projects.
On February 19, 2019, NID requested that FERC “confirm” the State Water Board had waived its 401 authority in connection with the relicensing of the Project. The request relied on the U.S. Court of Appeals for the D.C. Circuit’s decision in Hoopa Valley Tribe v. Federal Energy Regulatory Commission (Hoopa Valley).
Waiver of certification can place a 40-to-50-year restriction on the state of California’s ability to regulate operation of this project on the Middle Yuba, South Yuba and Bear Rivers.
On April 16, 2020, FERC granted NID’s request, relying on Hoopa Valley and its own precedent to find that the State Water Board had waived its 401 authority.
The Network’s main arguments in support of a rehearing include:
1) FERC’s order relies on an expanded reading of the Hoopa Valley decision under an entirely different set of facts. In Hoopa Valley, the court found that resubmissions for 401 certification could not be new requests because PacifiCorp and the States had entered into a written agreement not to process the 401 requests while PacifiCorp and other parties pursued an alternative path to decommission rather than relicense the lower project dams. There was no such written agreement between NID and the State Water Board regarding 401 certifications. NID voluntarily submitted and withdrew certification requests from the State Water Board.
2) California requires an environmental review under CEQA prior to the State Water Board’s action on a 401 certification request. NID chose to be the Lead Agency for CEQA for the 401 certification of its project, but has not even started, let alone completed, a CEQA document, such as an Environmental Impact Report or an Environmental Assessment. Therefore, NID has failed to comply with procedural prerequisites to the State Water Board’s certification decision.
In the Rehearing Request, the Network asks that FERC reverse its determination that the State Water Board waived its 401 authority for purposes of this relicensing, direct NID to complete the CEQA document that is necessary for the State Water Board to act on a certification request, and direct NID to submit a new request for water quality certification within 30 days of NID’s certification of the final CEQA document.
Letter Sent to Governor – Preserve the Application of the Clean Water Act to California’s Hydroelectric Projects
By Cindy Charles
CSPA, as a leading member of a coalition of environmental and fishing organizations, sent a joint letter to Governor Newsom on May 11, 2020 urging his Administration to prioritize action on an urgent threat to California’s rivers, streams, and aquatic life. The increasing avalanche of efforts by the Federal Energy Regulatory Commission (FERC) to waive Section 401 water quality certifications under the federal Clean Water Act (CWA) for FERC-licensed hydroelectric projects will lead to long term damage of our rivers and fisheries.
Section 401 of the Clean Water Act gives states a once-in-a-generation chance to place conditions on hydropower projects that aren’t owned by the federal government. Under CWA Section 401, a federal agency may not issue a permit or license to conduct any activity that may result in a discharge into waters of a state unless the state issues a Section 401 water quality certification. The state determines if the discharge will comply with the state’s approved water quality plans and laws. The certification can include specific conditions related to water quality requirements that automatically become conditions in the federal license or permit.
FERC licenses run 30 to 50 years. Many FERC licenses now in effect for hydroelectric dams in California were granted prior to the adoption of the Clean Water Act in 1972. Today, when there are multiple new FERC licenses pending in California, agencies of the federal government are attacking California’s ability to issue or deny Section 401 water quality certifications. If these federal efforts are successful, California will be excluded from ensuring that dams with wide-reaching impacts on rivers meet state water quality standards for still another 30 to 50 years.
A January 2019 D.C. Circuit Court decision (Hoopa Valley Tribe v. FERC) found that California’s State Water Board and the Oregon Department of Environmental Quality had waived their right to issue Section 401 certifications for the Klamath River Project. The Court found that a written agreement to delay certification between the project operator and the states of California and Oregon, in order to complete settlement, violated the Clean Water Act’s requirement to complete certification in one year. The Court found that the practice of the Klamath applicant of withdrawing and resubmitting its applications prior to each one-year deadline in order to avoid the states’ deadline to act, in the context of an agreement to have an “indefinite” delay, prevented FERC from exercising its authority to issue hydropower licenses. Since that time, FERC has applied an overly broad reading of this court decision and imposed a narrow interpretation of the CWA’s one-year deadline in a raft of relicensing proceedings, none of which had an agreement like that for the Klamath Project.
FERC has declared waiver of certification for Nevada Irrigation District’s Yuba-Bear Project on the Middle Yuba, South Yuba and Bear Rivers, Placer County Water Authority’s Middle Fork American River Project, PG&E’s Kilarc-Cow Creek Project, and six projects belonging to Southern California Edison on Big Creek.
Meanwhile, the Environmental Protection Agency under the Trump administration’s leadership has almost completed a rulemaking that would eliminate many Clean Water Act protections. If implemented, the new rule would weaken the scope of certification, allow federal agencies to overrule the states, and allow federal agencies to create and enforce process requirements and deadlines that will hamstring states in completing their work. (See previous post: http://calsport.org/news/hydropower-reform-coalition-opposes-another-trump-administration-attack-on-the-clean-water-act/)
The May 11 letter to the Governor urges his Administration to: (1) oppose federal regulatory changes that would remove or limit Section 401 water quality certifications from hydroelectric dam licensing or relicensing, (2) challenge pending and current waivers, and (3) urge state legislative action to defend the Clean Water Act and prevent future waivers of California’s authority to issue Section 401 water quality certifications.
Now, more than ever, California needs to defend and enforce its water quality standards.
For the complete letter go here.
Risky Business Again – Merced Irrigation District Selling Water Out of District in Critically Dry Year
By Cindy Charles
In March, Merced Irrigation District (Merced ID) filed a petition with the CA State Water Board (Board) for a temporary change to transfer up to 45,000 acre-feet of water to out-of-district water agencies. Merced ID plans to sell its water even though the San Joaquin Index shows us in a Critically Dry Year for 2020. CSPA filed protest comments with the Board against approval of the sale. CSPA argues that this water sale will not best serve the public interest, is contrary to law and will have adverse environmental impacts. Merced Irrigation District seeks to sell water in the Critically Dry 2020 water year to make up for budget shortfalls. As revenues from the sales of electricity continue to fall, revenues from irrigation water sales are inadequate to cover costs, including an ever-increasing pension liability.
The Board of Directors of the Merced Irrigation District was well aware of the likelihood of very low inflows to its reservoirs, as documented in Board Meeting Minutes from several meetings in early 2020. In addition, Merced ID’s approved fiscal 2021 budget states that Lake McClure is anticipated to be at minimum pool level at the conclusion of the 2020 irrigation season.
By petitioning for a water transfer to out-of-district buyers, Merced ID is gambling that next year’s precipitation will backfill storage in Lake McClure. The proposed transfer will deplete carryover storage to the greatest allowed degree. We already have seen what happens to Merced ID in this circumstance.
In 2012-2014, Merced gambled that precipitation in a following year would backstop depletion of its stored water. Following decisions on how much water to deplete from storage in 2012 and 2013, Merced ID was left with almost no water to deliver in 2014; Merced ID applied for a variance to its instream flow requirements and carryover storage minimum in Lake McClure, and had to rescue the remaining O. mykiss (rainbow trout/steelhead) in the lower Merced River as water temperatures reached lethal conditions there.
In addition to its water storage challenges, Merced Irrigation District overlies a critically over drafted groundwater basin. In a 2017 letter to the State Water Board opposing the update of the Bay-Delta Water Quality Control Plan, Merced ID argued that increasing flows in the lower Merced River would worsen the conditions of the groundwater basin. The proposed transfer will take water out of a critically over drafted groundwater basin in a Critically Dry year—another risky decision.
If water year 2021 is a Dry or Critically year, Merced ID will likely not have sufficient water to meet its instream flow needs or to maintain water temperatures in Lake McClure sufficient to keep fish in the lower Merced River in good condition downstream of Crocker-Huffman Dam. We’ll likely see another emergency fish rescue then.
Merced ID has got to stop relying on out of district water sales to balance its finances. The reliance on regulatory variances and waivers during dry year sequences as an accepted business practice is contrary to the public interest and is detrimental to the environment.
For the full comment letter click here http://calsport.org/news/wp-content/uploads/CSPA-Protest-Merced-ID-Transfer-Final-043020.pdf
 MID proposes to transfer the water from July 2020 through September 2020 to the following agencies: Santa Clara Valley Water District, Belridge Water Storage District, Berrenda Mesa Water District, Dudley Ridge Water District, Lost Hills Water District, and Wheeler Ridge-Maricopa Water Storage District.
CSPA has identified 69 issues that the Department of Water Resources (DWR) must confront in its forthcoming Environmental Impact Report (EIR) for the new incarnation of its “Delta Conveyance” project. Delta Conveyance means a proposed tunnel under the Sacramento-San Joaquin River Delta that would move water from northern California south. CSPA expects to oppose the as yet unbranded Delta Do-Over as vigorously as CSPA opposed its predecessors, the “Bay-Delta Conservation Plan” and the “California WaterFix.”
CSPA made its recommendations in an April 17, 2020 comment letter in response to the Notice of Preparation of the EIR. The Notice of Preparation initiates the “scoping” process of the California Environmental Quality Act, or CEQA. CSPA filed its scoping comments jointly with California Water Impact Network, AquAlliance and California Water Research.
CSPA comments that the new Delta Conveyance Draft EIR must describe changes that new conveyance will cause to the operation of upstream reservoir (Trinity, Shasta, Oroville, Folsom). DWR’s previous EIR for WaterFix said there wouldn’t be any changes, as does DWR’s January 2020 EIR for the long term operation of the State Water Project. CSPA, along with many water users upstream of the Delta, argued during the WaterFix hearings in 2016-2018 that DWR would hold less water in reservoirs when the new tunnels made it easier to ship more water south.
CSPA’s letter states that the Draft EIR must clarify the role of the Bureau of Reclamation, a federal agency, in the new Conveyance. The Draft EIR must state whether Reclamation as a participant will comply with California law, and how DWR will assure such compliance. Reclamation and California agencies are currently disputing how and when California law applies to Reclamation.
Many of CSPA’s comments are directed at avoiding a repeat of the multi-year game of hide the ball that DWR went through for the previous tunnel project, California WaterFix, and its predecessor, the Bay-Delta Conservation Plan. The dynamic of rushing ahead and then trying to correct in mid-process led to two separate EIR’s for different versions of tunnel projects, plus a supplement, over the course of six years. DWR painted undeveloped and changing pictures of its project, and then asked the public to ‘trust us’ on the unclear and incomplete issues.
CSPA’s final recommendation is a plea for a wholly new document:
[T]he DEIR must be a stand-alone document that does not rely on references to previous iterations of CEQA documents for the Bay-Delta Conservation Plan and/or the “California WaterFix.”… Previous EIR’s and supplements for the Bay-Delta Conservation Plan and California WaterFix are 90,000 pages in volume and were already daunting due to the difficulty in understanding which sections which were superseded by subsequent documents. Retention of previous CEQA documents would force even a well-informed reader to conduct a treasure hunt through earlier documents to extract pertinent information.
The Draft EIR is expected in 2021.
CSPA and allies in the Foothills Water Network have filed a Response in Opposition to Yuba Water Agency’s Request for Waiver of water quality certification for the Yuba River Development Project. The Network filed its letter with the Federal Energy Regulatory Commission (FERC) on April 2, 2020. Waiver of certification would place a 40-to-50-year restriction on the state of California’s ability to regulate operation of this huge hydroelectric project on the Yuba River.
FERC is conducting a proceeding to relicense the Yuba River Development Project. The applicant to relicense the project is Yuba Water Agency (formerly and still referred to by FERC as Yuba County Water Agency, or YCWA). Section 401 of the federal Clean Water Act requires an applicant to obtain a certification by a state agency that operation of the project under a new FERC license will be consistent with the state’s standards for water quality and protection of “beneficial uses.” Section 401 allows the state to place conditions in the FERC license to assure this consistency and protection. In California, the State Water Resources Control Board (State Water Board) is responsible for issuing 401 certifications for hydroelectric projects.
The Clean Water Act imposes a one-year deadline for a state to issue a 401 certification. Failure to meet the deadline results in “waiver:” the state loses its chance to place conditions in the FERC license. The statute itself does not define when the one-year clock starts. In the past, FERC had a de facto policy of allowing applicants to withdraw applications for certification and resubmit them before the clock ran out. This avoided denial of certification by the state.
In January 2019, the U.S. Court of Appeals in Washington D.C. found in Hoopa Valley Tribe v. FERC that the State Water Board had waived its right to issue certification for the Klamath River Hydroelectric Project. The Court held that the State Water Board had made an illegal agreement with the owner of the Klamath project to delay certification to allow time for parties to complete a settlement of issues.
Since the ruling in Hoopa Valley Tribe v FERC, FERC has issued a series of orders expanding the application of the Court’s decision. FERC has found that when applicants withdrew and resubmitted applications for certification, this amounted to waiver, even without an explicit agreement between applicant and the certifying state agency. FERC has applied its new criteria retroactively, even for cases when states had already issued certifications.
YCWA’s Request for Waiver joined the parade of filings by hydropower operators that seek to avoid state oversight. But YCWA has a problem. Issuance of a 401 certification requires analysis under the California Environmental Quality Act (CEQA). YCWA chose to be the Lead Agency for CEQA for the 401 certification of its project. That means it promised to produce a CEQA document, such as an Environmental Impact Report or an Environmental Assessment. But YCWA has not even started, let alone completed, a CEQA document to support the State Water Board’s decision on 401 certification.
The Foothills Water Network’s comments therefore conclude:
The record shows that the State Water Board has diligently acted in processing YCWA’s application. Contrary to YCWA’s assertions, the current delays in the 401 proceeding are due to YCWA’s failure to provide information necessary to fully evaluate the Project’s potential impacts on water quality over the term of any new license by preparing the environmental document required under state law.
The Commission should find that the California State Water Resources Control Board has not waived Clean Water Act § 401 Water Quality Certification for the relicensing of the Yuba River Development Project. On the contrary, the Commission should order YCWA to complete CEQA and submit a new application with a completed CEQA document forthwith, or, in the alternative, deny YCWA’s application for relicensing the Yuba River Development Project for lack of diligent prosecution.
 For a description of other such requests and CSPA’s earlier responses, see CSPA Defends Section 401 of the Clean Water Act at: http://calsport.org/news/wp-content/uploads/bsk-pdf-manager/2019/12/2019-08-Summer-Edition.pdf
The Hydropower Reform Coalition submitted comments on March 10, 2020 in opposition to proposed changes to the implementation of the National Environmental Policy Act (NEPA). The Coalition’s comments state that the proposed new NEPA rule would make analysis worse and would harm the environment.
Analysis under NEPA is required whenever there is an action by a federal agency that may have impacts on the environment, including the issuance of permits and licenses. The Trump administration’s Council on Environmental Quality issued the proposed new rule for NEPA in January 2020.
If put into practice, the proposed new NEPA rule would limit the alternatives to a proposed action that an Environmental Impact Statement (EIS) would have to analyze. In particular, alternatives that would achieve similar outcomes and have fewer environmental impacts would no longer require analysis if they would require actions by third parties.
The proposed new NEPA rule would also eliminate the requirement for an EIS to evaluate the “cumulative” effects of actions, and possibly even their indirect environmental effects. The most frequently cited analysis that this would eliminate from NEPA is the effect of an action in promoting climate change. But there are many more ways in which the proposed rule would limit analysis and thus allow federal actions and decisions to harm the environment.
The Coalition’s comments “use licensing proceedings before the Federal Energy Regulatory Commission (FERC or the Commission) to illustrate the negative impacts certain proposed rules would have on federal administrative proceedings.” For instance: suppose FERC were to limit its NEPA analyses in licensing hydroelectric projects to the requirements of the new NEPA rule. This would put FERC’s NEPA analysis in conflict with FERC’s Federal Power Act responsibilities to evaluate each “waterway” in issuing each project license (even when parts of the waterway are outside the area of one hydropower “project”). Under NEPA, this would be a “cumulative” effect, no longer required under the new rule. The Coalition’s comments use real world examples to describe how following the new NEPA rule would let utilities and FERC off the hook for evaluating the effects of power projects and licensing decisions.
The Coalition’s comments also point out that the new NEPA rule would present similar conflicts with other cornerstone environmental laws like the Endangered Species Act.
Water Power Law Group drafted the Coalition’s comments, with assistance from CSPA and American Whitewater.
Read the Hydropower Reform Coalition’s comments on the proposed NEPA rule here.
CSPA also signed on to comments drafted by the Center for Biological Diversity in opposition to the proposed NEPA rule; those comments are posted here.
One of California’s premier annual gatherings of fisheries restorationists, scientists and advocates has been postponed indefinitely in order to protect public health. The conference of the Salmonid Restoration Federation (SRF) planned for March 31-April 3 in Santa Cruz will not take place as scheduled.
The annual conference is SRF’s biggest single annual activity. It provides a very important opportunity to meet with other people who devote their lives and careers to improving California’s fisheries and to share information and recent experiences.
I have been a presenter on behalf of CSPA at two of the three most recent conferences, and was on tap to present at this one. I am hopeful that I will still have the opportunity later this year. In the meantime, I am donating my conference fees to the Federation to help the Federation continue its work in bringing together California’s community of fish protectors in the future. I encourage others to do the same.
- Chris Shutes
Water in California is overallocated and overappropriated. Too much is promised, too much is delivered, and not enough is left in rivers and in the ground. The result is ecosystem collapse, sinking land and dry wells, and dying communities in diverse parts of the state.
The Governor directed in April 2019 that three of his cabinet secretaries create a California Water Resilience Portfolio. He directed that they start with an inventory and assessment of California’s present and future water supplies and demands. But the Draft Portfolio that the state issued on January 6, 2020 makes no basic accounting of California’s structural and systemic water debt. The Portfolio with no water budget presents a limited, confusing inventory and no assessment.
CSPA’s comments on the Draft Portfolio recount how the century-long effort to support unsustainable water use has fed a cycle of water supply projects that have created even greater demand. To create water resilience in California through the 21st Century, the state must bring its water demands into balance with its ability to meet them.
Adding a series of good projects to a portfolio founded on water debt does not balance or offset the fundamental structural problem of California’s overallocated and overappropriated water system. The Draft Portfolio proposes many actions that in and of themselves would be good things to do. But even as the state may do some of those good things, implementation of the Draft Portfolio will increase the systemic pressure to divert more water. In both the long and the short terms, that will defeat the broad goal to “protect and enhance natural systems.”
CSPA comments conclude:
A new draft version of the Water Resilience Portfolio should … perform an inventory and assessment of existing water supply and demand, including a sober analysis of how much water use the state’s resources can consistently support. It should base its projection of future supplies and demands on the premise that California must live within its hydrological means. It should base its planning on a water budget that California can afford.
CSPA, as part of a coalition of environmental, fishing, tribal and environmental justice groups and businesses, sent a letter to the State Water Resources Control Board on January 17, 2020 urging the Board to move forward on the update of the Bay-Delta Water Quality Control Plan. The letter urges the Board “to implement San Joaquin River objectives and adopt and implement Sacramento River and Delta objectives as soon as possible.”
The Board approved new San Joaquin flow objectives in December 2018, but has made little progress on implementation in order to allow possible modification by a “Voluntary Agreement” (VA). The Board has also delayed action on the Sacramento watershed and the Delta in anticipation of a potential comprehensive Voluntary Agreement.
The January 17 letter recounts the history of delays over more than a decade in updating the Bay-Delta Plan. The letter states that near-term completion of a Voluntary Agreement is very unlikely. It also states: “[S]ince December of 2018, the most significant development regarding the inadequate flow assets in the VA package is a disastrous set of federal biological opinions that – if implemented – would reduce ecosystem flows in the Bay-Delta system. The amount of water and habitat in the current VA proposals is dramatically inadequate.”
The letter concludes: “It is time for the Board to move forward with its own process, as required by law.”
CSPA and California Water Research submitted comments on January 6, 2020 opposing the analysis of the Department of Water Resources (DWR) of proposed future Delta operations. The comments responded to DWR’s Draft Environmental Impact Report (DEIR) for the Long-Term Operation of the State Water Project. The California Water Impact Network and AquAlliance were also on these comments of “CSPA et al.”
DWR’s DEIR analyzes alternatives for rules under the California Endangered Species Act (CESA) that would govern future Delta operations of the State Water Project. These rules will be established in an “Incidental Take Permit,” similar to a Biological Opinion (BiOp) under the federal Endangered Species Act.
In autumn 2019, the Trump Administration’s Department of the Interior and Department of Commerce issued two new Biological Opinions for the operation of the Central Valley Project and the State Water Project. These 2019 BiOps found that Delta operations would not jeopardize threatened and endangered (“listed”) species or adversely modified their critical habitat. These “No Jeopardy” BiOps reversed the Jeopardy findings in BiOps for Delta operations that were issued in 2008 and 2009, when populations of listed species in the Delta were already depressed but were more abundant than they are today.
Following issuance of the 2008 and 2009 BiOps, California issued “consistency determinations” stating that the federal BiOps would protect state-listed species under state law. This time around, the state decided to issue its own document, the Incidental Take Permit. Unfortunately, the alternatives for the Incidental Take Permit that the DEIR analyzes are almost identical to the 2019 Trump Administration BiOps that DWR chose not to rely on.
All of the alternatives in DWR’s DEIR would find that operation of the State Water Project does not jeopardize listed fish species. The alternatives rely on the same “new” science as the science in the federal BiOps, according to which fish in the Delta don’t need more water. The alternatives rely on “real-time” management to shut off the Delta export pumps when listed fish are close by, even though the food that these fish eat is getting exported all the time.
The DEIR doesn’t even discuss how DWR operates the State Water Project’s Oroville Reservoir today, and it ignores how operation of Oroville would change under new rules. Much of the analysis argues that the proposed new operation of the State Water Project won’t make conditions for fish worse than they are today, so the proposed new operation is good enough and does not require additional protective measures. These and many similar defects are recycled from the arguments that DWR made under the Brown administration in the hearings on the “California WaterFix” (twin tunnels under the Delta).
Like the 2019 federal Biological Opinions, the net effect of the new Incidental Take Permit will be to weaken already inadequate protections for fish and the ecosystem and to allow the State Water Project to divert more water. One would hope that DWR could do better than putting a new hat on the Trump administration’s water grab and assault on fish.
 The DEIR is available at: https://water.ca.gov/News/News-Releases/2019/November/Long-Term-Operations-of-State-Water-Project
 See description of CSPA et al.’s comments on the Draft Environmental Impact Statement for the Long-Term Operation of the Central Valley Project and State Water Project at: http://calsport.org/news/a-fresh-disaster-for-fish-bureau-of-reclamations-new-plan-for-long-term-operations-of-the-cvp-and-swp-water-export-business/
 For further analysis of the DEIR, see: https://www.nrdc.org/experts/doug-obegi/why-dwr-helping-trump-weaken-bay-delta-protections
As we wait for the Newsom Administration to unveil the details of its proposed Portfolio Project, with a single Delta tunnel, results of the “Voluntary Agreement” process to replace/argument the existing Water Quality Control Plan proceeding and efforts by the Department of Water Resources and U.S. Bureau of Reclamation (USBR) to increased exports from the Delta, it’s been a hectic period for submitting numerous comments on an array of other critical projects. CSPA and a coalition of environmental, fishing and tribal organizations have submitted extensive comments on an array of pending projects affecting fisheries and water quality. There is a common thread: they all have to do with Central Valley Project (CVP) water diverted from the Delta and/or the discharge of polluted drainage water to the San Joaquin River and Delta. For example,
- On 10 December 2019, the coalition submitted new information on deformities in Sacramento splittail for consideration in the Draft Environmental Assessment (EA) for the proposed 10-year agreement to use the San Luis Drain for discharges to the San Joaquin River.
- On 12 December 2019, comments were submitted on the Draft EA for the CVP Cross-Valley contractors Interim Renewal Water Contracts.
- On 14 December 2019, comments were submitted on the Draft EA for the CVP Interim Renewal Contract for Westlands Water District.
- On 23 December 2019, comments were submitted on the Draft EA on a 10-year agreement for the San Luis & Delta-Mendota Water Authority (SLDMWA) Long-Term Storm Water Management Plan for the Grasslands Drainage Area.
- On 2 January 2020, comments were submitted on the CVP Final Cost Allocation Study.
- On 6 January 2020, comments were submitted on Westlands WD Conversion Contract for 1.15 MAF under the WIIN Act §4011.
- On 7 January, an additional coalition, including CSPA, submitted comments on the Westlands WIIN Act Conversion Contract.
The coalition also submitted 20 December 2019 comments on the Draft Agreement between USBR and SLDMWA for operations and maintenance activities. The coalition had submitted comments back in September 2019 on the Grassland Bypass Project Long-term Storm Water Management Plan EIR Addendum and Initial Study.
The Law Offices of Stephen Volker also submitted a series of comments on behalf of CSPA and others on a number of these issues. For example,
- On 20 December 2019, comments were submitted on the transfer of operation, maintenance and certain financial and administrative activities related to the San Luis and Delta-Mendota Canals, the C.W. “Bill” Jones Pumping Plant in the Delta, Delta Mendota Canal/California Aqueduct Intertie Pumping Plant, the O’Neill Plumping Plant and the San Luis Drain and Associated Works.
- On 23 December 2019, comments were submitted on 10-year use agreement for the SLDMWA long-term storm water manage plan for the Grasslands Drainage Area.
- And, on 24 December 2019, comments were submitted on the WIIN Act Draft Repayment Contracts between USBR and Westlands Water District.
The Law Offices of Stephen Volker had filed a 12 November 2019 CEQA lawsuit on behalf of CSPA and others regarding the Grasslands Bypass EIR Addendum & Initial Study maintaining that the old 2019 EIR/EIS was outdated, the Addendum was inadequate and that a new environmental document needed to be prepared.
Additionally, on 16 December 2019, the Law Offices of Stephen Volker filed an answer to the validation lawsuit, on behalf of CSPA and a coalition of environmental and fishing groups, where Westlands seeks to validate a contract that it is seeking to finalize with the federal government to convert its contract or CVP water deliveries from one that needed to be renewed to a permanent contract that would no longer need to be renewed. In effect, the new deal with the federal government would cement Westland’s CVP water deliveries at very favorable terms to Westlands. If unopposed, validation would subvert federal and state environmental laws, including the obligation of Westlands to comply with statutory requirements and the ability and rights of the public to participate in a review process of the contract and challenge the contract under relevant environmental laws. Others joining in answers to the validation complaint included: San Joaquin and Trinity Counties, the Hoopa Valley Tribal Council, South & Central Delta Water Agencies and a coalition of other public interest groups.
Lastly, on 20 December 2019, the Ninth Circuit Court of Appeals issued a revised final ruling on our lawsuit against USBR and SLDMWA regarding the discharge of highly polluted agricultural wastewater to the San Joaquin River. The lawsuit alleged that discharges of agricultural water that was comingled with water from other sources does not meet the irrigated runoff exemption from requirements to obtain a federal Clean Water Act permit. This resounding victory has implications for agricultural discharges throughout the Valley. CSPA and co-plaintiffs were represented by the Law Offices of Stephen Volker.
CSPA, the Tuolumne River Trust, Golden West Women Flyfishers and two unaffiliated Bay Area advocates (“TRT et al.”) continue to make the case that the City of San Francisco and its wholesale agency can both protect their water supply and release more water to the lower Tuolumne River.
In a December 30, 2019 comment letter to the Federal Energy Regulatory Commission, TRT et al. responded to recent comments by the City and by the Bay Area Water Supply and Conservation Agency (BAWSCA). BAWSCA is a wholesale agency that distributes water from the City’s facilities to 26 local water agencies in the Bay Area.
For many years, the City and BAWSCA have sought to limit flow increases into the lower Tuolumne River. TRT et al. write in response that the City and BAWSCA (and FERC) should evaluate lower demand scenarios, including modeling their demand at the highest level it has been over the last five years. The City and BAWSCA insist on starting evaluation of the water supply effects of Tuolumne River flows water using a demand value 20% higher than recent demand. The City and BAWSCA also evaluate projected future demand at a level that is over 30% higher than recent demand.
The letter disputes the value of the City’s very conservative drought scenario. It also points out the failure of the City and BAWSCA to diversify their sources of supply at a scale commensurate with the risk their drought scenario assumes. Finally, the letter uses recent economic growth during a drought to dispute the level of economic impact that the City alleges would occur during droughts if higher flows Tuolumne River were required.
All of the authors of the December 30 letter have sought for many years to find common ground with the City and BAWSCA on improving the Bay Area’s water supply reliability while making meaningful flow improvements in the lower Tuolumne River.
Jim Crenshaw, longtime President of CSPA, suddenly and unexpectedly passed away Thursday, November 28. He had spent Thanksgiving Day with family, the evening with close friends, returned home and passed in his sleep. Jim’s death is a grievous loss to those of us at CSPA, his myriad friends and the environment. Arrangements have not yet been finalized.
Jim had a zest for life and a passionate commitment for whatever he undertook. He never did anything halfway: whether it was motorcycling racing, rugby, whitewater kayaking or fighting for fisheries and the environment; he was always fully committed. And he traveled widely in pursuit of his passions.
A fly fisherman from the age of eight, Jim took over as President of CSPA from founder Roy Haile in 1981 and incorporated the largely volunteer organization in 1983. Over the next four decades, he supervised CSPA’s involvement in literally thousands of formal water rights, water quality, hydropower, environmental review and rulemaking proceedings to protect fisheries. He launched an enforcement campaign that led to more than seven hundred lawsuits to enforce environmental laws enacted to protect fisheries and water quality. A campaign that resulted in cleaner waters, heathier fisheries and, since CSPA cannot accept penalty funds from enforcement efforts, more than eight million dollars directed to foundations for distribution to other worthy environmental organizations.
Mere words cannot describe what Jim Crenshaw meant to CSPA and to me. He recruited me to CSPA in the mid-1980s and for more than thirty years served as a close friend, confidant, mentor and inspiration. He was an activists’ activist: loyal, contagiously funny and relentlessly fierce in protecting fisheries. The environment had no better friend and its despoilers no greater foe than Jim Crenshaw.
CSPA extends its deepest sympathy to Jim’s family, including his sons William and David. It is particularly tragic that Jim was a week or so away from experiencing the birth of his first grandchild. Jim’s legacy will be cherished and serve as a beacon for CSPA’s continuing commitment to protect fisheries, water quality and the environment.
On November 14, 2019, CSPA filed comments critical of a new Habitat Conservation Plan for the Calaveras River and also filed comments critical of a supporting environmental review document. Stockton East Water District (Stockton East) and the National Marine Fisheries Service (NMFS) released the Plan and the supporting environmental review document on September 30, 2019. The release of the Plan came just under 14 years after CSPA filed a public trust complaint with the State Water Board over harm to fisheries in the Calaveras River. The 2019 Plan proposes to devote not a single drop of water to fish that water users on the Calaveras River can otherwise use for water supply.
CSPA’s 2005 complaint to the State Water Board over harm to Calaveras River fisheries alleged:
- Large diversion dams blocked upstream and downstream passage of salmon and steelhead on the Calaveras River.
- Diversion intakes sucked juvenile fish out of the river.
- Flows in the upper river sometimes dropped to lethal levels.
- The only flows that allowed fish to navigate the most downstream 24 miles of the river were flood control releases from New Hogan Reservoir that couldn’t be used for water supply.
In 2006, the State Water Board put CSPA’s complaint in “abeyance” until Stockton East, the main operator of Calaveras River water, and NMFS could complete a “Habitat Conservation Plan” that would hopefully address conditions in the lower Calaveras River. A Habitat Conservation Plan is a plan under the Endangered Species Act that allows “take” of protected species in exchange for specific commitments to undertake “conservation strategies” and “avoidance measures” that will protect those species.
Between 2005 and 2019, Stockton East made some temporary improvements. Stockton East more consistently released a little more water from New Hogan Dam during the October-April non-irrigation season. It made temporary improvements for fish passage at Bellota Weir, Stockton East’s big diversion at River Mile 24 that provides water to the city of Stockton. Stockton East and others managed flood control releases to provide longer windows of opportunity for salmon and steelhead to move into and out of the river. In addition, the California Department of Water Resources led teams that completed fish passage improvements at three major barriers downstream of Bellota Weir.
The 2019 Calaveras River Habitat Conservation Plan
On September 30, 2019, Stockton East and NMFS released the long awaited Habitat Conservation Plan. After 14 years that included no substantive consultation with CSPA, CSPA (and others) had 45 days to comment on the Plan itself and on the environmental review document that accompanied the Plan.
CSPA’s comments on the Plan criticize:
- The Plan’s overly conservative minimum flows in dry year conditions
- The Plan’s decision to permanently write off the Old Calaveras River channel as habitat for juvenile salmon in particular, and failure to use the channel to provide year-round flow into and through the city of Stockton
- The Plan’s decision not to require pulse flow releases from storage to improve salmon and steelhead migration; flood control releases would remain the only opportunities for salmon and steelhead to migrate into and out of the Calaveras River watershed
- The Plan’s lack of certainty, timelines and funding for many physical fish passage improvements
CSPA’s comments on the Plan support the Plan’s measure to permanently upgrade infrastructure at Bellota Weir. The upgrades would improve upstream passage of adult salmon and steelhead and reduce entrainment of these species’ juveniles. CSPA’s comments on the Plan include as an attachment CSPA’s 2005 Complaint to the State Water Board on the Calaveras River.
CSPA’s comments on the environmental review document for the Plan criticize:
- The document’s failure to disclose significant environmental impacts of the Plan and Stockton East’s covered operations
- The failure of Stockton East and NMFS to produce an Environmental Impact Statement/ Environmental Impact Report (EIS/EIR, as opposed to the chosen more cursory Environmental Assessment/Initial Study), in light of the significant impacts
- The document’s failure to evaluate Stockton East’s planned changes in Calaveras operations that will reduce the “flood control releases” that provide the only migration opportunities for salmon and steelhead
- The document’s failure to analyze sufficient alternatives
- The document’s failure to adequately discuss regulatory requirements that affect the Calaveras River
- The document’s failure to carry out a public trust analysis
CSPA asks Stockton East and NMFS to withdraw the existing environmental review document, to prepare and circulate an EIS/EIR for the Plan, and to revise the Plan based on the analysis in the EIS/EIR.
The Broader View: The Calaveras Habitat Conservation Plan Does Not Speak Well for Voluntary Agreements
Many people criticize CSPA for preferring regulatory or judicial strategies to collaborative stakeholder engagement on California’s water issues. That characterization has some validity, but it is not always true. CSPA engages in many stakeholder processes, but generally with these caveats: 1) CSPA is more likely to engage in a collaborative process if it is initiated by a forcing mechanism, like a judicial order or a pending regulatory action. 2) CSPA needs to be asked or allowed to participate. 3) The process must be an open public process; besides being an important principle, this allows straightforward pursuit of a regulatory or legal option if a process does not lead to agreement. 4) There has to be a reasonable opportunity to achieve CSPA’s goals within the process, at least in significant part. 5) There has to be a defined timeline; too many processes are just vehicles for delay.
CSPA’s position in relation to the Calaveras Habitat Conservation Plan provides good insight into the benefits and pitfalls of collaborative processes. 1) It was a regulatory action by CSPA that precipitated the development of the Habitat Conservation Plan for the Calaveras River in the first instance; chalk one up for regulatory process. 2) As far as anyone at CSPA can recall, CSPA was not invited to participate in developing the Plan. 3) When over the past two years CSPA asked NMFS staff about the progress of the Plan, NMFS staff was congenial and glad to discuss general process but declined to provide details of the Plan as it stood at the time. In other words, the process to develop the Plan was less than public. 4) Judging from the description in the Plan, there was never any intent to use any water for fish that Stockton East could not otherwise capture or use for water supply. So even had CSPA started in the process, it is likely CSPA would have withdrawn once the zero-new-water policy became evident. 5) It took almost 14 years to develop a Plan. While CSPA allowed other actors to work things out, regulatory process at the State Water Board stood still.
This is not a strong argument for what current terminology calls “voluntary agreements.” The product of close to 14 years behind closed doors is not enough of an improvement to endorse the outcome. The process was not quicker than regulatory and judicial review, and it is likely that those avenues will need to start again after over a decade of delay.
For good reason, CSPA stays with regulatory processes over decades. CSPA has the institutional memory and the procedural history to outlast water agencies and utilities that through circumstance or intent run out the clock or leave issues buried and forgotten. CSPA is also nimble enough to respond to short-term deadlines on issues whose dormancy has rivaled that of Rip Van Winkle.
What’s Next for the Calaveras River
CSPA hopes for a serious affirmative response by Stockton East and NMFS to CSPA’s comments on the Calaveras River Habitat Conservation Plan and its environmental review.
Barring that, CSPA is looking at dragging its 2005 complaint back before the State Water Board and asking for a hearing. It may take a follow-up regulatory action to finish the job on the Calaveras River.
 The Habitat Conservation Plan and the environmental review documents for it are available at: https://www.fisheries.noaa.gov/action/calaveras-river-habitat-conservation-plan-and-environmental-assessment
 For description of Stockton East’s planned further development of the Calaveras River’s surface water, see: https://woodardcurran-my.sharepoint.com/:b:/p/lmartien/EaWO2iTlI0BCnRF2ZZtewIsBvBcty7m1l6mUr_S_qITnEQ?e=dNgmLE
The Hydropower Reform Coalition (HRC), including CSPA and allied hydropower advocates, has submitted extensive comments in opposition to the Trump Administration’s attack on Section 401 of the Clean Water Act. Trump’s Administrator of the Environmental Protection Agency (EPA) released a new Proposed Rule on August 22, 2019 that would roll back protections for water quality as required in statute and as affirmed in numerous Supreme Court decisions.
Clean Water Act Section 401 places requirements on applicants for a federal license or permit whose activity may cause a discharge into state waters. Such applicants must obtain a certification from the state where the activity occurs that the activity will conform with state laws regarding water quality. For hydropower projects licensed by the Federal Energy Regulatory Commission (FERC), this means that issuance of a certification must occur before FERC can issue a new license for a hydropower project. This is important because the jurisdictional state agencies (in California, the State Water Resources Control Board) generally apply environmental protections that are broader in scope and more stringent than the protections that FERC requires.
The Proposed Rule would reduce the scope of certification, even where previously affirmed in Supreme Court decisions. It would also place procedural requirements that would limit state review and make it more likely that the state’s certification authority would be “waived.” It would even allow federal agencies to overrule the state’s decisions, in explicit opposition to the law as written and as interpreted in the 1997 federal appeals court case American Rivers v. FERC.
In opposition to the Proposed Rule, Water Power Law Group PC and Tarrant, Gillies & Richardson prepared the HRC’s comments. The HRC’s comments demonstrate that the Proposed Rule is unlawful, would disrupt federal licensing proceedings, and would degrade water quality. The comments conclude: “In sum, the Proposed Rule would impede rather than advance the Act’s objective to ‘restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’ Accordingly, the EPA should not pursue the Proposed Rule.”