CSPA in the News
- Court Victory for California Water Quality and Rivers – and CSPA
- D.C. Court Denies Waiver of Clean Water Act for Tuolumne River Hydro Projects; Ruling Vindicates CSPA and Allies
- CSPA Develops and Supports Changes to Hydropower Licensing
- CSPA Objects to Weakened Delta Water Quality without Strict Diversion Limits and a Ban on Transfers
- CSPA Tells Water Board: Limit Shasta Reservoir Releases and Sacramento River Deliveries in 2022 to Save Fish and Water in ’22 and ‘23
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On August 4, 2022, a panel of judges from the U.S. Court of Appeals for the Ninth Circuit overruled the Federal Energy Regulatory Commission (FERC), re-establishing California’s right to protect water quality in the Yuba, Bear, and Merced River watersheds for the next 40 years.
Barring successful appeal, the ruling ends a three-year chapter in CSPA’s hydropower advocacy, one of many protracted detours initiated by an industry that regularly complains how long hydropower licensing takes. For every time the hydropower industry evaluates how to reasonably protect fish and other resources, it uses legal and procedural gambits to argue that those fish and resources are someone else’s problem. It is an established part of a business model.
The immediate actors in these consolidated cases were Yuba County Water Agency, Nevada Irrigation District, and Merced Irrigation District. But they were widely supported by the hydropower industry, including an amicus brief in support those actors from the National Hydropower Association (240 members) and the Northwest Hydroelectric Association (135 members). They were also supported by consultants who specialize in hydropower, one of whom explained to a group of licensing participants, including CSPA, something on the order of: “Well, we’ll just see what FERC says.” Baloney. It was not that innocent.
As part of the licensing process, Section 401 of the Clean Water Act requires license applicants to also request that the state (or in some cases, a tribe) certify that the new licenses will protect water quality as required by state law. The Clean Water Act gives states a year to “act” on certification. In the three cases, the applicants withdrew their requests for certification before one year expired.
FERC found that the California State Water Resources Control Board’s acceptance of the applicants’ withdrawals and some perfunctory procedural emails showed that the state had “coordinated” circumvention of the one-year rule. Relying on a 2019 case called Hoopa Valley Tribe v. FERC, FERC thus held that the State Water Board “waived” its chance to certify the projects on the Yuba and Merced rivers.
The Court disagreed. Writing for the panel, Judge Michelle Friedland wrote:
We agree with the Fourth Circuit’s observation in NCDEQ [a similar case in North Carolina] that “it must take more than routine informational emails to show coordination” because the states’ “rights and responsibilities to ensure compliance with their own water quality standards are too important to be so easily stripped away.” [Citation]. Because the default term of a federal license is forty years, a state’s waiver could result in a hydroelectric project’s being noncompliant with a state’s standards for decades. Considering those dramatic consequences, FERC’s coordination findings cannot rest on such thin evidence as a simple courtesy email reminding an applicant of an impending deadline.
The Court thus ruled FERC’s decision invalid because it was not supported by “substantial evidence.” The Court’s characterization of FERC’s evidence as “thin” is, in CSPA’s view, charitable.
FERC had also said that the applicants’ failure to complete environmental review as required by the California Environmental Quality Act (CEQA) didn’t matter. Again, the court disagreed, stating, “In short, the records in all three orders under review demonstrate that the Project Applicants chose to withdraw and resubmit their certification requests because they had not complied with California’s CEQA regulations.”
The applicants flaunted the rules, and then they tried to skate. The ruling restores process discipline and affirms the overriding rights of states and jurisdictional tribes to protect water quality.
In addition to CSPA, South Yuba River Citizens League, Friends of the River, and the Sierra Club and its Mother Lode and Tehipite chapters were environmental litigants in the cases. Water Power Law Group and the Western Environmental Law Center represented the environmental litigants. They coordinated their cases with the California Attorney General’s Office, appearing on behalf of the State Water Board.
The cases are No. 20-72432, No. 20-72452, and No. 20-72782.
D.C. Court Denies Waiver of Clean Water Act for Tuolumne River Hydro Projects; Ruling Vindicates CSPA and Allies
On June 17, 2022, the U.S. Court of Appeals, D.C. Circuit issued a ruling denying waiver of Section 401 of the Clean Water Act in the licensing of two hydropower projects on the Tuolumne River. Turlock Irrigation District and Modesto Irrigation District (Districts) had petitioned the Court to waive “water quality certification” for the relicensing of their huge Don Pedro Hydroelectric Project and for the original licensing of their smaller La Grange Hydroelectric Project, two miles downstream of Don Pedro Dam.
The ruling means that the California State Water Resources Control Board (State Water Board) maintains its authority to issue mandatory conditions for the two projects, including flow requirements, which must be included by the Federal Energy Regulatory Commission (FERC) in new licenses for the projects. The State Water Board has also said that it may rely in part on these conditions in requiring flows into the lower San Joaquin River under the Bay-Delta Water Quality Control Plan.
The Districts had petitioned FERC on October 2, 2020 to find that the State Water Board had waived certification. As previously reported, CSPA and allied conservation groups vigorously opposed the Districts’ petition. FERC denied the Districts’ petition the day before President Biden took office. The Districts sued FERC on June 2, 2021 when FERC denied the Districts’ appeal on “rehearing.” As also previously reported, CSPA, American Whitewater, Friends of the River, the Sierra Club and its Mother Lode Chapter, and Tuolumne River Trust were granted intervenor status in the Districts’ case before the D.C. Circuit.
The Districts argued before FERC and before the D.C. Circuit that since the State Water Board had twice responded to the Districts’ applications with “denials without prejudice,” the State Water Board had unlawfully “failed to act” on the applications in one year, as required by Section 401. FERC responded that the State Water Board had “acted” in each case by denying the application. A joint brief by Water Power Law Group, Western Environmental Law Center, and the Morrison Foerster law firm on behalf of the conservation group intervenors supported FERC’s denial of waiver.
At oral argument in April 2022, the Districts’ attorneys emphasized that a state agency could hypothetically delay certification, and thus FERC licensing, by a hundred years. The Court, in its ruling, responded in part with a citation to recent case from North Carolina (North Carolina DEQ v F.E.R.C., — F.4th —, 2021 WL 2763265 (4th Cir. July 2, 2021)), which called out the potential for applicant gamesmanship to avoid certification (see previous CSPA discussion of the North Carolina case). The Court also highlighted the fact that the Districts had not even initiated environmental review under the California Environmental Quality Act (CEQA) to support the application for certification, which until summer 2020 had to be completed before the State Water Board could grant certification. And the Court declined to take up the Districts’ secondary arguments.
The June 17 ruling in this case is not certain to be the last word. The Districts can ask that the full D.C. Circuit Court hear the case if enough of its judges believe the ruling by the three-judge panel is deficient. The Districts can also petition the U.S. Supreme Court to hear the case.
Also, in separate actions before the State Water Board and in state court in Tuolumne County, the Districts and the City of San Francisco are contesting many of the mandatory conditions that the State Water Board included in its water quality certification for the projects in January 2021. The State Water Board has not yet issued a final response to “petitions for reconsideration” of the certification; that response may trigger further opportunity for new litigation or for joining existing litigation. CSPA is in the thick of the dispute before the State Water Board, as reported here in January 2022.
Nonetheless, the victory of the conservation groups and the states in the D.C. Circuit’s June 17, 2022 ruling is substantial. It restores process discipline to water quality certifications and efforts to waive them. The present ruling against waiver comes from the same Court of Appeals that issued the ruling in Hoopa Valley Tribe v FERC, 913 F.3d 1099 (D.C. Cir. 2019); Hoopa Valley Tribe v. FERC was the case that has given rise to numerous petitions for waiver, and the Districts relied heavily on it in their arguments. The fact that the Court that issued Hoopa Valley Tribe v FERC now places limits on findings of waiver adds weight to the present ruling and its importance.
CSPA has played a strong role over the last 12 months in developing and negotiating a package of proposed reforms to the Federal Power Act. The package will, if implemented, change a multitude of on-the-ground aspects of how the Federal Energy Regulatory Commission (FERC) licenses hydroelectric projects. The package, with a short summary, was transmitted to committee leads in Congress in early April 2022.
CSPA’s Chris Shutes was co-chair of a working group and one of the most active members of a “drafting team” that developed the package. The drafting team was composed of representatives from the hydropower industry, Indian tribes, and non-governmental organizations (NGO’s). The working group came about as a result of the “Uncommon Dialogue on Hydropower.”
In the fall of 2020, CSPA began developing a series of problem statements concerning hydropower licensing. CSPA wrote up and presented these issues to fellow members of the Hydropower Reform Coalition in late 2020. The Coalition chose CSPA to be one of the NGO co-chairs in a working group with tribes and industry, which completed the package in March 2022 following forty-plus negotiating sessions over 2021 and early 2022. The recommended changes consist of word-by-word line edits and additions to the Federal Power Act.
Some of the basic principles in negotiating the package were:
- Changes are limited to the Federal Power Act, not other laws.
- Changes should not alter the authorities of FERC or other agencies, or shift the balance of authorities among them.
- The exception on shifting authorities is that federally recognized Indian tribes should have explicit authorities to act for themselves, rather than having the Department of Interior act for them.
- Maintain consistency with case law.
- Rather than questioning stated interests of negotiating parties, seek agreement on changes that meet mutual interests or move on.
The package if enacted would increase opportunities for advocates to use the hydropower licensing process to improve the conditions of rivers and fish. Among the improvements are:
- A requirement that FERC develop new rules for “license surrender” that include timelines and that allow the public to recommend early in the process what should happen when a hydro project ceases to operate. This would offer river and fishery advocates a major opportunity to get obsolete dams and other infrastructure out of rivers in years, not decades.
- A requirement for FERC to analyze and consider mitigating the ongoing and reasonably foreseeable future effects of a hydropower project in relicensing. Too often, FERC has accepted the effects of a dam or other infrastructure as past actions where the damage was done. A new definition would make FERC address ongoing effects, including what would be different if the dam and hydropower project didn’t exist. It would also require FERC to look forward over the 30-50 years of a new license.
- A requirement for FERC to analyze project effects under a changing climate. Till now, FERC just said no to climate change because it was too difficult or “speculative.” FERC would have to adopt methods for addressing climate change and hold periodic conferences to keep current on climate science.
- Requirements that give federally recognized Indian tribes the right to issue mandatory conditions in hydropower licenses for projects that occupy Indian reservations. Related requirements would give federally recognized tribes that same standing as fisheries agencies when projects affect treaty rights that relate to fish and wildlife.
- A requirement for “all models, including data and other modeling inputs and outputs, to be reasonably available for evaluation, operation, reporting, and review by licensing participants.” Models are routinely gamed and abused in licensing, just like they are in other venues relating to water: someone turns the crank, and out pops the answer they want. This would require model users to show their work, and to let others use models to offer alternatives.
- A requirement that FERC consider and directly respond to the information needs of other agencies. FERC routinely denies study requests from resource agencies. Licensees often support denial of studies, and then argue that since FERC didn’t order them, they must not be important. This delays the process because it requires agencies to collect information independently.
- A requirement that FERC and resource agencies hold public conferences to try to set a joint schedule and study plan. Licensees and their supporters often complain that licensing takes too long. A lot of the delay stems from fights about information, which become proxy fights about the scope of the mitigation that FERC will require. The conferences would daylight the disputes, without letting FERC limit the authorities of other agencies.
- A requirement that FERC report to Congress every five years on hydropower projects or parts of projects that are not operational, with a timeline to get them back on line or take other action.
- A requirement that FERC do a more accurate economic analysis of hydropower projects, including future project economics, in relicensing. FERC’s current practice provides a cursory analysis that often overvalues power that would be foregone due to proposed mitigation measures.
- A requirement that FERC and other agencies analyze whether providing fish passage to habitat upstream or downstream of dams would improve fisheries, regardless of whether a given fish species historically occupied such habitat.
As with many negotiated packages, there are things that the often opposing interests of negotiating partners, in this case including the hydropower industry, would get out of the package as well. Many of these include a shorter licensing process in certain situations where resource issues are not complex. Types of projects that could, if they show that they are relatively low impact, be eligible for shortened licensing include:
- Addition of hydropower power to existing dams that don’t have hydropower on them.
- New pumped storage projects that are “closed-loop” and don’t pump water out of rivers or onstream reservoirs.
- New pumped storage projects that use only offstream reservoirs.
Other hydropower industry interests that the package helps meet is a short language addition to the statute that gives the Forest Service and the Bureau of Land Management the ability to require mandatory conditions that FERC can’t change. There is also a short addition to the statute that allows the National Marine Fisheries Service and the U.S. Fish and Wildlife Service to require fish passage past hydropower dams. In both cases, new language would require such measures to show some connection to “project effects.” Some NGO’s found these changes unacceptable or too risky. CSPA and other NGO’s that support that package decided that the benefits of the package outweigh the risks.
CSPA is among NGO’s with the most extensive presence in hydropower licensing venues in California. This has been true since CSPA helped leverage FERC to re-open the license for the Lower Mokelumne Project (Pardee and Camanche dams) in the early 1990’s, an important step in making the lower Mokelumne one of the most productive salmon-producing rivers in California today. Since then, CSPA has been a leader in fifteen-odd FERC licensing proceedings and is recognized as having subject-matter expertise.
CSPA has found that many of the fights in the trenches of FERC licensing are over process. CSPA spends much of its time making legal arguments about why certain information is relevant or over why FERC or other authorized agencies have the authority in licensing to require certain types of measures. The proposed package of reforms to the Federal Power Act will, if enacted, mean that CSPA and other advocates can spend more time and effort figuring out how to make rivers better for fish. It would mean that CSPA and others have to spend less time and effort arguing about whether a licensing proceeding gets to consider such measures at all.
On April 6, 2022, CSPA and allied organizations AquAlliance and California Water Impact Network filed a protest and objection to a “Temporary Urgency Change Petition” for April-June 2022 water operations in the Delta. The California Department of Water Resources (DWR) and the US Bureau of Reclamation (Reclamation) filed the petition on March 18. CSPA et al. argue that the State Water Board must grant the petition only if the Board also limits diversions by contractors to DWR’s State Water Project (SWP) and Reclamation’s Central Valley Project (CVP) to amounts needed for health and safety and for wildlife refuges, and if the Board bans transfers of water stored in SWP and CVP reservoirs.
The stage was set in 2021 when DWR and Reclamation over-delivered water to contractors and allowed late season transfers of water stored in Shasta Reservoir. This had severe impacts on fisheries and left SWP and CVP reservoirs with drastically little water left in storage. As CSPA reported on January 17, 2022, CSPA et al. filed a Petition for Writ of Mandate asking a court to set aside the State Water Board’s June 1, 2021 approval of Reclamation and DWR’s TUCP for 2021 Delta operations, and a second Petition for Writ of Mandate asking a court to set aside the State Water Board’s approval of Reclamation’s Sacramento River Temperature Management Plan (TMP) for Water Year 2021.
Rains in October and December 2021 replenished some storage. In December, DWR and Reclamation submitted, but in January 2022 withdrew, a TUCP for Delta operations. Extremely dry months since New Years have left DWR and Reclamation with less overall storage than in 2021, prompting the March TUCP. In a partial turnaround, DWR and Reclamation now propose in 2022 to deliver substantially less water to contractors in aggregate than they delivered in 2021. However, the TUCP does not explicitly propose reduced deliveries or to eliminate water transfers, and the State Water Board’s April 4 Order granting the TUCP does not explicitly include such requirements.
In 2021, DWR and Reclamation could have saved fish and water by implementing CSPA’s alternative Sacramento River TMP and the diversion reductions it proposed. (For description and links, see CSPA’s June 6, 2021 post.) There was enough stored water in 2021 to keep Delta critical year water quality requirements and to do a better job of protecting salmon in the Sacramento River. In a draft 2022 TMP released April 6, Reclamation is proposing releases from Shasta Reservoir that are nearly identical to those the CSPA proposed in 2021.
Regrettably, a year later, it is no longer enough. As CSPA et al.’s protest and objection to the March 2022 TUCP puts it:
The water that should have been stored to create options to protect public trust resources in 2022 was lost in 2021 to canals and sluice gates and transfers. … The State Water Board, in deciding what it must do in 2022 … is a year late and hundreds of thousands of acre-feet short, because in 2021 it did not adopt CSPA’s proposed TMP or something functionally equivalent in terms of maintaining reservoir storage.
So CSPA et al. are stuck in the miserable position, in 2022, of not having an alternative source of water to propose that DWR and Reclamation could use to meet water quality standards in the Delta.
Though DWR and Reclamation must finally face up to the consequences of their reckless over-deliveries in 2021 (and 2020), and now propose drastic cuts to water deliveries to senior “settlement” contractors north of Delta, they have not done so as a regulatory requirement. Thus, even in extreme circumstances of their own making, DWR and Reclamation remain in control of what they generally term “voluntary” measures that are minimally enforceable or not enforceable at all.
And, in its April 4 Order approving the TUCP, the State Water Board retains its hands-off culture and posture as a non-regulator that cedes its regulatory role to the “trust us” mantra of entities that have shown themselves reliably irresponsible.
CSPA Tells Water Board: Limit Shasta Reservoir Releases and Sacramento River Deliveries in 2022 to Save Fish and Water in ’22 and ‘23
On March 16, 2022, CSPA presented recommendations to the State Water Resources Control Board to manage the Shasta and Trinity reservoirs and the Sacramento River in 2022. The State Water Board must act now to limit releases from Shasta Reservoir from April through November. Unlike last year, the State Water Board must assert its authority to keep the Bureau of Reclamation from delivering unreasonable amounts of water to Sacramento River “Settlement Contractors.” Reclamation’s deliveries in 2021 dug such deep holes in Shasta and Trinity reservoirs that many fish will die in 2022 even if the State Water Board finally steps up.
In a related matter, Reclamation and the California Department of Water Resources (DWR) presented the State Water Board on March 15 with a “Temporary Urgency Change Petition” (TUCP) to weaken water quality standards in the Bay-Delta estuary from April through June. The ostensible purpose of the petition is to allow Reclamation and DWR to hold more water in reservoirs. However, the petition doesn’t say how much water Reclamation and DWR will be releasing from the same reservoirs to deliver water to settlement contractors along the Sacramento and Feather rivers. Last year, Reclamation and DWR used a TUCP to “save” 289,000 acre-feet of water in Shasta Reservoir, while delivering a total of 4,400,000 acre-feet of water to contractors (Water Rights Order 2022-0095, pp. 9 and 13). That’s conserving water? How dumb do they think we are?
CSPA recommends minimum releases from Shasta Reservoir in April, with perhaps pulse flows to move salmon downstream. As it did in 2021, CSPA recommends releases of 5000 cfs from Shasta from May through November, and exports of water from the Trinity River of 300 cfs (with modification of exports only as needed to protect fish in the Trinity). CSPA will be objecting to the TUCP in the next two weeks.
By Cindy Charles
The California Sportfishing Protection Alliance (CSPA), along with AquAlliance and the California Water Impact Network, filed three separate lawsuits in February 2022 against the Butte, Colusa, and Vina subbasins’ Groundwater Sustainability Plans (GSPs).
The lawsuits argue that all three GSPs will continue to threaten groundwater users and the environment by accepting domestic well failures and not preventing additional groundwater loss. Among the three plans, there are concerns about the acceptance of unreasonable land subsidence and the use of inadequate well monitoring parameters. The lawsuits also claim that the plans’ projects and management actions are ambiguous and unenforceable.
The GSPs are required to meet mandates from the 2014 Sustainable Groundwater Management Act (SGMA). SGMA was enacted to halt overdraft and bring groundwater basins into balanced levels of pumping and recharge. The lawsuits argue that all three GSPs fail to achieve sustainable groundwater management and need to be declared invalid.
By Cindy Charles
CSPA, along with over a dozen other environmental organizations, recently signed on to a comment letter supporting limits on the discharge of ships’ ballast water into the Bay-Delta Estuary. The letter was sent to the San Francisco Estuary Partnership (SFEP) for consideration in the 2022-2027 San Francisco Estuary Blueprint.
The comment letter calls out the failure of the Estuary Blueprint to address ballast water and to require actions to reduce the introduction of non-native species in ballast discharges. The San Francisco Bay/Delta ecosystem is generally recognized as one of the most invaded estuaries in the world.
Ballast water discharge is not only a critical environmental threat. It is also a public health threat that includes human pathogens, including bacteria and viruses.
The letter recommends that the Blueprint include a provision that calls on the U.S. Environmental Protection Agency (EPA) to adopt requirements for ballast discharge that comply with the Clean Water Act limits on harmful non-native organisms and human pathogens.
The San Francisco Estuary Partnership was established in 1988 by the State of California and the EPA under the Clean Water Act’s National Estuary Program. The Estuary Blueprint maps out the regional actions needed for a healthy, resilient San Francisco Estuary. The Blueprint is currently undergoing an update by the SFEP.
SFEP staff will provide the comments to members of the SFEP Implementation Committee to discuss at their next meeting on March 16.
CSPA is pleased to announce that CSPA’s Executive Director Bill Jennings has been elected to the California Outdoor Hall of Fame as part of the class of 2022.
Fighting to protect fisheries and water quality for over 25 years, Bill has chaired CSPA since 1988. He is a Board Member of the California Water Impact Network and Restore the Delta. Between 1995 and 2005, he served as Deltakeeper. He was a founder and Chairman of the Committee to Save the Mokelumne.
Bill has received numerous previous acknowledgments, including:
- The International Conservation Award from the Federation of Fly Fishers;
- The Director’s Achievement Award from the Department of Fish and Game;
- The Conservation Achievement Award from the California-Nevada Chapter of the American Fisheries Society;
- The Quality of Life Award from the Land Utilization Alliance; and
- The Delta Advocate Award from Restore the Delta.
In addition, the Outdoor Writers Association of California recognized Bill as Outdoor Californian of the Year, and the Delta Fly Fishers selected him as Fly Fisherman of the Year. His success in achieving the historic cleanup of Penn Mine on the banks of the Mokelumne River led to awards to both the California Sportfishing Protection Alliance and Committee to Save the Mokelumne by the California Water Policy IX Conference.
Under Bill’s leadership, CSPA has become a leading actor in California water policy and fisheries protection through “in-the-trenches” engagement with regulators. Over the past thirty years, CSPA has had a consistent presence, most often by Bill personally, in proceedings before the State Water Resources Control Board and regional water quality control boards. Bill’s insistence on technically competent advocacy, combined with his willingness to litigate to enforce standards and laws, has made CSPA a voice for anglers far greater than CSPA’s modest organizational structure would suggest.
Less known about Bill are the years he spent fly fishing and traveling in Yosemite and Yellowstone national parks, and many of the other major and not-so-major fishing and outdoor venues across the western United States. As with many of the most effective fisheries advocates, he is strongly motivated by personal connections to the places he defends.
To win induction into the California Outdoors Hall of Fame, nominees must be named on 60 percent of ballots. Voters include previous inductees and major figures in the outdoor industry. Anybody can nominate a candidate. To be considered, a candidate must meet two achievements. They must have: 1) have inspired thousands of Californians to take part in the great outdoors and/or conservation, and 2) taken part in a paramount scope of adventures.
Usually, the induction ceremony is held at the end of January. However, due to the ongoing COVID pandemic, it has been delayed. When a day and time for the induction ceremony is selected, CSPA will post an announcement.
The California Sportfishing Protection Alliance and allies AquAlliance and California Water Impact Network (CWIN), filed an objection on January 7, 2022 to yet another petition to weaken flow and salinity standards that protect the Sacramento-San Joaquin Delta. The objection urges California’s State Water Board to reject the Temporary Urgency Change Petition (TUCP) submitted by the U.S. Bureau of Reclamation and the California Department of Resources (DWR) for the time period from February 1 to April 30, 2022.
This is the second year in a row Reclamation and DWR are seeking a pass from responsibly and lawfully managing their operations. Stopping these waivers of environmental protections is critical to avoiding a repeat of 2021’s catastrophic fish kills and to protecting water quality for all citizens of California.
In June 2021, in spite of vigorous protests from CSPA and many others, the Board waived or weakened water quality requirements for Reclamation’s Central Valley Project (CVP) and DWR’s State Water Project (SWP). The Board’s disastrous decisions played a major role in a 2021 survival rate of less than 3% of juvenile winter-run salmon. Other native fish, including fall-run salmon, Delta smelt, and longfin smelt, also had another terrible year because of low flows and high water temperatures.
The stage was set when Reclamation and DWR over-delivered water to CVP and SWP contractors in 2020 and early 2021, instead of responsibly managing Delta operations and upstream reservoirs to protect public trust resources.
CSPA’s objection says the State Water Board should deny the TUCP for 2022. The Board must use its authorities under the reasonable use and public trust doctrines. The Board must set strict limits on SWP and CVP deliveries to all water contractors until Delta water quality standards are met and reservoir operations are managed to protect public trust resources. Each time the Board weakens standards, the impacts to fish get worse and the road to recovery becomes steeper. Fish populations that suffered under TUCP’s in 2021 have still not recovered from the TUCP’s in the previous drought of 2014-2015.
Battles on Many Fronts
Other recent actions that CSPA, CWIN and AquAlliance have taken to fight against the repetitive weakening of water quality and temperature standards include:
- CSPA and allies submitted comments to the State Water Board on January 7, 2022 on the Board’s Draft Order on Reconsideration for the 2021 TUCP on Delta operations and the 2021 Sacramento River Temperature Management Plan (TMP). The comments state that the Board’s actions in approving that TUCP and the TMP were unlawful and that the effects to fish were unreasonable and outrageous. The comments ask the Board to issue a new Order that acknowledges the unreasonable use of water and resulting unreasonable effects on fish and wildlife. It also asks the Board to set new procedures for:
- Determining the reasonable use of water in dry year sequences;
- Limiting water deliveries consistent with reasonable use; and
- Protecting public trust resources consistent with legal responsibilities.
- CSPA and allies also filed a Petition for Writ of Mandate asking a court to set aside the State Water Board’s June 1, 2021 approval of Reclamation and DWR’s TUCP for Delta operations.
- In addition, CSPA and allies filed a Petition for Writ of Mandate asking a court to set aside the State Water Board’s approval on June 10, 2021 of Reclamation’s Sacramento River Temperature Management Plan for Water Year 2021.
The merry-go-round of the State Water Board’s serial waivers of water quality and temperature standards must stop. It is imperative for the Board to responsibly manage California’s water during drought, a historically common occurrence.
CSPA and ten allied conservation groups filed comments on January 7, 2022 in overall support of the Water Quality Certification (WQC) for the relicensing of the Don Pedro and La Grange hydroelectric projects on the Tuolumne River. The State Water Resources Control Board (Board) issued the WQC in January 2021. As it stands today, the WQC would require substantially increased flows in the lower 52 miles of the Tuolumne River. Ongoing litigation by CSPA and others could increase Tuolumne River flows even further.
In February 2021, CSPA and allies petitioned the Board to reconsider two narrow issues in the WQC: June flows in the lower 26 miles of the river, and the amount of augmentation of large wood the WQC requires.
Also in February 2021, the license holders of the projects, Turlock Irrigation District and Modesto Irrigation District (Districts), as well as the City and County of San Francisco (City) and the Bay Area Water Supply and Conservation Agency (BAWSCA), filed voluminous petitions for reconsideration asking the Board to rescind the WQC entirely.
Many of the arguments in the Districts’ and the City’s February 2021 petitions to the Board were grounded in a Rule concerning water quality certifications the that Trump administration implemented in 2020. That rule gutted the ability of states to protect water quality, including flow. The Biden administration has initiated a new rulemaking to substantially unravel the Trump-era Rule. In October 2021, a federal judge issued an Order Vacating the Trump Rule.
Most of the rest of the legal arguments in the petitions for reconsideration of the Districts, the City, and BAWSCA were incorrect for other reasons. The comments of CSPA and allies cite to controlling, foundational case law on water quality certifications to rebut those arguments.
For the past ten years, CSPA, the Tuolumne River Trust (TRT), and others have advocated for and suggested approaches to managing water supply and demand that would mitigate the water supply lost in restoring adequate flows to the Tuolumne River. The Districts, the City, and BAWSCA, in contrast, all strongly opposed analysis of such mitigation measures throughout the licensing and WQC proceedings. In recent comments in several venues, such as planning for groundwater management in the Modesto and Turlock subbasins, CSPA and TRT have continued to encourage consideration of such alternatives.
The timeline for the Board’s response to the petitions for reconsideration is unknown but likely short.
Note: The Districts are also appealing in the Federal Court of Appeals for the D.C. Circuit a decision by the Federal Energy Regulatory Commission to deny waiver of the WQC. CSPA and four other conservation groups have intervened in that case in support of FERC’s decision denying waiver. The current responses to the Board are made to with the understanding that a federal finding of waiver would make the petitions to the Board moot.
On November 4, 2021, CSPA won settlement of a lawsuit it filed against AT&T’s PacBell subsidiary regarding eight miles of abandoned phone cable on the bottom of Lake Tahoe. As a result of the settlement, PacBell will remove the decaying cable. The cable contains 63 tons of lead.
Local divers discovered the abandoned cables while removing other trash from the lake bottom. CSPA filed the lawsuit in January, 2021. CSPA provided the legal muscle and expertise to turn awareness of a serious problem into an action to fix it. CSPA’s lawsuit alleged violations of the federal Resource Conservation and Recovery Act of 1976 and California’s Safe Drinking Water & Toxic Enforcement Act of 1986 (Proposition 65).
PacBell switched to fiber optic phone cables over 30 years ago and abandoned the old cables that used a heavy lead sheath to shield copper transmission wires. The cables contain approximately 3 pounds of lead per foot. They extend for 8 miles along the western shore of Lake Tahoe from Baldwin Beach to Rubicon Bay, including across the mouth of Emerald Bay. While the amount of lead the cables have leached into Lake Tahoe is unknown, attorneys for CSPA found that three feet of cable left for one day in in a tub of Lake Tahoe water leached 4800 times the amount of lead allowed to enter a source of drinking water.
The settlement obtained by CSPA requires PacBell to get all the necessary permits for the cable removal. PacBell will then put the removal work out for bid. If permitting requirements push the removal cost above $1.5 million, the sides will need to come together to reassess.
In a press release, CSPA executive director Bill Jennings noted: “Lake Tahoe is one of California’s iconic waterways. We’re proud to help get this toxic garbage out of the Lake.”
CSPA’s “Watershed Enforcers” campaign programmatically uses legal action to correct violations of water quality laws and regulations. The law offices of Andrew Packard coordinated the legal team that represented CSPA in this matter.
CSPA, along with other environmental groups and fishing organizations, tribes, water agencies and counties, has prevailed in a lawsuit to stop the Westlands Water District from obtaining a permanent water contract with the U.S. Bureau of Reclamation. On October 27th, a Fresno County judge declined to validate a contract granting permanent access to water from the Central Valley Project. The contract would have given Westlands permanent access to up to 1.15 million acre-feet of water per year for irrigation and other private purposes.
Westlands has been operating on an interim contract basis, renewing its water deal with the Bureau every two years. It sought to make the contract permanent, but did not fulfill the lawful requirements of including details of payments to the government or public notice.
In his Order denying validation, Judge Tharpe wrote that the incomplete contract lacked financial terms and proper public notice under the Brown Act and could not be validated.
The law offices of Stephan Volker represented CSPA in this matter.
This victory is a significant setback to the last-minute maneuver of the Trump administration to provide water to Westlands at the expense of the public interest in the protection of fisheries and the environment.
The California Sportfishing Protection Alliance, California Water Impact Network, and AquAlliance filed comments to the State Water Resources Control Board (State Water Board) on July 16, 2021 in opposition to the proposed water transfer of up to 100,000 acre-feet of water from New Melones Reservoir. The transfer is requested by South San Joaquin Irrigation District and Oakdale Irrigation District (Districts). The proposed recipient is the San Luis and Delta-Mendota Water Authority (SLDMWA).
This proposed water transfer is reckless in the face of the ongoing severe drought, because it would greatly reduce water storage in New Melones Reservoir. Water in New Melones is now being used to protect Delta fisheries, and New Melones storage is critical as a reserve in case 2022 is dry.
On July 12, the Districts filed amendments to their 2021 petition. The amended petition seeks to add San Luis Reservoir as an additional temporary point of diversion and rediversion, and to extend the time to deliver the water for use through February 2023. CSPA and allies filed supplemental comments to the State Water Board on July 19, continuing to oppose the proposed transfer.
At first, even the Bureau of Reclamation (Reclamation) objected to the proposed transfer in a letter to the Counsel to the Districts. In a June 22 letter to the Districts (included as an attachment to CSPA et al.’s July 16 comments), Reclamation stated that there was not enough inflow to New Melones in 2021 to support the transfer. Further, Reclamation reminded the Districts that Reclamation’s 1988 Agreement with the Districts allows use of the Districts’ “conservation account” in New Melones Reservoir only for in-District use.
But in a sudden turnaround, without public notice or explanation, Reclamation issued on August 5 a Draft Environmental Assessment (DEA) in support of the Districts’ proposed 2021 transfer of 100,000 acre-feet of water to SLDMWA.
Undaunted, CSPA and allies sent a comment letter to Reclamation on August 12 regarding the DEA. These new comments stated that the DEA is legally inadequate because it fails to analyze the contractual change in Reclamation’s implementation of the 1988 Agreement for the operation of New Melones Reservoir. This change will have long-term significant impacts on the environment. Reclamation needs to issue a draft environmental impact statement (EIS) that discloses such impacts and analyzes potential mitigations for such a major change. In addition, Reclamation needs to issue a separate draft EIS that discloses the significant impacts of the proposed transfer’s reduction of CVP storage both in 2021 and 2022.
Given the extreme drought and the critical need for carryover storage in New Melones, CSPA and allies strongly urge Reclamation not to allow the Districts to transfer water from the conservation account, either in this case or in the future. CSPA and allies also recommend that the Districts withdraw their proposed water transfer.
Moreover, the State Water Board should disallow the transfer even if Reclamation accedes. The State Water Board needs to cease its deferrals to Reclamation’s contracts and agreements that allocate too much water for irrigation and water sales as a permanent structural condition. The State Water Board needs to assert its authority now to protect public trust fishery resources.
Editor’s note: on August 17, 2021, the State Water Board notified CSPA and other commenters on the proposed transfer that the Districts had withdrawn their transfer request.
Court Ruling Finds FERC 401 Waiver Not Justified – Important Implications for California Hydropower Project Licenses
On July 2, 2021, the Fourth Circuit U.S. Court of Appeals issued an important decision regarding Section 401 of the Clean Water Act, overturning an Order by the Federal Energy Regulatory Commission (FERC). FERC’s Order had found that the state of North Carolina had unlawfully “coordinated” with the license applicant to delay the state’s certification that a new FERC license for the Bynum hydroelectric project complied with state water quality laws. FERC found that North Carolina’s participation in the delay meant that the state had “waived” its authority under Section 401 to issue the certification.
The Court reversed FERC’s finding of waiver because the finding was not supported by “substantial evidence.” The Court wrote:
If (as we are assuming) mere coordination between an applicant and the state agency can lead to a finding of waiver under § 401, then it must take more than routine informational emails to show coordination. Were the rule otherwise, applicants could manipulate state agencies into inadvertently waiving their certification authority just by asking questions. The States’ rights and responsibilities to ensure compliance with their own water-quality standards are too important to be so easily stripped away.
This noteworthy decision may help CSPA defend water quality on several California rivers. CSPA, along with other environmental groups, has been vigorously contesting a series of FERC’s unwarranted waivers of Section 401 water quality certifications for hydropower projects. In California, the State Water Board is the agency that issues 401 certifications for new hydropower licenses.
CSPA has filed petitions for review with Ninth Circuit US Court of Appeals, seeking to overturn waivers on the following hydro projects:
- Nevada Irrigation District’s (NID) Yuba-Bear Hydroelectric Project
- Yuba County Water Agency’s (YCWA) Yuba River Development Project
- Merced Irrigation District’s (Merced ID) Merced River and Merced Falls Projects
The Ninth Circuit has consolidated these cases, including petitions for review filed by State Water Board on the same waivers, into a single case. In all three cases, the licensee withdrew and resubmitted applications for water quality certification.
CSPA is hopeful that the recent North Carolina decision will have a positive effect on these California cases, and thus help CSPA and others to restore the proper functioning of Section 401 of the Clean Water Act in California, which is vital to preserving water quality for both people and fish.
The case is North Carolina DEQ v F.E.R.C., — F.4th —, 2021 WL 2763265 (4th Cir. July 2, 2021).
CSPA Protests State Water Board’s Protection of Irrigated Agriculture at the Expense of Fisheries and the Environment
The California Sportfishing Protection Alliance (CSPA) and allies have vigorously protested two recent actions by the State Water Resources Control Board that virtually ensure a repeat of the last drought, when the Board’s disastrous decisions decimated multiple year classes of salmon and drove pelagic species in the Delta to the brink of extinction. Fisheries have still not recovered from the effects of 2012-2015 drought. This year, the SWRCB’s actions may push them over the edge.
Multi-year droughts are common in California, occurring more than 40% of the time. Unfortunately, the U.S. Bureau of Reclamation (USBR) and Department of Water Resources (DWR) routinely deliver normal water supplies in the first dry year, assuming the following year will be wet. When a dry year is followed by another dry or critically dry year, depleted reservoirs cannot be replenished. The State Water Board’s traditional response has been to protect irrigated agriculture by drastically reducing flows critical to fisheries survival and weakening water quality standards that were already developed to account for dry and critically dry conditions.
The State Water Board’s pattern and practice, extending over decades, is a major reason that winter and spring runs of Chinook salmon, steelhead, green sturgeon, Delta smelt and longfin smelt are listed as threatened or endangered under state and federal endangered species acts. Conversely, irrigated agriculture, which comprises about 2% of California’s economy but consumes 80% of the state’s developed water supplies, has fared rather well during droughts. Since 2000, Sacramento and San Joaquin Valley farm production has increased 71.4% and 152.5%, respectively. And the Department of Agriculture is forecasting that almond production and acreage will reach record highs this year.
The CSPA protests involve the Sacramento River Temperature Management Plan and Temporary Urgency Change Petition Order. Together, they pose significant risk to native salmonid and pelagic species.
Sacramento River Temperature Management Plan
Construction of Shasta Dam deprived Chinook salmon of the cold spring-fed spawning habitat of the McCloud, Pit and upper Sacramento Rivers: spawning now occurs below the dam. In 1990, the State Water Board established temperature standards between Shasta Dam and Red Bluff that provided for 59 miles of spawning habitat. The temperature compliance point could be moved upstream subject to uncontrollable factors. Water deliveries are not an uncontrollable factor.
This year, the compliance point only provides five miles of spawning habitat. Proposed temperature requirements are far above levels identified as lethal for spawning and rearing Chinook salmon. In 2014 and 2015, egg to fry survival was only 4% and 3%, respectively. This year is likely to be similar.
CSPA sent the State Water Board a letter on 14 March 2021 requesting immediate enforcement of Water Rights Order 90-05 and Bay-Delta water quality standards. CSPA followed up with a 15 April letter urging the Board to reduce water deliveries in order to conserve limited cold water in Shasta Reservoir. On 21 April 2021, CSPA testified at a State Water Board workshop regarding the proposed Temperature Management Plan. On 5 May, USBR submitted a draft Temperature Management Plan that proposed lethal temperatures and inadequate end-of-year storage, while providing excessive water deliveries. CSPA, Save California Salmon and the California Water Impact Network submitted an alternative approach to the State Water Board on 23 May 2021. The CSPA et al. Temperature Management Plan, comprised of a transmittal letter, descriptive elements and spreadsheet, would provide protective water temperatures for salmon in the Sacramento and Trinity Rivers. It would also provide increased carryover storage in Shasta and Trinity Reservoirs in case of another dry year. CSPA and its allies issued a press release and fact sheet on 1 June.
USBR submitted a slightly modified but still wholly inadequate final Temperature Management Plan on 28 May 2021. The State Water Board has ten days to approve or disapprove the Plan. If the State Water Board approves the Plan, CSPA will request reconsideration and, if necessary, litigate the issue. It should be noted that CSPA believes the State Water Board hasn’t complied with a settlement agreement in a pattern and practice lawsuit from the last drought; CSPA may need to seek court enforcement of the settlement.
Weakening of Delta Flow and Water Quality Standards
Present populations of Delta fishes are a remnant of their historical abundances prior to construction of the state and federal water projects. Several are on the edge of extinction. The current inadequate Delta water quality and flow standards were adopted 26 years ago and they remain in effect despite requirements to revise them every three years. The rules still in force include specific standards for different water years, including dry and critically dry years. However, the Governor’s 10 May 2021 Drought Proclamation waived mandatory compliance with these already-too-weak standards.
On 17 May 2021, DWR and USBR submitted a Temporary Urgency Change Petition to weaken the existing critical year standards. The State Water Board noticed the petition and provide an abbreviated public comment period to conclude 4 June. Before expiration of the comment period, the State Water Board issue an order approving the temporary urgency change. The order significantly reduces Delta outflow, moves the salinity compliance point further east into the interior Delta, and facilitates export of transferred water. CSPA, California Water Impact Network and AquAlliance filed a Protest, Objection and Petition for Reconsideration to the Change Petition and order on 4 June 2021.
The CSPA et al. Protest alleges that the State Water Board order is contrary to law, against the public interest and will have adverse environmental impacts. It describes myriad consequences of the order, including: seriously degrading water quality for fish, farms and cities; reducing the food supply and viable habitat for endangered and threatened fish; impeding migration of native species; facilitating the spread of toxic algal blooms that threaten fish, plankton and humans; and expanding the range of non-native submerged aquatic vegetation and invasive predators at the expense of native species among other things. The over-arching effect will be to transform one of the great natural freshwater estuaries in the world into a salty warmwater lake.
CSPA and Allies Oppose Proposed SFPUC General Manager and City of San Francisco’s Lawsuit Against State Water Board
CSPA has joined a letter opposing the prospective appointment of San Francisco City Attorney Dennis Herrera as the new General Manager of the San Francisco Public Utilities Commission (SFPUC). The SFPUC is the water supply agency for the City of San Francisco. In total, eleven environmental and fishing groups joined the May 24, 2021 letter to San Francisco Mayor London Breed and SFPUC Commission President Sophie Maxwell.
The opposition to Mr. Herrera’s appointment stems largely from a lawsuit against the State Water Resources Control Board that Mr. Herrera filed on May 14, 2021 on behalf of the SFPUC and the City of San Francisco. The opposition also stems from statements that Mr. Herrera made to the press regarding the lawsuit, and in particular his statement that going to court “is our only option to protect San Francisco’s water supply.”
The City’s lawsuit contests the State Water Board’s Water Quality Certification for the relicensing of Turlock and Modesto irrigation districts’ Don Pedro and La Grange hydroelectric projects.
The opposition letter objects not simply to the act of filing suit, but to the lawsuit’s scorched earth legal arguments about the State Water Board’s Water Quality Certification. The City’s lawsuit argues that implementing the flow requirements in the Certification would violate the California Constitution’s prohibition of “waste or unreasonable use” of water. The City’s lawsuit also invokes the Trump Administration’s 2020 Rule on Section 401 of the Clean Water, which rolled back almost all of the kinds of conditions states can place on new federal licenses.
The opposition letter concludes by saying: “We urge you to reject Mr. Herrera and conduct a national search for a more qualified candidate to lead the SFPUC.”
 For further discussion, see: http://calsport.org/news/hydropower-reform-coalition-opposes-another-trump-administration-attack-on-the-clean-water-act/. See also: http://calsport.org/news/wp-content/uploads/2019-10-21.HRC_.401_Comments.pdf.
On May 7, 2021, CSPA joined a broad coalition of organizations in a letter urging the Biden Administration not to endorse so-called “voluntary agreements” that propose inadequate environmental requirements for the San Francisco Bay-Delta and its tributaries. The letter was addressed to Secretary Haaland of the Department of the Interior and Secretary Raimondo of the Department of Commerce.
The groups expressed serious concerns that some agencies of the State of California are negotiating behind closed doors with numerous water districts, without participation from conservation and environmental justice organizations, fishing industry groups, or Native American tribes.
These closed-door negotiations continue to be based on the inadequate proposed Framework for voluntary agreements announced by the State in February 2020. That Framework’s inadequate flow and other requirements will fail to protect and restore the Bay-Delta watershed and the communities and jobs that depend on it. The Framework has not been substantively improved during the 14 months since it was released.
The Bay-Delta water quality standards in effect today are 25 years old. Improved water quality protections are urgently needed, are long overdue, and are required by both state and federal law. California’s salmon runs in the Central Valley, which sustain thousands of fishing jobs across the West Coast and are of importance to tribal peoples of this area, continue to decline. Longfin smelt and other native species in the Delta are now trending towards extinction. Harmful algal blooms are proliferating in the estuary, threatening public health for heavily disadvantaged communities like Stockton.
CSPA and allied organizations call on the Biden Administration to withdraw the Trump Administration’s 2019 biological opinions and to engage in a science-based, transparent, public process at the State Water Resources Control Board to adopt and implement improved water quality standards for the Bay-Delta watershed.
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.
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!