CSPA in the News
Good Numbers of Salmon and Steelhead Return Again to Mokelumne RiverDec 28, 2019 Read Online
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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.”
A Fresh Disaster for Fish – Bureau of Reclamation’s New Plan for Long-Term Operations of the CVP and SWP Water Export Business
The California Sportfishing Protection Alliance, California Water Impact Network and AquAlliance submitted joint comments September 3, 2019 on the Bureau of Reclamation’s Draft Environmental Impact Statement (DEIS) for the Long-Term Operations of the Central Valley Project and the California State Water Project.
The DEIS proposes to weaken fishery and environmental protections so that the Reclamation can increase water exports out of an already severely degraded Delta ecosystem. Reclamation justifies these changes under the pretense of “new science”. In their 58-page comment letter, CSPA and its allies detail how the DEIS is both factually incorrect and fails to comply with the law.
Central Valley Project (CVP) and State Water Project (SWP) operations are currently based on biological opinions issued in 2008 and 2009 by the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS). In August 2016, Reclamation and the California Department of Water Resources (DWR) reinitiated Endangered Species Act (ESA) consultation with NMFS and USFWS on the future joint operation of the CVP and SWP. This will require new biological opinions that the DEIS purports to analyze, even though these biological opinions are not yet complete.
The DEIS states that the purpose of the new consultation is to evaluate “alternatives to maximize water supply deliveries and optimize marketable power generation consistent with applicable laws.” In their comments, CSPA and its allies describe how this project purpose is unlawfully narrow, ignoring evaluation of reasonable alternatives that would not increase water supply deliveries and optimize power generation.
The comments describe how the Preferred Alternative in the DEIS, Alternative 1, as well as Alternatives 2 and 3, would cause jeopardy under the ESA and adversely affect critical habitat. They would thus be inconsistent with applicable law, and as such are not reasonable alternatives. Increasing south Delta exports is likely to cause further environmental degradation in the Central Valley and add to the risk of extinction of many Central Valley threatened and endangered species, including salmon, steelhead, sturgeon, and smelt. Removing existing ESA restrictions on reverse flows in the Delta and weakening already inadequate water temperature requirements in the Sacramento River are two of the most damaging proposed actions in the Long Term Operations (LTO) Plan.
The DEIS fails to quantify the benefits of a healthy ecosystem and to show how Reclamation makes valuations of resources other than water supply and power generation and sales. The DEIS also fails to describe how Reclamation and DWR have serially violated existing ESA and other legal constraints on their operations, and how the State Water Board has failed to take enforcement actions against these violations.
The DEIS proposes that the Preferred Alternative would make compliance with the Central Valley Project Improvement Act (CVPIA) revocable at the discretion of the Secretary of the Interior. The DEIS fails to disclose that such action would be contrary to law and would unilaterally overturn the will of Congress.
Among the many serious faults of the DEIS, Reclamation appears to include as part of the Preferred Alternative a raise of Shasta Dam and Shasta Reservoir. The DEIS fails to disclose that a Shasta raise would be contrary to California law.
To comply with the National Environmental Policy Act, the Bureau of Reclamation must recirculate the DEIS with a proposed Action and alternatives that will allow operation of the CVP and SWP to consistent with the ESA, the CVPIA, and other applicable law.
For the complete comment letter, click here.
On 9 September 2019, CSPA and a coalition of fishing, environmental, tribal and environmental justice organizations submitted comments to the U.S. Bureau of Reclamation (USBR) and the Central Valley Regional Water Quality Control Board (Regional Board) regarding the Grasslands Bypass Project Long-Term Storm Water Management Plan EIR/EIS Addendum and Initial Study.
The Grasslands Bypass Project carries drainage wastes and stormwater discharged from 97,000 acres of farmland in the Grasslands area through the San Luis Drain to the San Joaquin River and Delta Estuary. The discharges are highly polluted and exceed water quality criteria for salts, sulfates, selenium, mercury, boron and other contaminates. Selenium is highly toxic and bioaccumulates through the food chain which magnifies impacts on fish, wildlife and migratory birds. Selenium contamination in the San Joaquin River is identified as harming steelhead and green sturgeon and posing a threat to the restoration of spring-run and fall-run Chinook salmon in the upper river. Mercury is also highly bioaccumulative and poses a threat to people who eat fish.
The Project began in 1995 as a two-year program and has been extended through a series of federal use agreements and lax enforcement by the Regional Board. The Project proposes another fifteen-year extension of the use agreement beginning on 2020.
The coalition letter states that: 1) an “Addendum” to the 2009 EIR/EIS is insufficient and that a full EIR/EIS is required; 2) a federal NPDES permit for the discharge is necessary; 3) protective water quality criteria must apply; 4) the Drainage Reuse Area is an illegal disposal site and must not be expanded and 5) that the proposed stormwater detention basins are another “Kesterson in the making.” Additionally, the letter points out that attempts at treatment have not been effective, that the project has no long-term viability or legality and that land retirement should be considered as a viable alternative.
On 6 September 2019, CSPA joined by the Pacific Coast Federation of Fishermen’s Associations, Friends of the River, San Francisco Crab Boat Owners Association, Institute for Fisheries Resources and Felix Smith prevailed in a major decision by the federal Ninth Circuit Court of Appeals in a lawsuit against the U.S. Bureau of Reclamation and San Luis & Delta-Mendota Water Authority. The lawsuit, initially filed in 2011, maintained that the discharge of substantial quantities of selenium, salts, sulfates, mercury and other pollutants collected from 97,400 acres of farmland within California’s Central Valley required a federal National Pollutant Discharge Elimination System (NPDES) permit. The pollutants were discharged into the San Joaquin River, the Bay-Delta Estuary, and ultimately San Francisco Bay.
The Court held that the Clean Water Action exception to discharges from irrigated lands did not apply when discharges were comingled with contaminates from other sources. Because the discharges also included wastes from highways, residences, groundwater and other sources, the exemption did not apply.
CSPA Executive Director Bill Jennings observed “After decades of inaction by our federal government to halt the contamination that has destroyed habitat for our fish and wildlife, it is reassuring to see our federal court issue a strong ruling enforcing the Clean Water Act’s mandated for fishable and swimmable rivers.”
Below are misc. historical documents related to Grasslands, Westlands and Discharges into the San Joaquin River
Cost Allocation Letters
Contracts—WWD permanent and interim, Transfers –SLDMWA delta pumps, Cost Allocations—making it so the taxpayers pay more and irrigators pay less, San Luis Drain to discharge Westside pollutants to the Delta.
WaterFix version 1 is hung out to dry. There have been welcome announcements by the Newsom administration of a clean start on California water policy. But on June 10, 2019, the Department of Water Resources posted “Why Delta Conveyance” to one of its many webpages, linked in DWR’s email listserve DWR Water News. It appears that some of the messengers at DWR have set the dial back to the spin cycle.
Fast spin number 1 in “Why Delta Conveyance” reads:
“According to the United States Geological Survey, there is a 72% chance of a 6.7 or greater magnitude earthquake occurring in the Bay Area by 2043 that could cause levees in the Delta to fail, crippling the state’s ability to deliver clean water.”
Let’s unpack that.
- “There is a 72% chance of 6.7 or greater magnitude earthquake occurring in the Bay Area by 2043.”
Okay, that a plausible prediction, but we don’t have the reference from USGS. It would be really useful to have the reference, to see exactly what USGS predicted. A reasonable suspicion is that the 72% figure refers to the likelihood of an earthquake occurring somewhere in the Bay Area, not somewhere that would specifically affect levees in the Delta.
- A magnitude 6.7 earthquake “could cause levees in the Delta to fail.”
It is believable that an earthquake in the wrong place could cause levees to fail. What’s not believable is that there’s a 72% percent chance that the predicted 6.7 or greater magnitude earthquake will be in that place. But that’s how that statement reads, or at least, that’s how one could read it. If there is a report that says there is a 72% chance of a levee-breaking earthquake, then show us the report and show us the data.
- If enough levees failed, the consequences could be “crippling the state’s ability to deliver clean water.”
Well, if that means that levee failure could compromise the ability of the state to export water from the Delta for some undetermined period of time, depending on specifics, then yes, that is also believable. Whether that would “crippl[e] the state’s ability to deliver clean water” depends on how many levees failed and where they failed, and how long it took to get them back on line. (The speed of repair of the levee failure in the Jones tract in 2004 far exceeded expectations). It depends on where the water is coming from and going to. It depends on what options there are now or that may be developed between today and 2043 to create alternative sources of supply for water that might be lost if Delta exports were compromised. And it depends more generally on how one defines “cripple.”
It would also depend on whether the hundreds of miles of canals that move water south from the Delta would also survive the hypothetical earthquake that caused Delta levees to fail. If those canals fail too, would levee failure be “crippling?” Stated differently, if there were a tunnel under the Delta that got water to the head of canals that failed further south, would the investment in a tunnel have paid off?
Fast spin number 2 in “Why Delta Conveyance” reads:
“Modernizing Delta conveyance would add additional points of diversion along the Sacramento River, increasing the operational flexibility of the SWP, therefore improving the reliability of deliveries to Californians. In 15 years of the 20 years from 1998 – 2018, the SWP delivered 75% or less of the permitted water. Deliveries for eight of those years paint an even more concerning picture with deliveries at 50% or less.”
Recently, the Newsom administration has told Delta advocates that a one-tunnel project would not be for the purpose of increasing diversions from the Delta. Yet DWR’s blog defines “reliability” as the ability to divert more water from the Delta.
The blog’s lament of not meeting amounts of “permitted water” is not a situation that a tunnel would change. There is almost never enough water that falls from the sky to make full deliveries of DWR’s bloated water right permits. DWR’s permits are far back in line compared to older water rights. DWR’s permits also anticipated diverting water from rivers on California’s north coast. That hasn’t happened. Diversion infrastructure in the Delta and south of the Delta, and restrictions on their use, do limit Delta diversions in many years. But 75% of DWR’s permitted water is a good year for diversions by most any measure. And less than 50% deliveries in eight years is not surprising, considering that eight years (2007-2009, 2012-2016) are generally considered to have been drought years.
Fresh evaluation or same old project with minty fresh scent?
One would like to think that the Newsom administration’s new “portfolio” approach to California water would include looking at Delta conveyance with diverse input and fresh eyes, including whether or not “alternative” conveyance makes sense. But if the blog post “Why Delta Conveyance” is an indicator, the foremost question for DWR is what it can sell. If that’s how it shakes out, look for new “fact sheets” that aren’t factual, and for new project branding to be the centerpiece of a new project definition.
One can only wish that DWR would get its stories straight and be honest about what any new conveyance project would do, before it lavishes the public with descriptions of how great it’s all going to be.
CSPA is proud to report that our legal work to protect water quality continues to generate monetary settlements that are donated to foundations and other organizations that protect water quality. While the primary focus of CSPA’s enforcement efforts is to eliminate continuing pollution, settlements generally include mitigation payment for past damage to the environment. These settlements are approved by the courts and U.S. Department of Justice and, by law, cannot benefit or be directed to CSPA.
For example, the largest recipient of CSPA’s mitigation funds is the Rose Foundation for Communities and the Environment. The Rose Foundation is a grant-making public charity that provides much needed funds for environmental and community projects. Since 2005, CSPA has contributed more than $7.2 million in settlement funds to the Rose Foundation.
In 2017 and 2018, environmental mitigation funds from CSPA’s cases enabled the Rose Foundation to award 31 grants totaling $486,500 to organizations working to protect and benefit watersheds throughout much of California. Specific watersheds included the Sacramento-San Joaquin Delta, Russian River, San Francisco Bay, and Monterey Bay. Supported projects included citizen science-based water quality monitoring; legal and technical advocacy to protect water flows and water quality; habitat restoration; community mobilization events that engaged thousands of volunteers in hands-on stewardship; media and public outreach projects; and environmental education to build a new generation of conservation leadership.
Here is a report from the Rose Foundation, which provides short summaries and source-of-funds information for grants enabled by the California Sportfishing Protection Alliance in 2017 and 2018.
By supporting CSPA, CSPA’s donors and members are thus supporting numerous projects and organizations across the state. Please consider donating to CSPA, joining, or renewing your membership today.
On May 9, 2019, Governor Newsom released his proposed budget for the coming fiscal year. The website for CalCAN, the California Climate and Agricultural Network, reports that the proposed budget would eliminate funding for SWEEP,  “the state’s on-farm water use efficiency program.” This is nuts.
The Brown administration initiated SWEEP during the 2014 drought. CalCAN reports that the 2018 SWEEP budget for on-farm water efficiency was $27 million. The problem with SWEEP is not that its money is badly spent. The problem is that it is underfunded by at least an order of magnitude, with a conceptual framework that is equally timid.
The immediate answer for the FY 2020 budget is to restore SWEEP and adding a zero to its 2018 budget. Yes, multiplying the budget by ten. A good chunk of this budget should be spent on establishing an organizational and administrative framework whose focus is institutional agricultural water use (e.g., on the level of irrigation districts) as well as individual farms. Because on a longer term basis, California needs a concerted, statewide campaign to increase agricultural water use efficiency.
Governor Newsom’s Order-N-10-19 issued on April 29 charged Secretaries Crowfoot (Cal Resources), Blumenfeld (Cal EPA) and Ross (Cal Food and Agriculture) with “together prepar[ing] a water resilience portfolio that meets the needs of California’s communities, economy, and environment through the 21st century.” Simply put, no portfolio can meet those requirements without substantial investment in reducing agricultural water demand.
In CSPA et al.’s 2017 comments on the draft Substitute Environmental Document for the update of the Lower San Joaquin River Flow Objectives and Southern Delta Salinity, we presented a table of annual average unimpaired flow and water deliveries from the Merced, Tuolumne and Stanislaus rivers:
Figure 1: Annual median and average runoff, average agricultural deliveries and average M&I deliveries from the Merced, Tuolumne and Stanislaus Rivers
As we stated in our comments on the SED:
California in general, and the San Joaquin tributaries in particular, have an unsustainable agricultural business model. It is a boom and bust cycle built on overallocation of water. Too much delivery in good years creates crisis after 2-3 dry years. This system remains semi-functional only because it diverts water needed for rivers, over-pumps groundwater, or both. On the three major San Joaquin tributaries, average annual deliveries are about half of the average annual runoff (Figure 1). This level of deliveries is not sustainable and creates permanent stress on the system.
The need is not to put ag out of business, though some land does need to be retired. The need is for a new agricultural business model that does not rely on deficit spending of water resources: spending water on crops that should be in rivers and passing through the Delta and Bay.
Agricultural water users simply must do their share to reduce the aggregate demands for water, and their share of water use is large. And no, that doesn’t mean saving water to increase cultivated acreage, put in more profitable tree crops, or sell the “saved” water to water users whose footprint exceeds their water supply. The need is to leave more water in rivers and the Delta and the Bay.
A variant on the old agricultural business model for water is the serial sale (or “transfer”) of water by entities that don’t need all the water they divert. So rather than leave the water in the rivers where it belongs, these entities divert it and sell it. Several major groups of water users and purveyors, including Oakdale Irrigation District and Sacramento River Settlement Contractors, have refined such serial transfers and have developed them into a business model to pay for infrastructure and in some cases habitat improvements for fish and wildlife.
The Vernalis Adaptive Management Plan and Program from 2000 to 2011 put a different twist on this program, selling diverted water back to the river with the state paying the bill.
The resolution of the Mono Lake case in Water Rights Decision 1631 and related litigation (1980’s-1990’s) was already a more advanced business model. There, the Los Angeles Department of Water and Power was required to reduce its water demand in order to protect the “public trust,” in this case aquatic resources in Mono Lake and its tributaries, as well as other public resources such as associated air quality in Mono and Inyo counties. Los Angeles did not finance these improvements by selling water. Resolution involved the acknowledgment and leveraging of a broader social responsibility.
As the Newsom administration considers and develops a “portfolio” approach to water, a major question is therefore the breadth of the portfolio. A portfolio that retains the paradigm of treating water issues in isolation will be under-resourced and over-extended. There will never be enough money and there will never be enough water if the resources available for restoring rivers, the Delta and the Bay are sourced exclusively from water sales and surplus farm profits. Any such portfolio will remain a portfolio for managing deficit spending.
So far, the Voluntary Agreements that the Newsom administration inherited from the Brown administration have retained the business models for water from the past. As proposed, they would limit water for increasing river flows and flows through the Delta to water that water users volunteer to give up without breaking a sweat, or that they get paid for, or both. This volume of water will not solve the problem of rivers and an estuary starved of water. The Newsom administration needs to start by confronting the inadequacy of restoring water to rivers within the comfort zones of the water user community.
Retention of the model of voluntary return of overappropriated water means that an essential question is never asked: How can the state maintain existing or close to existing levels of agricultural production while using substantially less water? The water user community doesn’t want to confront and solve the problem of reducing agricultural water demand because it is pre-emptively focused on retaining overappropriation.
There has never been reticence on the part of water users to use public money to fund water development projects like dams and tunnels. The Newsom administration should make the smarter investment of reducing agricultural water demand. It should be bold in funding agricultural water efficiency, even as it must also be firm in controlling and restoring water to rivers and the Bay-Delta estuary.
 State Water Efficiency and Enhancement Program.
 Governor Newsom, Executive Order N- 10-19, April 29, 2019.
 Source: SED: Merced: p. 2-16; Tuolumne: pp. 2-18 to 2-20; Stanislaus: pp. 2-27 to 2-33. Note: does not include riparian diversions. The cited levels of deliveries are conservative; deliveries often exceed the stated values.
 The requirement passed by the legislature in 2009 for urban water use, 20% reduction by the year 2020, put that sector of the state’s water operations on track to a much better business model.
 Sure, there is still significant opportunity to reduce municipal and industrial (M&I) water demand as well. But M&I water demand accounts for only about 20% of the developed water in the state. And M&I water purveyors and users have already made substantial strides in water conservation and efficiency over the past two decades.
CSPA, nine other conservation and fishing groups, and four whitewater outfitters (“Conservation Groups”) jointly submitted 75 pages of comments on April 12, 2019 on the Draft Environmental Impact Statement (DEIS) for the relicensing of the Don Pedro Hydroelectric Project and the first-time licensing of the La Grange Hydroelectric Project. Together, the projects have buried over twenty miles of the Tuolumne River under Don Pedro and La Grange reservoirs. Today, these reservoirs separate the upper and lower Tuolumne.
The two hydroelectric projects are undergoing licensing by the Federal Energy Regulatory Commission (FERC). The Don Pedro relicensing began in 2011. It was delayed for about two years while the National Marine Fisheries Service, CSPA and others pleaded successfully that the La Grange Powerhouse, operating with no federal license since the 1920’s, required licensing by FERC. The DEIS covers both licensing proceedings.
FERC staff released the DEIS in February 2019. The DEIS recommends that the new licenses adopt the flow regimes supported by the license holders, Turlock Irrigation District and Modesto Irrigation District (Districts). The same skimpy flows are supported by the City and County of San Francisco (the most progressive city in the world!), and by the Bay Area Water Supply and Conservation District, which wholesales water to other Bay Area water agencies.
The DEIS recommends adoption of the Districts’ proposed flows for the lower Tuolumne River, which are a hair better than existing. The Districts proposed combining their flows with killing bass in the river and cleaning river gravel with a power washer. They argued this would protect and support as many salmon as increasing river flows and the access of salmon to floodplain habitat. FERC staff said it was “unknown” if killing bass would help, and staff did not recommend “gravel cleaning.” However, staff accepted the results of the Districts’ “model” whose positive results were based on these activities.
FERC staff also concluded that it did not need to analyze options for maintaining existing water supply uses with less water. So FERC staff took replacement of flood irrigation with managed groundwater recharge, and similar strategies, off the table. Since staff thus concluded that its recommended solutions could not include reducing water supply demand, it decided not to recommend any flows that would require that.
As a clincher, the DEIS copied the Districts’ language verbatim in discussing the reintroduction of salmon to the Tuolumne River upstream of the reservoirs.
Conservation Groups’ DEIS comments find the DEIS inadequate on many grounds, from basic factual omissions to legal inadequacy under the National Environmental Policy Act, the Federal Power Act, and the Administrative Procedure Act.
CSPA is grateful to attorneys from Morrison & Foerster LLP and their client, the Tuolumne River Trust, for their assistance in drafting these comments.
CSPA and a coalition of environmental, fishing and environmental justice organizations submitted comments to U.S. EPA regarding proposed federal water quality criteria for selenium applicable to California. A protective water quality criterion for selenium is essential not only for various aquatic species, through various lifecycles, during various seasons, but also for the protection of terrestrial wildlife and humans that consume aquatic species.
The coalition is expressed concern that the proposed selenium criteria will not apply to certain streams that are identified as seriously polluted by discharges of high concentrations of selenium, like the San Joaquin River. The letter urged U.S. EPA to bring scientists from USFWS, NMFS, USFS, and USGS directly into a Criteria setting process with EPA scientists to ensure a consensus-based criteria that all federal resource agencies will support. Selenium criteria must comply with the Clean Water Act, Endangered Species Act, Migratory Bird Treaty Act, Fish and Wildlife Coordination Act and Tribal fishing rights.
The coalition letter and relevant documents are below.
CSPA, the Golden Gate Salmon Association, and other fishing and river groups have released an analysis critical of the outline of Voluntary Agreements submitted to the State Water Board as a proposed alternative to the Board’s regulatory update of the Bay-Delta Plan. The analysis describes foundational problems with the agreements as proposed by the California Natural Resources Agency (CNRA) and others on December 12, 2018 and March 1, 2019.
Entitled “Smoke and Mirrors,” the analysis criticizes the as yet incomplete Voluntary Agreements as outlined to date because they:
- Double-count habitat restoration projects that are already required or planned using existing funds, and that would occur without such an agreement;
- Fail to provide sufficient flow increases to protect and restore the Bay-Delta estuary, its native fish and wildlife, and the thousands of jobs that depend on it;
- Fail to include any restrictions on Delta pumping and other operations of the Central Valley Project (CVP) and State Water Project (SWP); such restrictions are necessary to prevent the water projects from diverting any additional flow provided from upstream farms and cities and to prevent the Trump Administration from gutting Endangered Species Act (ESA) protections for the Bay-Delta;
- Fail to include carryover storage requirements in upstream reservoirs to ensure water supplies for future droughts and adequate water temperatures for salmon;
- Fail to use the transparent approach of flow standards based on a percentage of unimpaired flows, and instead use the failed approach of State Water Board Decision 1641;
- Fail to ensure that Bay-Delta standards will be enforced and will respond to new scientific information; and
- Fail to include investments in water supply reliability and economic development projects that will help cities and farms adapt to a future with less water diverted from the Bay-Delta.
The analysis of the Voluntary Agreements is available here.
The webpage for the March 1 CNRA submittal to the State Water Board is here.
In his State of the State address on February 12, 2019, newly elected Governor Gavin Newsom announced he didn’t support the “California WaterFix” as a two-tunnel project, and that he favored downsizing it to just one tunnel. What does this news mean?
Sacramento-San Joaquin Delta
Photo: CA Dept. of Water Resources
The WaterFix project to tunnel water under the Sacramento – San Joaquin Delta no longer exists as designed. Many steps of this alleged solution for improving the environment and fisheries of the Delta and San Francisco Bay will need to be retraced.
The California Department of Water Resources (DWR) and the U.S. Bureau of Reclamation (BOR) have never analyzed a single tunnel in an environmental document. The 90,000 of pages in the “Final” WaterFix environmental impact report (EIR – California) and environmental impact statement (EIS – federal), already “supplemented” once in 2018, will at minimum require additional analysis. To be done right, it is likely that environmental review will need to completely start over.
Former Governor Jerry Brown peruses the 90,000-page WaterFix environmental impact report (Office of the Governor/Twitter)
DWR and BOR’s joint Petition to the State Water Resources Control Board for the Change in the Point of Diversion (August, 2015) is for a twin-tunnel project. With a single tunnel, it is not even clear if the Bureau of Reclamation will be a partner. To be done right, the Petition, which already contained many procedural irregularities, will need to be withdrawn and resubmitted.
In over two years of hearings before the State Water Board, which generated 24,000 pages of hearing transcripts, there was no testimony about a single tunnel project. At minimum, the Board will need to take additional testimony about a new project. The hearing officers will need to decide what if any previous testimony about a twin-tunnel project will remain relevant in evaluating a single-tunnel project. It is possible that the hearings, too, will need to start from scratch.
No details have been forthcoming on the description of a re-designed project or the next steps. There are definitely more questions than answers. The Governor needs to make decisions on the revised scope and extent of the project. On March 1, DWR and BOR sent a letter to the State Water Board requesting that the Board temporarily place the WaterFix Petition in abeyance and issue a temporary sixty day stay on all proceedings for the WaterFix. The letter states that a stay will “allow DWR sufficient time to assess the effects on WaterFix and the nature and extent the effects would have on existing and any new permit and planning work, and specifically how this may affect the WaterFix CPOD process.”
Meanwhile, several lawsuits relating to the earlier versions WaterFix are already underway. These include litigation on the EIR/EIS for WaterFix. They also include litigation of DWR’s “Validation” that the project is ready to issue bonds to fund it. It is unclear whether DWR and BOR will withdraw their environmental documents or the validation, and if so what will become of the ongoing litigation. Attorneys for CSPA and numerous other parties have invested substantial time, effort and resources in this litigation, prior to DWR’s upcoming do-over.
WaterFix in any form will be further delayed for years. Perhaps it is time for the Governor to put a cork in the tunnels once and for all and find alternatives that truly reduce reliance on the Delta for California’s water supply.
The holidays are over, and the sales are on. Karla Nemeth, Director of the California Department of Water Resources (DWR) published an op-ed in CALmatters on December 26, 2018 to tell the world “what new water deals mean.” Tom Birmingham, General Manager of Westlands Water District on the west side of the San Joaquin Valley, pronounced on the same day that “new voluntary water agreements are a good deal.” Together, they’re selling a 15-year lease on the public trust resources of the Sacramento – San Joaquin watershed and the Bay-Delta estuary. Of course, like all leases, at the end of the lease period there will be no equity to show for it. As the 15 years sunset, the sales associates will throng to re-up the public on buying back public water. With luck, after those 15 years there will be some fish and other public trust resources left to protect.
On December 12, 2018, DWR Director Nemeth and Department of Fish and Wildlife (DFW) Director Chuck Bonham brought a presentation and a series of abbreviated “term sheets” for “Voluntary Settlement Agreements” to the meeting of the State Water Board. The State Water Board had agendized adoption of the update of that portion of the Bay-Delta Plan that deals with Lower San Joaquin River Flow and Southern Delta Salinity. The State Water Board adopted the Plan revisions and approved the supporting Substitute Environmental Document later that day. (See CSPA’s previous analysis here).
At the State Water Board’s December 12 meeting, Turlock and Modesto irrigation districts and the San Francisco Public Utilities Commission supported a flow agreement for the lower Tuolumne River that they had reached at least in concept with DFW. A larger group of water users supported DFW and DWR’s approach and recommended framework for Sacramento Valley flows and Delta operations. These entities even offered to draft all or part of a restructured substitute CEQA document on the State Water Board’s behalf.
So how can Mr. Birmingham unabashedly say that the new Voluntary Settlement Agreements are a “good deal” when the so many details of the agreements still need to be worked out? How can other commenters from the water user community praise the deals without really even knowing what they are? It’s because (using Mr. Birmingham’s word) these deals “preempt” a formal balancing of the public trust. They don’t start from the premise that water for the public trust is primordial and fundamentally different than water for developmental uses.
The public trust protects the needs of the rivers, the estuary and the Bay – including fish and wildlife, the aquatic food web, plants, clean water, public recreation – as first priority. Developmental uses are limited by the needs of the public trust. The State Water Board’s percent-of-unimpaired framework accepts the premise that the public trust is fundamentally different, and is first in line. CSPA’s arguments with the State Water Board are not about the Board’s framework. They are about how the State Water Board goes about drawing the line (lack of formal process for balancing the public trust) within that framework, and where the State Water Board chose to draw the line (too little water devoted to protect the public trust) within that framework.
The Voluntary Settlement Agreements are an initiative by water users, aided and abetted by the California Departments of Natural Resources and Fish and Wildlife, to substitute private agreements in place of balancing the public trust. Thus, CSPA’s argument with the Voluntary Settlement Agreements as proposed is fundamentally different than the argument with the State Water Board. CSPA’s fundamental disagreement with the Voluntary Settlements is that they place the system of water rights priority before the public trust; water for the public trust becomes the sloppy seconds of business as usual. The argument is with relegating the public trust to leftovers, not with the size or quality of the leftovers.
The framework of the Voluntary Settlement Agreements as introduced on December 12 is to limit required flows so that they don’t upset the existing divisions and allocations of water. Diverting, storing and then selling the public’s water back to “the environment” is one of the main tools of this framework. Setting up opportunities to divert “new” sources of water is another tool. Accounting tricks that increase diversions even as “new” water is released is a third. Building the Voluntary Settlement Agreements on the foundation of Water Rights Decision 1641 – a proven disaster for fish – will allow the water users another fifteen years to game a water system they have mastered.
The Voluntary Settlement Agreements are also long on selling previous commitments for non-flow measures as new commitments. Many of the non-flow actions that the listed for the Feather River are actions DWR agreed to in the Oroville Settlement Agreement for relicensing hydropower facilities at Oroville Dam. Many actions on the Sacramento have long been identified as needed. The game is not simply “will trade money for water.” It’s: will trade water for making some of the payments we’re already late in paying. The sales pitch here involves getting extra credit for actually doing something you already said you’d do.
New objectives tentatively proposed for the update of the Bay-Delta Plan, according to a July 2018 State Water Board Framework document (p. 20), would add existing Delta “reverse flow” limits to the Bay-Delta Plan. This would create a state backstop to the Trump administration, which is preparing to weaken these Endangered Species Act protections in the Delta in order to “maximize water deliveries.” Under the Voluntary Settlements, the backstop goes away. As noted in a January 4, 2019 story in the Los Angeles Times, “Department of Water Resources Director Karla Nemeth said proposed changes in [Delta] pumping operations could involve fewer restrictions and more exports.”
Adaptive management under the proposed Voluntary Settlements offers still another low-flow opportunity. Mr. Birmingham informs us: “In the eighth year of the agreements, an additional 300,000 acre-feet of water will be dedicated to Delta outflow if science establishes the additional water is required to achieve the established goals for species.” Of course, “science” won’t establish anything. People will establish the goals for the species, and people will establish the need for water. Who will those people be? “[A] collaborative group of public agencies and interested nongovernmental organizations” will “evaluate whether water used for species protection is being used reasonably and beneficially.” The “public agencies” are the state and federal contractors who spent millions of dollars over the last eight years attacking the need for more Delta outflow. They are also the federal fish agencies that didn’t utter a word in the latest round of workshops and meetings on the Bay-Delta Plan, and California DFW, whose Director showed up to cut flows in half. There is no definition of who the “interested” nongovernmental organizations might be, what their role will be, or whether they’ll have to sign and defend a lousy settlement or a non-disclosure agreement to play. With this lineup, what are the odds that conditional water will become real water?
Resource agencies, NGO’s and water users dithered for six years in secret flow negotiations on the San Joaquin, with two years of overlap with secret flow negotiations for the Sacramento Valley. In the end, a small group of water users carved up Central Valley water to meet the December 12, 2018 deadline to present agreements to the State Water Board. In Mr. Birmingham’s words: “These agreements resulted from intense negotiations among DWF [sic], DWR, the U.S. Bureau of Reclamation, public water agencies that contract for the delivery of water from the Central Valley Project and the State Water Project, and public water agencies from every upstream region in the Delta watershed.” Even though most of these entities have governance as “public water agencies,” they represent the public interest only to the degree that the public interest overlaps with the economic interests of their constituents. And none of these “public water agencies” start from the basis of the primacy of the public trust. These deciders concluded the Voluntary Settlements as private negotiations of business entities dividing up assets and liabilities. It’s a hostile takeover of the public trust.
In the negotiation of the December 12 Voluntary Settlement Agreements, two sets of entities were ostensibly negotiating to defend the public trust: DFW, which accepted the water users’ framing and framework from the start, and five hand-picked non-governmental organizations (NGO’s) that were never allowed to direct the discussion. These five NGO’s are all relatively large and well-funded national environmental organizations. But in a setting where private interests are competing, the economic and political clout of these NGO’s doesn’t hold a candle to the water users, DWR, and the Bureau of Reclamation. As undercapitalized private interests, they were marginalized; they reported to the State Water Board that most of the major discussions and negotiations took place without them, and often without them even being informed. They at least had the sense to walk away from a rigged game.
The political capital that NGO’s and resource agencies bring to processes to protect fish and other public trust resources is precisely their representation of the public interest. The five selected NGO’s signed non-disclosure agreements that cut them off from their political base and allies. They isolated themselves from the coalition of the broader NGO community, greatly limiting their resources and their strategic opportunities, and most of all weakening their moral authority immeasurably. DFW’s leadership, in conducting a secret process, grossly weakened any leverage it might have had by separating itself from the broader environmental and fishing community. It also went a long way toward breaking up working relationships that NGO’s and DFW staff have developed and strengthened over the past decade, in hydropower relicensings as well as before the State Water Board.
The State Water Board’s adoption of lower San Joaquin River flow objectives on December 12 reunited, for the moment, the broad NGO (environmental and fishing) community in favor of these objectives and against a series of lousy private deals. But the State Water Board also left the low flow Voluntary Settlement Agreements with a big foot in the door. The broad water user community has not simply initiated a parallel process to that of the State Water Board’s update the Bay-Delta Plan. The water user community is seeking to undermine the State Water Board’s process to balance the public trust. It seeks to insert a surrogate, opposing private deal dedicated to the proposition that water users should have another 15 years to siphon off the public trust and thus avoid living within their means when it comes to water.
That must not happen.
What the Water Deals Mean, Part 1: December 2018 Agreements between the Department of Water Resources and the Bureau of Reclamation
On December 12, 2018, the California Department of Water Resources (DWR) and the United States Bureau of Reclamation (Bureau) concluded a series of water agreements relating to DWR’s State Water Project (SWP) and the Bureau’s Central Valley Project (CVP). On December 26, 2018, CALmatters published op-ed in which, Karla Nemeth, Director of the California Department of Water Resources (DWR) presents her perspective on “what new water deals mean.”
This post presents a different perspective.
The foundational agreement between DWR and the Bureau announced on December 12 is the Addendum to the Coordinated Agreement Central Valley Project/State Water Project. The Addendum to the “COA” modifies the 1986 agreement between DWR and the Bureau on how they divide up responsibility for meeting various regulatory requirements and how they divide up the benefits of water deliveries between SWP and CVP contractors.
Under the Addendum to the COA, the Bureau and the CVP generally get less responsibility and more water than under the 1986 COA. The SWP will be responsible for meeting more north-of-Delta and in-Delta flow and water quality requirements in Dry and Critically Dry water years. This will increase demands on Oroville Reservoir, DWR’s main north-of-Delta storage facility, when water is in short supply. Thus, the Addendum to the COA means that the SWP and the CVP will change how they operate their reservoirs.
The Addendum to the COA treats changes in the operations of California’s major reservoirs as strictly private water supply management issues to be negotiated by business interests and the agencies that enable them. However, as seen most clearly in the 2014 and 2015 drought years (and 2016 on the Stanislaus), drawing down SWP or CVP reservoirs increases the risk that their operators will be unable to meet flow, salinity and/or water temperature requirements in the following year without shorting deliveries to their highest priority “settlement” and “exchange” contractors. In 2014 and 2015, DWR and the Bureau faced low reservoir storage and low inflow. DWR and the Bureau jointly petitioned the State Water Resources Control Board (State Water Board) for “Temporary Urgency Changes” to flow, salinity and water temperature rules. The State Water Board granted these petitions to weaken flow, salinity and temperature requirements. As a result, almost the entire natural production of winter-run salmon in the Sacramento River failed, and Delta smelt disappeared, possibly to the point of extinction. These are public trust issues, not private ones. By any measure, they were significant impacts.
Legally, one way the public trust is protected from significant environmental impacts is through environmental review. However, DWR has declared that the Addendum to the COA is exempt from environmental analysis under the California Environmental Quality Act (CEQA), because the change is all within the range of (non-public) discretion DWR has always had in operating its reservoirs. The Bureau, for its part, issued a brief Environmental Assessment and a Finding of No Significant Impact under the National Environmental Quality Act (NEPA) for the Addendum to the COA, putting slightly more effort into determining that there is nothing to see here.
The “get” for DWR and the SWP from the Addendum to the COA is enshrined in another document, the Agreement to Address the Effects of the California WaterFix on Central Valley Project Operations, in which the Bureau agrees, for now, to stay on board with DWR’s Delta tunnels project (aka “WaterFix”), at least until the State Water Board issues a draft water rights decision for WaterFix. The Agreement to Address the Effects ultimately allows the Bureau the opportunity to become a partner in WaterFix or to decline, and promises that in any event DWR will “avoid, mitigate, or offset [WaterFix] impacts [to the CVP], if any, described herein under specified circumstances.”
Here are some of the things that the Agreement to Address the Effects means. First, it means that DWR won’t radically change the WaterFix project definition, for now. All the associated documents, processes and approvals that are based on the existing WaterFix project definition won’t be summarily thrown out. So DWR can continue pursuing WaterFix without facing a massive do-over of environmental review and three years of water rights hearings at the State Water Board. It means that DWR can tell the State Water Board that it will potentially use the Bureau’s water rights in operating the tunnels. And it means that DWR has the tenuous assurance that the Bureau may accept and comply with the substance of the Biological Opinions for WaterFix issued by the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS). The Bureau is the federal action agency for the purposes of those BiOps, and would have extensive obligations under them. In the Agreement to Address the Effects, the Bureau has promised not to unravel that arrangement at least until the State Water Board issues a draft water rights decision.
As noted above, the Addendum to the COA, without adequate NEPA review and with no CEQA review at all, substitutes a private deal for public disclosure under CEQA and NEPA of the impacts of changed reservoir operations on the public trust. In combination with the Agreement to Address the Effects, the Addendum to the COA also creates a private deal to mitigate impacts of changed reservoir operations to CVP water users under WaterFix without mitigation of the impacts of changed reservoir operations to the public trust under WaterFix. Broader acceptance of such private resolutions would have the additional effect of reducing opposition in the WaterFix water right hearings to DWR’s position that reservoir operations are strictly a private matter, unfit for public comment, input or review.
CSPA has argued in its testimony in the WaterFix hearings that the State Water Board needs to put explicit carryover storage conditions on each of the north-of-Delta CVP and SWP reservoirs (Trinity, Shasta, Folsom and Oroville) to reduce the risk to fish. Separately, a number of water users have sought protection from foreseeable changes in reservoir operations under WaterFix that could reduce their water supply reliability. Folsom area diverters who protested the WaterFix petitions have asked for numeric carryover storage requirements in Folsom Reservoir to protect their water supplies. Other north-of-Delta diverters have sought to assure that changes in reservoir operations under WaterFix would not make less water available for their respective water deliveries. Conditions on reservoir operations in water rights permits for WaterFix (or as the result of any other proceeding) appear to be a deal-breaker for both the Bureau and DWR.
One of the goals of the December water deals thus appears to be to separate the water users who are WaterFix protesting parties (“protestants”) from environmental WaterFix protestants on issues of reservoir operations. Though a likely overreach at least in its timing, DWR sent a December 12 letter to many of the WaterFix protestants who are CVP contractors, asking these CVP contractors to dismiss their water rights protests and to not sue on any issues or proceedings relating to WaterFix. Much of the testimony that these parties presented in the WaterFix water rights hearings directly or indirectly addressed reservoir operations.
On December 12, DWR and the Bureau also concluded a cost sharing agreement to keep federal dollars coming to pay for the CVP’s share of the requirements under the existing Biological Opinions for the long-term operation of the existing SWP and CVP facilities. The Trump administration is working to re-write these BiOps, presumably to reduce federal obligations for both water and money. This cost sharing agreement appears to sunset once new BiOps for existing SWP and CVP facilities are issued. However, a December 12 letter from DWR Director Nemeth to Bureau Commissioner Brenda Burman entreats the Bureau to continue cooperation on a suite of matters relating to the SWP and CVP, and states, specifically: “Each of these actions must ensure an approach that enables compliance with state law.” This is important. Federal compliance with state law is no longer a given. In this regard, it is notable that the Addendum to the COA allows the possibility for the Bureau to withdraw from the COA in as little as six months.
In sum, the three agreements are an elaborate attempt by DWR to keep the Bureau on board with WaterFix, to keep the Bureau maintaining at least the appearance of complying with state law, to leverage federal funding, and to reduce CVP contractor opposition to WaterFix. DWR’s leverage is the SWP’s enormous Delta export pumping capacity and the potential that WaterFix may directly or indirectly increase CVP exports as well as SWP exports.
The three agreements are an elaborate attempt by the Bureau to increase water its supply deliveries and to reduce its regulatory obligations for both water and money. The Bureau’s leverage is the fact that DWR needs the Bureau to continue as a petitioner in the WaterFix water rights hearings and as a proponent in related proceedings. In addition, the Bureau’s leverage is that it can invoke the nuclear option of refusing to comply with state law in a variety of venues.
Together, DWR (passively) and the Bureau (actively) will use the Bureau’s leverage (potential non-compliance with state law) against the State Water Board in the update of the Bay-Delta Plan. The Board’s update could require both the SWP and the CVP to restore substantial amounts of water to the public trust. Both DWR and the Bureau, along with their contractors and other water users, will use the threat of federal non-compliance with state law, along with the carrot of federal funding, to promote the Voluntary Settlement Agreements that DWR and others also announced on December 12, 2018. DWR, the Bureau, and other water users will attempt to substitute these Voluntary Settlement Agreements for the State Water Board’s regulatory obligation to balance the public trust. This will be the subject of Part 2 of What the Water Deals Mean.