CSPA in the News
Coalition of groups submits protest against water rights application for Sites ReservoirSep 5, 2023 Read Online
- Good News for Fish: Clean Water Act Holds for PG&E Hydropower Projects on Yuba and Bear Rivers
- CSPA, Friends of the River, and Allies Protest Water Rights for Proposed Sites Reservoir
- The View from under the Bus: Newsom Administration and Fish Agencies Sell Out Yuba River Flow for Fish Passage
- Another CSPA Legal Victory: US Supreme Court Denies Appeal, Affirming State Regulation of Merced and Yuba Rivers
- Chris Shutes – Recipient of 2023 Mark Dubois Award from Friends of the River
- September 2023 (2)
- May 2023 (2)
- April 2023 (2)
- February 2023 (3)
- December 2022 (2)
- November 2022 (1)
- September 2022 (1)
- August 2022 (1)
- June 2022 (1)
- April 2022 (2)
- March 2022 (3)
- January 2022 (3)
- November 2021 (1)
- October 2021 (2)
- August 2021 (1)
- July 2021 (1)
- June 2021 (1)
- May 2021 (2)
- April 2021 (3)
- March 2021 (2)
- February 2021 (1)
- January 2021 (2)
- November 2020 (2)
- September 2020 (3)
- August 2020 (1)
- July 2020 (2)
- June 2020 (5)
- May 2020 (5)
- April 2020 (2)
- March 2020 (2)
- February 2020 (1)
- January 2020 (4)
- December 2019 (1)
- November 2019 (1)
- October 2019 (1)
- September 2019 (5)
- August 2019 (1)
- June 2019 (2)
- May 2019 (1)
- April 2019 (2)
- March 2019 (2)
- January 2019 (2)
- December 2018 (3)
- November 2018 (4)
- October 2018 (2)
- August 2018 (1)
- May 2018 (2)
- April 2018 (1)
- February 2018 (1)
- January 2018 (1)
- December 2017 (1)
- November 2017 (1)
- September 2017 (2)
- August 2017 (5)
- July 2017 (3)
- June 2017 (4)
- May 2017 (1)
- April 2017 (6)
- March 2017 (1)
- February 2017 (2)
- January 2017 (2)
- December 2016 (2)
- November 2016 (1)
- October 2016 (3)
- September 2016 (1)
- August 2016 (1)
- July 2016 (1)
- June 2016 (2)
- April 2016 (8)
- March 2016 (1)
- January 2016 (2)
- November 2015 (5)
- October 2015 (4)
- September 2015 (3)
- August 2015 (6)
- July 2015 (1)
- June 2015 (5)
- May 2015 (4)
- April 2015 (3)
- March 2015 (3)
- February 2015 (4)
- January 2015 (2)
- November 2014 (2)
- October 2014 (3)
- September 2014 (15)
- August 2014 (14)
- July 2014 (10)
- June 2014 (8)
- May 2014 (13)
- April 2014 (15)
- March 2014 (14)
- February 2014 (12)
- January 2014 (13)
- December 2013 (9)
- November 2013 (7)
- October 2013 (9)
- September 2013 (10)
- August 2013 (9)
- July 2013 (4)
- June 2013 (5)
- May 2013 (5)
- April 2013 (3)
- March 2013 (3)
- January 2013 (7)
- December 2012 (3)
- September 2012 (2)
- August 2012 (3)
- June 2012 (1)
- May 2012 (2)
- April 2012 (1)
- March 2012 (1)
- February 2012 (6)
- January 2012 (2)
- December 2011 (2)
- November 2011 (1)
- October 2011 (4)
- September 2011 (10)
- August 2011 (12)
- July 2011 (13)
- June 2011 (9)
- May 2011 (16)
- April 2011 (13)
- March 2011 (10)
- February 2011 (12)
- January 2011 (4)
- December 2010 (20)
- November 2010 (7)
- October 2010 (11)
- September 2010 (18)
- August 2010 (2)
- Historic Archive (Prior September 2010)
The California Sportfishing Protection Alliance (CSPA) is pleased to report that the Federal Energy Regulatory Commission (FERC) issued an Order on September 5, 2023 that upholds the California State Water Board’s authority to require a “water quality certification” for new hydropower licenses for the Upper Drum-Spaulding, Lower Drum, and Deer Creek hydroelectric projects.
The Order ends a multiyear effort by PG&E to avoid regulation of these projects under Section 401 of the Clean Water Act.
Section 401 of the federal Clean Water Act grants states authority to certify that facilities receiving federal licenses or permits meet state water quality standards. Through these certifications, states require dam owners to preserve streamflows and water temperatures necessary for fish and aquatic life, and to protect uses like fishing and boating.
FERC’s Order finds that the State Water Board did not waive its authority to issue certification for the project. The Order states that the record lacks substantial evidence that the Board was complicit in circumventing the one-year deadline for certification.
The Order rejects PG&E’s central argument that the State Water Board caused FERC to delay issuing new licenses for the projects. PG&E voluntarily withdrew and resubmitted its requests for certification each year from 2013 through 2017. The State Water Board never failed to act within one year of request or certification, because PG&E itself withdrew its requests. Beginning in 2018, the State Water Board denied certification within one year of PG&E’s requests.
The new licenses for the three projects are still pending at FERC for reasons unrelated to certification.
The Commission Should Reject PG&E’s Petition for Waiver as Venue Shopping for Substantive Advantage Unrelated to Delay.
…PG&E’s issue with the water quality certification is one of substance, not of timing. PG&E simply seeks to avoid regulation under the Clean Water Act. As demonstrated by [PG&E’s] repeated invocation of clearly inapplicable Trump-era modifications to [Clean Water Act Section 401] …PG&E will argue against regulatory requirements regardless of how long advancing such argument prolongs the licensing process.
The September 5 Order follows the precedent set by the US Court of Appeals for the Ninth Circuit, which reversed FERC’s waiver of water quality certifications for the Yuba River, Yuba-Bear, Merced River, and Merced Falls hydroelectric projects. CSPA was a litigant in those consolidated cases.
FERC’s Order reverses previous FERC positions on waiver of Section 401 for hydroelectric projects. It is a milestone in the Hydropower Reform Coalition’s four-year campaign, led in substantial part by CSPA, to protect Section 401 of the Clean Water Act.
 Foothills Water Network’s member organizations include Foothills Water Network, American Rivers, American Whitewater, California Outdoors, California Sportfishing Protection Alliance, Friends of the River, Gold Country Fly Fishers, Northern California Council of Fly Fishers International (formerly Northern California Council Federation of Fly Fishers), Save Auburn Ravine Salmon and Steelhead, Sierra Club and its Mother Lode Chapter, South Yuba River Citizens League, and Trout Unlimited.
The California Sportfishing Protection Alliance (CSPA) and Friends of the River (FOR) led a coalition of environmental groups and the Winnemem Wintu Tribe in a protest of the water right application for the proposed Sites Reservoir. CSPA filed the protest with the State Water Resources Control Board on August 31, 2023.
In addition to CSPA, FOR, and the Winnemem Wintu Tribe, joining the protest were AquAlliance, California Water Impact Network, CalWild, Fly Fishers of Davis, Friends of the Swainson’s Hawk, Northern California Council of Fly Fishers International, Restore the Delta, Save California Salmon, Sierra Club California, and Water Climate Trust.
If constructed, Sites Reservoir would have a capacity of 1.5 million acre-feet, making it the largest reservoir constructed in California since the 1970s. It would divert water from the Sacramento River to what is presently a large valley west of the river in Colusa County.
CSPA’s Executive Director Chris Shutes described the Sites Project in a press release as follows:
Building new reservoirs will never solve the problem of giving away too much water. Sites would join a system of reservoirs whose drains are too big for their spigots. The supposed environmental benefits rely on promises of responsible management by the people who give away too much water in the first place. The pay-to-play model is inequitable and unjust. Sites Reservoir is a bad deal for California: for its fish and wildlife, for its rivers, for its people.
The introduction to the protest is reproduced below.
The Sites Reservoir project is founded on the dual deception that a massive new diversion from the Bay-Delta watershed will improve water supply reliability and improve environmental protection. It is doubly wrong.
Fish and rivers throughout the Central Valley are hemorrhaging. The state and federal water projects, their agencies, and their contractors have led these fish to the brink of extinction and these rivers to degradation and loss of basic function. Now, changing their hats to appear as partisans of local solutions in the Sacramento Valley, these agencies and their contractors ask for more water and more public money, and propose to control 90% of the water in a shiny new project, but with no new responsibilities to protect the public resources they have so masterfully decimated.
The Sites project lives in the faded dream of the mid-twentieth century, whose central tenet was that when water supply is short, the solution is to pour more concrete and divert more water. It is no wonder that the Sites water rights application claims it is true to, and seeks to implement, a project that was first put on the books in 1977. That 1977 “state filed application” for water, in turn, is grounded in a view of water development that was passed into law in 1927.
The Sites project is deeply inequitable. It harms all those who rely on rivers and fish for their livelihoods and sustenance, as well as for their enjoyment. This includes tribal communities whose connection to rivers, fish, and associated environments, are, in addition, cultural and religious. The Sites project will create some of the most expensive water in the state, affordable to only a few. It will thus tend to push costs for water higher generally, making water less accessible to disadvantaged communities.
Water is the lifeblood of California’s rivers and fisheries. The Sites project is consistent with, and founded on, a coordinated plan for the state’s water that systemically bleeds rivers, fisheries, and communities dry. There will be no water supply reliability in the Central Valley until demand for water is brought into line with what Central Valley hydrology can reliably provide. There will be no humane recognition of tribal sovereignty or the public trust until this paradigm shifts.
The proponents of Sites Reservoir won’t produce a plan for operating their 1.5 million acre-foot reservoir until after it is approved. But they ask the people of California to trust them. They tell us it will give them the resources to protect fish this time around. Throughout California’s history, reservoir backers have promised the world every time a new dam is built, and they have always failed to deliver. The overall result of the 1400 dams in California has been salmon and other fish species declining towards extinction, the loss of over 90% of California’s wetlands, degraded water quality, and expanding toxic algae blooms in the Bay and Delta. Sites would not be the first dam to over-promise and under-deliver.
Past practice is the best indicator of future behavior. The state and federal projects, and their regulators at the State Water Board and the fish agencies, have the ability, the authority, and indeed the obligation to manage limited water resources to protect fish and rivers today. They have done the opposite. They systematically give away too much water. During dry year sequences, the projects routinely come crying to the regulators for “temporary” changes to already inadequate fisheries protections, and the regulators routinely oblige, without requiring accountability for how the latest predictable “emergency” came about.
The Sites project promises so many benefits, but what solid benefits are there really? Water for wildlife refuges that the state and federal projects should already be delivering to make up for the destruction of enormous amounts of Central Valley habitat. A pittance of water for Delta smelt in an experimental project whose effectiveness is based on a prayer.
And then there is process. So much process. The proponents of Sites, to the degree they are not already participants in the management committees that have run fish into the grave, will join the resource agencies and the water users already in the room, and talk, talk, talk.
The history of the state and federal water projects and their contractors is that they fight like crazy to make constraints on water deliveries as weak as possible. Once established, the state and federal projects and their contractors painstakingly game those constraints to maximize long-term water deliveries. The idea that voluntary consultation without strong regulation is enough to restore the state’s public trust fishery and river resources utterly ignores the dismal outcome of past consultation with inadequate rules and enforcement.
The Sites Application supports itself with talking points on how the state will run out of water under conditions of climate change. It is a new tambourine banging out the same old tune. This protest is founded on the principle that if the State of California does not set limits on water use, and instead allows the state and federal projects to keep taking, taking, taking, the state is going to run out of fish and living rivers.
 State Water Project (SWP) and Central Valley Project (CVP).
 California Department of Water Resources (DWR) and Bureau of Reclamation (Reclamation).
The View from under the Bus: Newsom Administration and Fish Agencies Sell Out Yuba River Flow for Fish Passage
With nary a mention that the center of the prospective deal is no flow increases on the Yuba River, two fish agencies, a water agency, and the Newsom Administration used glowing words to announce on May 16, 2023 “a restoration plan” for the Yuba River.
The rollout at a press conference featured the Director of the California Department of Fish and Wildlife (CDFW), the California Assistant Regional Administrator for the National Marine Fisheries Service (NMFS), the General Manager of Yuba Water Agency (YWA), the California Resources Secretary, and Governor Newsom himself.
Later in the day came the price sticker for fish. The “non-binding” “Term Sheet” that summarizes the plan negotiated solely by CDFW, NMFS, and YWA announced among its “Guiding Principles”:
“Measures will not require changes to the 2008 Yuba Accord instream flow requirements as described in the Final Environmental Impact Statement (June 2019) for the YRDP, except as otherwise agreed to by YWA in the Settlement Agreement.”
The Final Environmental Impact Statement refers to the relicensing by the Federal Energy Regulatory Commission (FERC) of YWA’s Yuba River Development Hydroelectric Project. In that regulatory process, CDFW staff joined staff from non-governmental organizations (NGOs) and the US Fish and Wildlife Service (USFWS) in advocating for substantially more aggressive flow requirements in most years. On May 16, 2023, the managers of CDFW and NMFS announced their deal next to the river whose flow needs they just sold out.
During the press conference, Resources Secretary Wade Crowfoot set a new standard for greenwashing in discussing the Administration’s efforts to “restore flows in our rivers” during a press conference that announced a deal whose cornerstone was not increasing flow requirements in the Yuba River. He followed it up by mentioning several environmental and fishing groups that had nothing to do with the Yuba deal.
Speaking in a broader context, Governor Newsom explained his approach “doesn’t mean we’re rolling over people.” Well here’s a newsflash from under the bus. His agencies cut a backroom deal without so much as informing other Yuba advocates, including other federal resource agencies and water and power purveyors as well as non-governmental organizations (NGOs), until after the deal was done. The deal stands directly in opposition to 10 years of flow advocacy by the Foothills Water Network coalition of NGOs, including California Sportfishing Protection Alliance (CSPA), as well as by CDFW and USFWS staff.
This “DAD” approach (decide, announce, and defend) has become standard operating procedure for the Newsom Administration’s water initiatives. His “state team” has deployed the same tactic in ginning up “Voluntary Agreements” that decide how little water they can call “increased flow” with a straight face. For the lower Yuba River, the latest proposed Voluntary Agreement (separate from the deal announced May 16) would require YWA to release an additional 7000 acre-feet a year (above the flows required by FERC), in a watershed whose average annual runoff is 2.4 million acre-feet. That’s a whopping increase of three tenths of one percent. Other water agencies will pay YWA to release another 43,000 acre-feet in most years. Well, it’s an increase. Like the “tall” coffee at Starbucks that’s the smallest cup in the house, it’s all about branding.
Just to make sure all bases are covered, the Term Sheet also says:
“The Parties intend to negotiate a Settlement Agreement that would … provide the SWRCB [State Water Resources Control Board] with an agreed-upon set of conditions for consideration in issuance of any necessary Section 401 water quality certification in the new FERC license proceeding for the YRDP.”
On May 15, 2023, the California Department of Justice received word from the US Supreme Court that it, along with CSPA, Friends of the River, South Yuba River Citizens League, and the Sierra Club, had successfully defended – against an appeal by Yuba Water Agency, no less – the State Water Board’s authority to issue a water quality certification at all. That means the State can order additional flows to protect fish. No matter. One day after the Board and its legal representatives concluded three years of pleadings and litigation in defense of its authority, CDFW’s Director Chuck Bonham announced, alongside the Governor, that CDFW had agreed to a deal. Part of that deal is that CDFW will recommend that the Board not use its authority to order additional flows.
That would be the bus’s back set of wheels. Will the State Water Board finally decide that it doesn’t like the view from under the bus either?
Fish Passage Promises and Omissions
The prospective ‘gets’ in the Yuba surrender are improved, volitional fish passage past Daguerre Point Dam, located at River Mile 11.4 on the lower Yuba River, and a “Reintroduction Plan” with some as yet undefined level of support for a pilot reintroduction, and eventually a long-term reintroduction, of spring-run Chinook salmon to the North Yuba River.
Daguerre Point Dam
Fish passage at Daguerre Point Dam has problems.
The two fish ladders on the dam have variably passable hydraulics depending on flow and changes in the river channel. The ladders are subject to clogging by sediment, wood, and other debris. Salmon often choose to hold downstream of the ladders for days or weeks rather than pass up the ladders. The ladders do not allow sturgeon to pass upstream.
The fish screen on the Hallwood-Cordua Diversion that begins on the north side of the dam directs juvenile salmon and steelhead migrating downstream into pipes whose outlets below the dam create feeding halls for striped bass. The Brophy or Southside Diversion on the south side of the dam has no fish screen; a series of berms and ponds does a poor job of keeping juvenile salmon and steelhead out of the canals that the diversion feeds.
Downstream fish passage over the dam is a crapshoot. If fish survive the drop, they must still run a gauntlet of stripers in the pool below.
The Army Corps of Engineers owns Daguerre Point Dam. Its maintenance record is poor. The Corps has been dragging its heels about improving or replacing the fish passage facilities at the dam for decades. Improvements to the dam itself would require Congressional approval and appropriations. Yet neither the Corps nor Congress has ever developed an active champion for improving the structure of even for improving the maintenance of the dam.
Fixing these problems would be a good thing. However, the press conference statement by Chuck Bonham that “even in the best of times, it’s a very difficult barrier for salmon and steelhead moving upstream”), and NMFS’s Cathy Marcinkevage’s characterization of passage for salmon as “incredibly challenging,” overstate the degree and extent of the problem facing salmon and steelhead moving upstream. Notwithstanding Ms. Marcinkevage’s press conference assessment that passage improvements at Daguerre “will open up up to 12 miles of habitat for sturgeon, steelhead, and spring-run Chinook salmon,” almost all the salmon and steelhead that spawn in the Yuba River already spawn in the reach upstream of Daguerre Point Dam.
Sturgeon are a different matter, but there is a huge wrinkle that no one is talking about. The jumps on the Daguerre fish ladders, which block passage for sturgeon, also block passage for striped bass, many of which presently collect in the pool at Daguerre’s foot. There is also a sizeable run of American shad on the lower Yuba River. Compared to striped bass, shad are equally if not more efficient in eating juvenile salmon, steelhead, and rainbow trout. The Daguerre fish ladders also block the upstream passage of shad.
Today, Daguerre Point Dam serves as a separation weir, keeping stripers and shad out of the upper 12 miles of the lower Yuba River. This separation gives juvenile salmon, including ESA-listed spring-run Chinook, a chance to rear and grow without threat of being eaten by stripers until the salmon move downstream of Daguerre. For juvenile steelhead, which live at least one year in fresh water before migrating to the ocean, separation also provides over-summering habitat that is free of the presence of stripers and shad. And perhaps most important to anglers, separation provides many miles of outstanding fishing for (mostly) resident rainbow trout upstream of Daguerre Point Dam. Combined with the lower Yuba River’s cold water, separation by Daguerre Point Dam has made the upper reach of the lower Yuba River a destination fishery for steelhead and trout anglers from all over the state.
For every sturgeon that a new completely volitional fishway past Daguerre Point Dam allows to pass, it is reasonable to assume that there will be hundreds or likely thousands of stripers and shad that also pass. Absent mitigation, the lower Yuba River may well become like the lower American River in Sacramento, where the summer fisheries are shad and stripers, and where a resident trout fishery is virtually non-existent.
CDFW, NMFS, and YWA’s managers don’t seem to have considered that there might be a problem with a “completely volitional” passage solution at Daguerre Point Dam. There may be a solution, such as a weir, that could partly or fully mitigate the problem. Such a solution may come out in the necessary environmental review process that the Governor generally disparaged at the press conference; he doesn’t seem to consider that CEQA can improve as well as shut down projects. He also doesn’t seem to consider that applying special rules for the application of CEQA to “environmental” or “beneficial” projects assumes agreement on net benefits, and that his administration’s initiative or blessing does not assure the absence of significant environmental impacts.
Reintroduction of salmon to the North Yuba River
Another consequence of a few managers going off in a room and deciding what’s best for a river, and then announcing to the world why everyone is going to love it, is that it sours or perhaps ends working relationships with the people and entities who thought they were collaborating as equals but who turned out to be less equal than others.
At the instigation of NMFS and CDFW, a number of entities who had previously participated in the “Yuba Salmon Partnership” began discussions in 2020 aimed at establishing a pilot reintroduction of spring-run Chinook salmon to the upper Yuba River watershed. In 2021, these entities did outreach and expanded their numbers. They chose a name, the Yuba Reintroduction Working Group. They established a steering committee consisting of representatives of the USDA Forest Service, US Fish and Wildlife Service, Placer County Water Agency, Nevada Irrigation District, PG&E, American Rivers, South Yuba River Citizens League, and CSPA, in addition to NMFS, CDFW and YWA.
In November 2021, the Steering Committee adopted a charter, whose key action statement said:
“The focus of the Yuba Reintroduction Working Group (YRWG) will be to contribute to the recovery of spring-run Chinook salmon through planning and evaluating their reintroduction into historical habitat in the upper Yuba River watershed, defined as all forks and tributaries of the Yuba River upstream of Englebright Dam.”
The decision to use the term “upper Yuba River watershed” and to not predetermine any location for reintroduction was a deliberate choice tied to engaging as many key stakeholders as possible. Some had concerns about introducing salmon in their (figurative) backyards, i.e., areas where on some level they have responsibilities. Some had concerns about not introducing salmon in their figurative backyards. Some entities assumed that volitional passage was not feasible; others thought that a pilot program could inform habitat suitability in diverse places, which might keep more options (including volitional ones) open. It was, in short, a carefully worded delicate balance whose key was inclusion.
Yuba Water Agency, with the approval of NMFS and CDFW, trampled that balance with the May 16 release of the “Draft Framework North Yuba River Spring-Run Chinook Salmon Reintroduction Plan.” It’s there, fittingly, in black and blue letters: North Yuba it is. Neither the term sheet nor the press conference provided stated dollar amounts for the reintroduction plan or how much YWA will contribute to it. But the principle is clear: the funding (and the work) are directed at the venue of choice.
This is the corporate model of collaboration. Collaborators get to collaborate in implementing the details of the program the senior managers have chosen. There is no question who’s in control. There is little chance for an alternative approach, since priorities for implementation and funding will now be directed within the four corners of the official program.
By Way of Conclusion
As CSPA told the Los Angeles Times, “They’re blowing a lot of sunshine on a deal that in my opinion gives up far too much in terms of flow in the lower Yuba River.” CDFW and NMFS surrendered on a flow-for-passage deal that Yuba Water Agency has wanted and that CSPA has vigorously opposed for over a decade.
In addition to the collateral damage to relationships, the top-down decision making has landed on a plan for fish passage at Daguerre Point Dam that if not modified has a good chance of destroying one of the best recreational fisheries in the state.
CDFW Director Chuck Bonham stated at the press conference, “[W]e can either keep these fights alive, which California is infamous for on water, or we can sit down and actually do something.” The top-down decision-making, on the contrary, may in the context of upstream Yuba River fish passage rekindle old water fights where détente or better had previously been reached. And the imperative to “do something” does not and can never mean giving up on the flows that salmon and other fish need.
Another CSPA Legal Victory: US Supreme Court Denies Appeal, Affirming State Regulation of Merced and Yuba Rivers
The United States Supreme Court has declined to hear an appeal regarding the California State Water Resources Control Board’s authority to set mandatory conditions in the new operating licenses for four hydroelectric projects. The appeal was filed jointly by the Merced Irrigation District (Merced ID), Yuba County Water Agency (YCWA) and the Nevada Irrigation District (NID) in February 2023.
The denial in the Supreme Court’s May 15, 2023 “Order List” means that the State Water Board will set conditions for Merced ID’s Merced River Project and Merced Falls Hydroelectric Project on the lower Merced River; YCWA’s Yuba River Development Project on the lower Yuba, North Yuba, and Middle Yuba rivers; and NID’s Yuba-Bear Hydroelectric Project on the Middle Yuba, South Yuba, and Bear rivers.
The water agency and irrigation districts sought to overturn an August 2022 ruling by the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit Court overruled and vacated orders issued by the Federal Energy Regulatory Commission (FERC) in which FERC held that the State Water Board had “waived” its authority under Section 401 of the Clean Water Act to issue a “water quality certification” for each of the projects.
As part of the licensing process, Section 401 of the Clean Water Act requires license applicants to request that the state 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 these cases, the applicants withdrew their requests for certification before one year expired. FERC found that the State Water Board was complicit in delay by predicting and accepting these withdrawals. After consolidating the cases into one proceeding, a panel of judges from the Ninth Circuit ruled there was no “substantial evidence” that the Board caused delay in these cases.
The California Sportfishing Protection Alliance (CSPA), South Yuba River Citizens League, Friends of the River, and the Sierra Club and its Mother Lode and Tehipite chapters were the environmental litigants in this case. Representing them were Julie Gantenbein of Water Power Law Group and Andrew Hawley of Western Environmental Law Center; Scott L. Nelson of the public interest law firm Public Citizen joined in drafting and filing a brief opposing review by the Supreme Court. Attorneys for environmental litigants coordinated their case with the California Department of Justice, who filed a brief in opposition on behalf of the State Water Board.
As reported by CSPA in April 2023, the Supreme Court also declined to hear a similar appeal regarding California’s authority to add mandatory conditions in the new licenses for two hydroelectric projects on the Tuolumne River. That appeal, filed by Turlock Irrigation District and Modesto Irrigation District, involved a somewhat different fact set but the same type of effort to create and slip through a loophole in the state’s authority to regulate under the Clean Water Act.
The Supreme Court’s denial ends one chapter in the hydropower industry’s attack on Section 401 of the Clean Water Act. The rejection by two federal courts of industry’s faulty and time-consuming legal and procedural schemes helps to restore process discipline to the hydropower licensing process. Regrettably, the water quality certifications for these projects on the Merced River, Yuba River, and Bear River, as well as the projects on the Tuolumne River, are also under legal challenge by their licensees in state court.
Start to finish, CSPA spent over three years in defending Section 401 of the Clean Water Act in these cases. It began by taking the lead in gathering relevant facts and establishing lines of argument against each licensee’s request for FERC to find waiver of state authority. CSPA was well-placed for this task by virtue of 12 years of prior work on the Merced and Yuba-Bear relicensings and 9 years of prior work on the Yuba River Development relicensing. Effectiveness in this work takes tenacity, memory, and skill.
CSPA and allied organizations will continue to defend Section 401 of Clean Water Act, both by upholding state authority and insisting on its legally defensible application.
Chris Shutes, Executive Director of the California Sportfishing Protection Alliance, was a recipient of the 2023 Mark Dubois Award at the California River Awards held on April 21, 2023 at the City Club in San Francisco. Friends of the River holds this annual event to honor an extraordinary person or group of persons whose contributions to restoring our rivers recall the courage, spirit, and impact of Mark Dubois, legendary activist and Director Emeritus of Friends of the River.
In bestowing this award, Friends of the River recognized Chris as an outstanding leader in hydroelectric dam relicensing and in California water rights proceedings. Chris is one of the most experienced and effective advocates in the complex realm of hydropower relicensings. He has worked on numerous federal dam relicensings in California, which can take over a decade to complete. Chris was recognized for his deep knowledge of the regulatory and legal requirements as well as for his technical understanding of hydrologic and biological frameworks. Through his work on water rights at the California State Water Board, Chris has successfully kept more water in our rivers for the fish and wildlife we love. Chris’ acceptance remarks can be found here.
Friends of the River also recognized the leadership and accomplishments of Bill Jennings, CSPA’s former executive director who passed away last December. Bill was legendary activist on behalf of clean water and fish. He fought to uphold the Clean Water Act and was groundbreaking in its use to fight pollution and protect rivers and the Bay-Delta estuary.
All of us at CSPA congratulate Chris Shutes as well as the other recipients of the 2023 Mark DuBois Award. Those recipients were long-time river and wilderness advocate Steve Evans and (in Memoriam) founder Jim Eaton of the California Wilderness Coalition (“CalWild”), staff attorney Bob Wright of Sierra Club California, and (in Memoriam) Jonas Minton, who had a long career as a water policy expert and environmentalist, most notably with the Planning and Conservation League.
The United States Supreme Court will not hear an appeal regarding California’s authority to add mandatory conditions in the new licenses for two hydroelectric projects on the Tuolumne River. The appeal was filed by Turlock Irrigation District and Modesto Irrigation District (Districts), owners of the Don Pedro and La Grange projects.
The Districts sought to overturn a June 2022 ruling by the D.C. Circuit of the U.S. Court of Appeals. That ruling found that the California State Water Resources Control Board had not “waived” its opportunity under Section 401 of the Clean Water Act to issue a “water quality certification” for the two projects. The Districts had alleged that the Board’s denials of certification were part of a “scheme” to delay action. A panel of D.C. Circuit judges found that the State Board had “acted” by denying the Districts certification.
The Supreme Court’s denial without comment ends the two-and-half-year federal battle in the Districts’ war on state regulation. As previously reported, the California Sportfishing Protection Alliance and allies Friends of the River, American Whitewater, Sierra Club, and Tuolumne River Trust opposed the Districts from the start. CSPA and allies, and their attorneys:
- Filed two set of comments in opposition to the Districts’ pleadings that sought a finding of waiver by the Federal Energy Regulatory Commission (FERC);
- Intervened in the Districts’ first legal appeal to the D.C. Circuit; and
- Filed briefs in opposition to the Districts before the D.C. Circuit.
On April 10, 2023, attorneys for CSPA and allies filed a brief in opposition to the Districts’ appeal to the Supreme Court.
Both FERC and the State Water Board also opposed the Districts’ positions throughout these regulatory and legal proceedings.
Water Power Law Group and the Western Environmental Law Center represented CSPA, Friends of the River, American Whitewater, and the Sierra Club in this matter. They worked with the Morrison Foerster law firm, which represented the Tuolumne River Trust.
CSPA’s 30-year advocacy on behalf of salmon and steelhead in the Tuolumne River now shifts to two other fronts. The first front is a series of challenges under state law to the water quality certification for the Don Pedro and La Grange hydroelectric projects. The second front is the proposed Tuolumne River “Voluntary Agreement,” which would drastically reduce flow requirements adopted by the State Water Board in 2018 amendments to the Bay-Delta Plan.
The State Water Resources Control Board has approved a petition that diverts water required to flow into San Francisco Bay to the fish-killing Delta pumps of the State Water Project (SWP) and Central Valley Project (CVP). The higher “Delta outflow” required by the existing Bay-Delta Plan in high-runoff winter and spring periods is designed to move juvenile salmon to the ocean and to keep smelt in the food-rich waters of Suisun Bay.
On February 23, 2023, CSPA and allies filed a Protest and Objection to the “Temporary Urgency Change Petition” (TUCP) filed by the Department of Water Resources and the Bureau of Reclamation. The TUCP requested that water for fish protection and water quality instead be exported south of the Delta, mostly to San Joaquin Valley agriculture. By the time CSPA et al. submitted its Objection 10 days after the TUCP was filed, the State Water Board had already issued an Order approving the TUCP.
The State Water Board’s Order is particularly perfunctory in approving the TUCP. The Order admits that the Board never considered denying the petition. (“Disapproving the TUCP to avoid the potential impacts of the proposed change on fish and wildlife is not considered to be in the public interest for the reasons given in sections 6.2, 6.4, and 6.6 of this Order.”) Though there is a good snowpack, and many reservoir levels have increased substantially, the Order reasons that it might not rain again this year. It concludes that all risk and “uncertainty” must be borne by fish and other things that depend on flow. Both the TUCP and the Order catalogue how fish have done really badly in the past three drought years. However, no level of past harm to fish warrants giving fish the water they are supposed to get.
The Order relies on a one-word characterization of the benefits of a month of high flows into San Francisco Bay. The word, contained in a letter to the Board from the California Department of Fish and Wildlife, is “incremental.” It’s not true. The success of juvenile salmon migrating into the Delta increases enormously during high runoff events such as those in December 2022 and January 2023. That means that further high flows have a chance to benefit large numbers of fish. It is in big water years, or at least big water months, that Delta fish have some chance to recover.
Here is the new reality for standards to protect fish: those standards can be ignored by “real-time” decisions and orders at any time. After all, the weather might turn dry.
The future is now.
Governor Newsom’s February 13, 2023 Executive Order ordering the State Water Board to consider modifying flow and storage requirements for the State Water Project (SWP) and the Central Valley Project (CVP) is his blueprint for the Bay-Delta estuary and every river that feeds it. When requirements to protect water quality, fish, and wildlife are inconvenient, water managers can ignore them.
It’s all voluntary.
For ten-odd years, California’s water managers have promised “Voluntary Agreements” to replace the Bay-Delta Water Quality Control Plan. They could never figure out the details of what to propose.
Now they can just stop, and save us all the agony of listening to them pretend that it has to do with science. They can simply ask the Governor in real time to do whatever they think is best to fill the bottomless pit of their promises to deliver more water than exists.
It’s all voluntary.
The promised Voluntary Agreements are supposed to have Water Rights Decision 1641 as their foundation. Those are the requirements the Governor’s Order just asked the State Water Board to “consider modifying” in what will at worst be a water year with average runoff. When the foundation can go away at any time, there isn’t really a foundation.
It’s all voluntary.
The Voluntary Agreements are supposed to be founded on “real-time operations” and “adaptive management,” as is the proposed Delta tunnel. For decades, water managers have used “real-time operations” and “adaptive management,” to systematically game any rules that reserve water for fish and wildlife. In the hands of water managers, and the craven fish agency managers who have accepted the concept that the minimal use of water for fish and wildlife is their objective, these concepts have no credibility.
Now there is a new game: ask the Governor to suspend the rules. The bottom line about “real-time operations” and “adaptive management” is that the Governor can change rules and standards at any time. Can’t get more real-time or adaptive than that.
When push comes to shove, it’s all voluntary.
Here’s a fun game. One of these reasons from the Governor’s Order for “modifying requirements” on the SWP and CVP is not like the others:
(i) conserve water upstream later in the year in order to protect cold water pools for salmon and steelhead,
(ii) enhance instream conditions for fish and wildlife,
(iii) improve water quality,
(iv) protect carry-over storage,
(v) ensure minimum health and safety water supplies, or
(vi) provide opportunities to maintain or to expand water supplies north and south of the Delta.
Applause if you answered (vi). Embezzling water allocated to water quality and to fish and wildlife, and giving it to farms and cities, is the only objective the Governor’s Order will achieve. Numbers (i)-(iv) have no basis in fact. They are greenwashing. Robbing Delta outflow or other flows won’t achieve any of those things. Any benefit to water quality and fish from storing the Delta’s water in reservoirs is completely at the mercy of water managers.
It’s all voluntary.
As for (v), there is no threat to health and safety water supplies in 2023 from limitations on the SWP and CVP. It is fear-mongering.
The Governor frames the problem thus: California doesn’t capture enough water. It is worth recalling what another governor said about money: California doesn’t have a revenue problem. It has a spending problem. Same is doubly true for water. California has promised far more water than it can deliver. Only it’s much easier and much quicker to generate revenue than it is to increase water supply for farms and cities.
Climate change is not the cause of overallocation of California’s water. Climate change just makes the decades-old problem more obvious.
The more water California’s water managers capture, the bigger the water deficit becomes. Further capture of water irrigates the illusion that water managers are seeking a reachable goal called “water supply reliability.” But collectively, they are promoting a system of water deliveries whose demands will never be met. As the demands of those near the front of the line are met more frequently in any given year, it just whets the appetite of those who miss out.
The “ongoing drought emergency” cited by Governor Newsom is simply this: a State government that sets no limits on water use sets up protections for water quality and for fish and wildlife as the obstacles to “water supply reliability.” That’s because some real wet water is (miraculously) actually dedicated to water quality and fish and wildlife protection. Of course, there isn’t enough water allocated to rivers, estuaries, and bays to steal in order to achieve “water supply reliability.” The goal as framed is unreachable.
When it’s actually done science, the State has recognized that rivers and fish and wildlife need more water, not less. The solution for urban and agricultural water supply is the same as water supply dedicated to protecting water quality and fish and wildlife. It is a water budgeting system that sets enforceable regulatory limits on water deliveries. Those limits must be based on the limits of hydrology and responsible water management, and grounded in the principles of reasonable use and protection of the public trust. It cannot be a system based on the annual discretion of water managers who decide in each case what part of the public’s water they will oh so generously give up. Even less can it be a permanent state of emergency that makes the Governor of California the watermaster of the Central Valley.
Neither the State’s water supply system nor its water quality and fish and wildlife can survive a government in which:
It’s all voluntary.
p.s. Is this too harsh about water agency or resource agency managers? They have a great opportunity to prove it. Let them stand up now to show that they are wrongfully lumped in. Who will be the first water agency or resource agency manager who publicly and vocally objects to the false framing by the Governor? Who will be the first to oppose the February 13 Temporary Urgency Change Petition for the SWP and CVP, that would retroactively eliminate a major flow requirement into San Francisco Bay in February and March of 2023, and that hit the street on the same day as the Governor’s Order? Will anyone at least object that changing the rules will kill the salmon from their own rivers and hatcheries?
CSPA filed comments with the State Water Resources Control Board on February 8, 2023 criticizing a document that claims to provide scientific reasons why small flow increases in Central Valley rivers and the Delta would be good enough to restore crashing native fish species.
The document is the “Draft Scientific Basis Report Supplement in Support of Proposed Voluntary Agreements for the Sacramento River, Delta, and Tributaries Update to the Bay-Delta Water Quality Control Plan.” It is a joint work product of three California agencies: Department of Fish and Wildlife, Department of Water Resources, and State Water Board.
The incremental flows the Draft Supplement analyzes are those conceptually proposed in a March 2022 “Voluntary Agreement Package” signed by the state and a collection of water users.
CSPA’s comments focus on several reasons the Draft Supplement and the Voluntary Agreements are misleading and wrong:
- The Draft Supplement doesn’t explain the operating rules that would make water agencies add flows on top of the flows that result from existing requirements.
- The Draft Supplement thus approximates the flows proposed by the proponents of the Voluntary Agreements, and almost certainly inflates those flows when it models them.
- The Draft Supplement doesn’t explain how often and for how long the Voluntary Agreements would increase flows past flow thresholds that science has shown are key for fish.
- The Draft Supplement ignores the role that water management in Critically Dry years and droughts plays in destroying native fish populations.
CSPA asks the State Water Board to:
- Require a complete description of the Voluntary Agreement flows and how they would work;
- analyze how those flows would actually benefit fish; and
- analyze the benefits of those flows specifically in the face of droughts and dry-year sequences.
AquAlliance and the California Water Impact Network joined in CSPA’s comments.
CSPA also signed on to the comments of Natural Resources Defense Council et al. NRDC et al. used extensive scientific citations to refute the thesis that lack of physical habitat is limiting for key native fish species and that physical habitat improvements such as in-channel and floodplain restoration can substitute for adequate flow.
The California Sportfishing Protection Alliance and the fish of California lost Bill Jennings on December 27, 2022. Above all, Bill was a relentless activist. For over 40 years, he used the law, meticulously documented data, an irascible wit, and a stinging pen to defend and protect his beloved Bay-Delta Estuary and all the rivers that feed it.
Bill was chairman of CSPA’s board of directors since 1988 and its executive director since 2005. He led CSPA in decades of battles to increase flows into the Sacramento – San Joaquin Delta and through to San Francisco Bay. He campaigned tirelessly against multiple incarnations of canals and tunnels around the Delta. Through his “Watershed Enforcers” program, Bill chased down stormwater, wastewater, and agricultural polluters all over the state.
Bill went through hundreds of regulatory processes at the State Water Resources Control Board, regional water quality control boards, and other agencies. He showed up, presented data, and demanded solutions. Bill was swift and sure with litigation when agencies fell short.
Born in Kentucky in 1943, Bill grew up in northern Kentucky and southern Ohio. He attended the University of Tennessee, where he became active in the Civil Rights Movement. For several years during the Vietnam War, Bill was also a leading figure in draft resistance in Tennessee.
As a young man, Bill spent many years traveling back and forth across the country, selling pipe tobacco products out of his van. He spent several summers in West Yellowstone, Montana, where he learned to fly fish. Later he spent many summers camping in Yosemite Valley.
Bill settled in Stockton in the ‘80s, where he opened and ran a store that doubled as a fly fishing and tobacconist shop.
In the late ‘80s, Bill helped form and became president of the Committee to Save the Mokelumne River. Following multiple fish kills in Camanche Reservoir and the lower Mokelumne River, he initiated a dizzying series of actions at the State Water Board, San Joaquin County Superior Court, and the Federal Energy Regulatory Commission. As a result, the East Bay Municipal Utility District cleaned up the Penn (copper) Mine, increased river flows in the lower Mokelumne River by a factor of five, and added oxygen to the water supply of an upgraded Mokelumne River Fish Hatchery. Today, the Mokelumne River is one of the most important sources of salmon in California.
From 1995-2005, Bill was the head of Deltakeeper, which deployed several vessels to monitor water quality throughout the Delta. Bill and his team analyzed many of the collected samples in the kitchen and other rooms set up in Bill’s waterfront office and home. The data they collected also provided evidence for regulatory and legal actions.
In 2005, Deltakeeper dissolved, and Bill became CSPA’s executive director. Under his leadership, CSPA expanded its Watershed Enforcers program, carrying 5-10 water quality lawsuits at any given time. The program has cleaned up dozens of wastewater and industrial stormwater sources of pollution. It has also generated millions of dollars in settlement fees that have provided grant funding to watershed, fishing, and environmental nonprofit organizations.
Bill led CSPA in developing extensive evidentiary records in the State Water Board’s 2010 Delta flow criteria hearings and in 2015-2018 hearings on the proposed “twin tunnels” that would have diverted water under the Delta. He also led two sets of lawsuits against the State Water Board’s changes to flow and water temperature requirements during droughts; two of these lawsuits are ongoing.
For over three decades, Bill had his finger on the pulse of California water politics and policy. He was known throughout the broader California water community as blunt and gruff, but personally congenial. He was a board member of the California Water Impact Network and served for many years on the Restore the Delta board.
Bill was also very well known in his home town of Stockton and throughout San Joaquin County, where he was active in socially progressive causes.
Bill received countless awards and honors. He was recognized by San Joaquin County, the California State Legislature, and the U.S. Congress. He received awards from the California Department of Fish and Game and the American Fisheries Society. He was recognized formally and informally by many fishing groups, and spoke at many public functions. In early 2022, Bill was elected to the California Outdoors Hall of Fame.
Bill leaves an enduring and unique legacy of protecting California fisheries, habitat, and water quality. The breadth and depth of his achievements are unlikely to be equaled.
Contributions in Bill’s memory can be made to the Stockton-based organization he directed, the California Sportfishing Protection Alliance, whose mailing address is P.O. Box 1061, Groveland, CA 95321. Donations can also be made to CSPA online.
In Memory of Bill:
- Bill Jennings, legendary California fishery and water quality activist, dies at age 79; Daily Kos
- Bill Jennings, Stockton’s legendary advocate for California fisheries, water quality, dies; Stockton Record
- Eulogy for a Deltakeeper; Stocktonia
- Delta advocates, Marine, 106, teen with ‘caring heart’: Stockton remembers 10 people we lost in 2022; Stockton Record
CSPA submitted Comments on December 14, 2022 on the Draft Environmental Impact Report (DEIR) for a proposed new tunnel to divert massive amounts of water under the Sacramento – San Joaquin Delta. The proposed tunnel is the latest scheme by the California Department of Water Resources (DWR) to more reliably ship more northern California water south.
CSPA’s comments show that the DEIR violates the Delta Reform Act and the California Environmental Quality Act (CEQA). The DEIR must be revised and recirculated.
DWR has branded its project as the upbeat-sounding “Delta Conveyance Project.” This new branding of reduced flow into the water-starved Delta is only slightly less annoying than DWR’s previous branding, the “California WaterFix.” The addiction to excessive water exports from the Sacramento Valley to the San Joaquin Valley and southern California still requires court-ordered rehab.
The DEIR violates the Delta Reform Act.
The Delta Reform Act of 2009 requires making “protecting, restoring, and enhancing the Delta ecosystem” a “co-equal goal” with water supply reliability. The Delta Reform Act also requires that any new system to convey water past the Delta “include appropriate Delta flow criteria.” There is not a glimmer of any of this in the thousands of pages of the DEIR.
Instead, the DEIR opts for the traditional CEQA dodge that if the proposed project doesn’t make an already terrible situation worse, there is no impact. The DEIR views the Delta ecosystem as a constraint on water supply, not as “co-equal.” The DEIR doesn’t say a thing about flows needed to restore the Delta. Instead, the DEIR evaluates whether the Delta tunnel would be able comply with grossly inadequate flow standards that have created the Delta’s existing ecological crisis.
The DEIR violates CEQA.
CEQA requires that an analysis look at the whole of a proposed project. The DEIR doesn’t come close on this score, either. As in the 2015-2018 “WaterFix” proposal, DWR still has not decided if the Bureau of Reclamation and the Central Valley Project (CVP) are in or out. It’s the same story this time around: DWR wants the opportunity for the CVP to sign on, but doesn’t analyze the impacts if it does.
The DEIR does not describe reservoir operations of DWR’s State Water Project (SWP) and Reclamation’s CVP as they exist today. Instead, the DEIR says there are no plans to change reservoir operations. The DEIR throws existing operations into a model, turns the crank, and reports the results. The DEIR then says ‘see, not much changed.’ It is a big exercise in making the reader forget: that there is no legal requirement behind how the DEIR’s modelers told their model to model reservoir operations. There is no existing requirement to make DWR do in practice what its modelers did in the model.
Models don’t operate the SWP and the CVP. People do. Operators make decisions based on policy, risk tolerance, and continuous evaluation of conditions. The DEIR doesn’t describe the decisionmaking processes of project operators, and particularly how those processes are reasonably foreseeable to change if a tunnel to export water under the Delta is built. That’s misleading and against the law. It’s also an open door for DWR’s managers and contractors, and their armies of lawyers and consultants, to game the rules to squeeze more water through the new tunnel.
The DEIR dismisses impacts to Delta water quality.
The DEIR admits that salinity in the Delta will be “substantially” and “measurably” higher in some months of below normal and dry water years. But the DEIR claims no impact, because the salinity increases wouldn’t take salinity above the existing inadequate standards. Except, that is, when the State Water Board allowed “temporary urgency changes” after one dry year, at which point even the existing weak standards wouldn’t count.
It will take an enormous coalition effort to beat this Delta-killing project.
During DWR’s last run at tunneling under the Delta, CSPA took on the whole DEIR from soup to nuts. This time, CSPA has focused on what it does uniquely or particularly well, and signed on to other excellent comments from the National Resources Defense Council, Sierra Club California, and AquAlliance.
CSPA expects DWR to certify its EIR later this year, and that litigation will follow.
CSPA expects that by 2024, a broad coalition of environmental and fishing groups, Delta counties, environmental justice organizations, and others will be working at the State Water Board to oppose the water rights changes that would be needed before the Delta tunnel project could start construction.
Additional note: DWR’s email address did not accept the April 2020 scoping comments of CSPA et al. on the Delta tunnel project, even though CSPA submitted those comments on time. As a result, DWR did not respond to CSPA et al.’s scoping comments. CSPA also re-submitted CSPA et al.’s scoping comments as supplemental comments on the DEIR.
The California Sportfishing Protection Alliance (CSPA), along with American Whitewater (AW), scored a significant victory on October 20, 2022 when the Federal Energy Regulatory Commission (FERC) issued an Order reaffirming a requirement that Pacific Gas and Electric Company must construct a “Poe Hiking Trail” along the North Fork Feather River.
The Order gave PG&E 90 days to file with FERC a plan and schedule for construction of a trail in the lower reaches of the Feather River Canyon. PG&E must also consult with the U. S. Forest Service, California Department Fish and Wildlife, Butte County, AW, CSPA, and a person who has already built part of the trail, regarding the final route for the Poe Hiking Trail.
PG&E fought this recreational enhancement near its facilities for over a decade. PG&E increased its opposition after 2018, when FERC issued PG&E a new license to operate the Poe Powerhouse on the river. The hydropower project is located in large part within the Plumas National Forest.
In March 2007, as part of the relicensing process, FERC staff issued an Environmental Assessment for the project, finding: “There is need for recreation enhancement in the project area, which is in a particularly scenic reach of the [North Fork Feather River], and [that] these enhancements would likely be utilized immediately by recreational users.” In 2019, FERC ordered PG&E to conduct a feasibility study on improving the trails near the Poe Powerhouse.
PG&E completed the feasibility study, which reported: “The backdrop [of the Poe Hiking Trail] is stunning and allows for a valuable recreational trail experience that provides amazing vistas and access to the North Fork of the Feather River.” But PG&E disregarded the positive conclusions its own consultants drew in the study. PG&E did not include construction of the hiking trail when PG&E filed its required Recreation Plan in September 2020. Instead, PG&E’s Recreation Plan strongly argued against the feasibility study, notably claiming that the proposed trail would cost $2.5 million more than the feasibility study estimated.
Nonetheless, in February 2022, FERC ordered PG&E to consult with stakeholders on a final route for the Poe Hiking Trail and to provide, within six months, a plan and schedule for constructing the trail. In March 2022, PG&E filed a “rehearing request” (appeal) with FERC to continue to fight against the hiking trail requirement.
In yet another effort to avoid beginning work on the ordered Poe Hiking Trail plan, PG&E filed a request with FERC in August 2022 for an extension of time to file the plan until FERC issued a decision on PG&E’s rehearing request.
On August 18, 2022, CSPA and American Whitewater filed a Complaint of Non-Compliance with License Requirements, opposing PG&E’s request for extension of time “because the request is not based on [PG&E’s] need for additional time to continue good-faith work to comply with license requirements but is rather an attempt to stay the Commission’s Recreation Plan Order pending the Commission’s further reconsideration of PG&E’s request for rehearing.” CSPA and AW’s complaint requested that FERC promptly issue an order instructing PG&E to fulfill its Poe Hiking Trail license obligations in good faith.
Subsequently, FERC issued the October 20 Order denying the rehearing request and giving PG&E 6 months to consult and submit a plan. To its partial credit, PG&E’s staff has now begun scheduling the required consultation.
It just should not be this hard. PG&E’s managers need to stop trying to reinvent terms because they don’t like outcomes. As the FERC Order put it: “Even if the cost for the trail were closer to PG&E’s estimate, we would continue to find construction of the trail feasible.”
And CSPA and AW, and other NGO hydropower advocates, should not have to make half a dozen filings over 15 years to make sure that PG&E does not wiggle out of a simple mitigation.
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.