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Water for Fish Gulped by Delta Pumps; CSPA Objects to Circular Excuses

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.

Posted in Chris Shutes, Enforcement, State Board Bay-Delta Standards | Comments Off on Water for Fish Gulped by Delta Pumps; CSPA Objects to Circular Excuses

Water Quality, Fish and Wildlife Protection: It’s All Voluntary

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?

Posted in Chris Shutes, Enforcement, State Board Bay-Delta Standards | Comments Off on Water Quality, Fish and Wildlife Protection: It’s All Voluntary

CSPA Disputes “Scientific Basis” of Voluntary Agreements

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.

Posted in Chris Shutes, State Board Bay-Delta Standards | Comments Off on CSPA Disputes “Scientific Basis” of Voluntary Agreements

Legendary California Fishery and Water Quality Activist Bill Jennings Dies at Age 79

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:

Posted in Water Quality | Comments Off on Legendary California Fishery and Water Quality Activist Bill Jennings Dies at Age 79

CSPA Comments on Deficient Environmental Impact Report for Proposed Delta Tunnel

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.

Posted in Chris Shutes, No Tunnels Campaign | Comments Off on CSPA Comments on Deficient Environmental Impact Report for Proposed Delta Tunnel

CSPA Marks Poe Hiking Trail Victory over PG&E

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.

Pool in Poe reach of the North Fork Feather River (photo by Chris Shutes)

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.

Feather River Canyon in Poe reach of the North Fork Feather River (photo by Chris Shutes)

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.

Posted in Cindy Charles, Hydroelectric (FERC) | Comments Off on CSPA Marks Poe Hiking Trail Victory over PG&E

CSPA Fall 2022 Newsletter: The Tyranny of the Deal, Defending Section 401 of the Clean Water Act, & CSPA Told You So

CSPA Newsletter ScreenshotThe Fall 2022 Edition of the California Sportfishing Protection Alliance Newsletter is out now. Below is the introduction to the newsletter by Chris Shutes, CSPA’s Acting Executive Director.

From the Desk of Chris Shutes: Changes at CSPA

Bill Jennings has temporarily stepped aside from his role as CSPA’s Executive Director in the wake of cascading health problems. These problems began when another driver ran a stop sign and broadsided Bill’s car in Stockton in July 2021. Bill’s wounds seemed manageable at first, but he has been unable to recover.

CSPA looks forward to Bill’s complete recovery and his return to diverse projects and a busy schedule. In the meantime, Bill remains as Chairman of CSPA’s Board of Directors.

I have taken on the role of Acting Executive Director on an indefinite basis.

No one can take the place of Bill Jennings, who for a hundred good reasons is a legend in California water and fisheries advocacy. The best I can do is continue the projects and initiatives that Bill undertook and administered, even as CSPA looks for new actions consistent with our mission of protecting fisheries, habitat, and water quality.

The full CSPA newsletter can be downloaded below. Articles include: The Tyranny of the Deal; Defending Section 401 of the Clean Water Act: We Whipped ‘Em Once, We Whipped ‘Em Twice; CSPA Told You So; and more!

Posted in Newsletter | Comments Off on CSPA Fall 2022 Newsletter: The Tyranny of the Deal, Defending Section 401 of the Clean Water Act, & CSPA Told You So

Court Victory for California Water Quality and Rivers – and CSPA

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.

Posted in Chris Shutes, Hydroelectric (FERC), Water Quality | Comments Off on Court Victory for California Water Quality and Rivers – and CSPA

D.C. Court Denies Waiver of Clean Water Act for Tuolumne River Hydro Projects; Ruling Vindicates CSPA and Allies

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.

Posted in Water Quality | Comments Off on D.C. Court Denies Waiver of Clean Water Act for Tuolumne River Hydro Projects; Ruling Vindicates CSPA and Allies

CSPA Develops and Supports Changes to Hydropower Licensing

CSPA 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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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.

Posted in Chris Shutes, Hydroelectric (FERC) | Comments Off on CSPA Develops and Supports Changes to Hydropower Licensing

CSPA Objects to Weakened Delta Water Quality without Strict Diversion Limits and a Ban on Transfers

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.

Posted in California Delta, Chris Shutes, Water Quality | Comments Off on CSPA Objects to Weakened Delta Water Quality without Strict Diversion Limits and a Ban on Transfers

CSPA Tells Water Board: Limit Shasta Reservoir Releases and Sacramento River Deliveries in 2022 to Save Fish and Water in ’22 and ‘23

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.

Posted in Chris Shutes, Fisheries, State Board Bay-Delta Standards, Water Quality | Comments Off on CSPA Tells Water Board: Limit Shasta Reservoir Releases and Sacramento River Deliveries in 2022 to Save Fish and Water in ’22 and ‘23

CSPA & Allies File Lawsuits on Groundwater Management in Butte, Colusa & Vina Subbasins

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.

Posted in Water Quality | Comments Off on CSPA & Allies File Lawsuits on Groundwater Management in Butte, Colusa & Vina Subbasins

SF Estuary/Delta Needs Long Overdue Protections from Ballast Water Discharges

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.



Posted in Water Quality | Comments Off on SF Estuary/Delta Needs Long Overdue Protections from Ballast Water Discharges

Bill Jennings Elected to California Outdoors Hall of Fame 2022

CSPA is pleased to announce that CSPA’s Executive Director Bill Jennings has been elected to the California Outdoor Hall of Fame as part of the class of 2022.

Fighting to protect fisheries and water quality for over 25 years, Bill has chaired CSPA since 1988. He is a Board Member of the California Water Impact Network and Restore the Delta. Between 1995 and 2005, he served as Deltakeeper. He was a founder and Chairman of the Committee to Save the Mokelumne.

Bill has received numerous previous acknowledgments, including:

  • The International Conservation Award from the Federation of Fly Fishers;
  • The Director’s Achievement Award from the Department of Fish and Game;
  • The Conservation Achievement Award from the California-Nevada Chapter of the American Fisheries Society;
  • The Quality of Life Award from the Land Utilization Alliance; and
  • The Delta Advocate Award from Restore the Delta.

In addition, the Outdoor Writers Association of California recognized Bill as Outdoor Californian of the Year, and the Delta Fly Fishers selected him as Fly Fisherman of the Year. His success in achieving the historic cleanup of Penn Mine on the banks of the Mokelumne River led to awards to both the California Sportfishing Protection Alliance and Committee to Save the Mokelumne by the California Water Policy IX Conference.

Under Bill’s leadership, CSPA has become a leading actor in California water policy and fisheries protection through “in-the-trenches” engagement with regulators. Over the past thirty years, CSPA has had a consistent presence, most often by Bill personally, in proceedings before the State Water Resources Control Board and regional water quality control boards. Bill’s insistence on technically competent advocacy, combined with his willingness to litigate to enforce standards and laws, has made CSPA a voice for anglers far greater than CSPA’s modest organizational structure would suggest.

Less known about Bill are the years he spent fly fishing and traveling in Yosemite and Yellowstone national parks, and many of the other major and not-so-major fishing and outdoor venues across the western United States. As with many of the most effective fisheries advocates, he is strongly motivated by personal connections to the places he defends.

To win induction into the California Outdoors Hall of Fame, nominees must be named on 60 percent of ballots. Voters include previous inductees and major figures in the outdoor industry. Anybody can nominate a candidate. To be considered, a candidate must meet two achievements. They must have: 1) have inspired thousands of Californians to take part in the great outdoors and/or conservation, and 2) taken part in a paramount scope of adventures.

Usually, the induction ceremony is held at the end of January. However, due to the ongoing COVID pandemic, it has been delayed. When a day and time for the induction ceremony is selected, CSPA will post an announcement.

Posted in Water Quality | Comments Off on Bill Jennings Elected to California Outdoors Hall of Fame 2022

The Merry-Go-Round of Denial Must Stop – Transfer of Public Trust Water to Agriculture Is On Repeat

The California Sportfishing Protection Alliance and allies AquAlliance and California Water Impact Network (CWIN), filed an objection on January 7, 2022  to yet another petition to weaken flow and salinity standards that protect the Sacramento-San Joaquin Delta.  The objection urges California’s State Water Board to reject the Temporary Urgency Change Petition (TUCP) submitted by the U.S. Bureau of Reclamation and the California Department of Resources (DWR) for the time period from February 1 to April 30, 2022.

This is the second year in a row Reclamation and DWR are seeking a pass from responsibly and lawfully managing their operations.  Stopping these waivers of environmental protections is critical to avoiding a repeat of 2021’s catastrophic fish kills and to protecting water quality for all citizens of California.

In June 2021, in spite of vigorous protests from CSPA and many others, the Board waived or weakened water quality requirements for Reclamation’s Central Valley Project (CVP) and DWR’s State Water Project (SWP).  The Board’s disastrous decisions played a major role in a 2021 survival rate of less than 3% of juvenile winter-run salmon.  Other native fish, including fall-run salmon, Delta smelt, and longfin smelt, also had another terrible year because of low flows and high water temperatures.

The stage was set when Reclamation and DWR over-delivered water to CVP and SWP contractors in 2020 and early 2021, instead of responsibly managing Delta operations and upstream reservoirs to protect public trust resources.

CSPA’s objection says the State Water Board should deny the TUCP for 2022.  The Board must use its authorities under the reasonable use and public trust doctrines.  The Board must set strict limits on SWP and CVP deliveries to all water contractors until Delta water quality standards are met and reservoir operations are managed to protect public trust resources.  Each time the Board weakens standards, the impacts to fish get worse and the road to recovery becomes steeper.  Fish populations that suffered under TUCP’s in 2021 have still not recovered from the TUCP’s in the previous drought of 2014-2015.

Battles on Many Fronts

Other recent actions that CSPA, CWIN and AquAlliance have taken to fight against the repetitive weakening of water quality and temperature standards include:

  • CSPA and allies submitted comments to the State Water Board on January 7, 2022 on the Board’s Draft Order on Reconsideration for the 2021 TUCP on Delta operations and the 2021 Sacramento River Temperature Management Plan (TMP).  The comments state that the Board’s actions in approving that TUCP and the TMP were unlawful and that the effects to fish were  unreasonable and outrageous.  The comments ask the Board to issue a new Order that acknowledges the unreasonable use of water and resulting unreasonable effects on fish and wildlife.  It also asks the Board to set new procedures for:
    • Determining the reasonable use of water in dry year sequences;
    • Limiting water deliveries consistent with reasonable use; and
    • Protecting public trust resources consistent with legal responsibilities.
  • CSPA and allies also filed a Petition for Writ of Mandate asking a court to set aside the State Water Board’s June 1, 2021 approval of Reclamation and DWR’s TUCP for Delta operations.
  • In addition, CSPA and allies filed a Petition for Writ of Mandate asking a court to set aside the State Water Board’s approval on June 10, 2021 of Reclamation’s Sacramento River Temperature Management Plan for Water Year 2021.

The merry-go-round of the State Water Board’s serial waivers of water quality and temperature standards must stop.  It is imperative for the Board to responsibly manage California’s water during drought, a historically common occurrence.

Posted in California Delta, Water Quality | Comments Off on The Merry-Go-Round of Denial Must Stop – Transfer of Public Trust Water to Agriculture Is On Repeat

CSPA and Allies Support Increased Tuolumne River Flows – Again

CSPA and ten allied conservation groups filed comments on January 7, 2022 in overall support of the Water Quality Certification (WQC) for the relicensing of the Don Pedro and La Grange hydroelectric projects on the Tuolumne River.  The State Water Resources Control Board (Board) issued the WQC in January 2021.  As it stands today, the WQC would require substantially increased flows in the lower 52 miles of the Tuolumne River.  Ongoing litigation by CSPA and others could increase Tuolumne River flows even further.

In February 2021, CSPA and allies petitioned the Board to reconsider two narrow issues in the WQC: June flows in the lower 26 miles of the river, and the amount of augmentation of large wood the WQC requires.

Also in February 2021, the license holders of the projects, Turlock Irrigation District and Modesto Irrigation District (Districts), as well as the City and County of San Francisco (City) and the Bay Area Water Supply and Conservation Agency (BAWSCA), filed voluminous petitions for reconsideration asking the Board to rescind the WQC entirely.

Many of the arguments in the Districts’ and the City’s February 2021 petitions to the Board were grounded in a Rule concerning water quality certifications the that Trump administration implemented in 2020.  That rule gutted the ability of states to protect water quality, including flow.  The Biden administration has initiated a new rulemaking to substantially unravel the Trump-era Rule.  In October 2021, a federal judge issued an Order Vacating the Trump Rule.

Most of the rest of the legal arguments in the petitions for reconsideration of the Districts, the City, and BAWSCA were incorrect for other reasons.  The comments of CSPA and allies cite to controlling, foundational case law on water quality certifications to rebut those arguments.

For the past ten years, CSPA, the Tuolumne River Trust (TRT), and others have advocated for and suggested approaches to managing water supply and demand that would mitigate the water supply lost in restoring adequate flows to the Tuolumne River.  The Districts, the City, and BAWSCA, in contrast, all strongly opposed analysis of such mitigation measures throughout the licensing and WQC proceedings.  In recent comments in several venues, such as planning for groundwater management in the Modesto and Turlock subbasins, CSPA and TRT have continued to encourage consideration of such alternatives.

The timeline for the Board’s response to the petitions for reconsideration is unknown but likely short.

Note: The Districts are also appealing in the Federal Court of Appeals for the D.C. Circuit a decision by the Federal Energy Regulatory Commission to deny waiver of the WQC.  CSPA and four other conservation groups have intervened in that case in support of FERC’s decision denying waiver.  The current responses to the Board are made to with the understanding that a federal finding of waiver would make the petitions to the Board moot.

Posted in Hydroelectric (FERC) | Comments Off on CSPA and Allies Support Increased Tuolumne River Flows – Again

CSPA Wins Settlement to Remove Phone Cable from Tahoe; Cable Contains 63 Tons of Lead

On November 4, 2021, CSPA won settlement of a lawsuit it filed against AT&T’s PacBell subsidiary regarding eight miles of abandoned phone cable on the bottom of Lake Tahoe. As a result of the settlement, PacBell will remove the decaying cable. The cable contains 63 tons of lead.

Cable in Tahoe

Local divers discovered the abandoned cables while removing other trash from the lake bottom. CSPA filed the lawsuit in January, 2021. CSPA provided the legal muscle and expertise to turn awareness of a serious problem into an action to fix it. CSPA’s lawsuit alleged violations of the federal Resource Conservation and Recovery Act of 1976 and California’s Safe Drinking Water & Toxic Enforcement Act of 1986 (Proposition 65).

PacBell switched to fiber optic phone cables over 30 years ago and abandoned the old cables that used a heavy lead sheath to shield copper transmission wires. The cables contain approximately 3 pounds of lead per foot. They extend for 8 miles along the western shore of Lake Tahoe from Baldwin Beach to Rubicon Bay, including across the mouth of Emerald Bay. While the amount of lead the cables have leached into Lake Tahoe is unknown, attorneys for CSPA found that three feet of cable left for one day in in a tub of Lake Tahoe water leached 4800 times the amount of lead allowed to enter a source of drinking water.

Cable cross section showing lead

The settlement obtained by CSPA requires PacBell to get all the necessary permits for the cable removal. PacBell will then put the removal work out for bid. If permitting requirements push the removal cost above $1.5 million, the sides will need to come together to reassess.

In a press release, CSPA executive director Bill Jennings noted: “Lake Tahoe is one of California’s iconic waterways. We’re proud to help get this toxic garbage out of the Lake.”

CSPA’s “Watershed Enforcers” campaign programmatically uses legal action to correct violations of water quality laws and regulations. The law offices of Andrew Packard coordinated the legal team that represented CSPA in this matter.

Posted in Water Quality | Comments Off on CSPA Wins Settlement to Remove Phone Cable from Tahoe; Cable Contains 63 Tons of Lead

CSPA Fall 2021 Newsletter: Wildfire strikes our favorite fishing spots, CA Clean Water Act update, and defending the Tuolumne and Yuba Rivers

The Fall 2021 Edition of the California Sportfishing Protection Alliance Newsletter is out now. Below is the introduction to the newsletter by Bill Jennings, CSPA’s Executive Director.

From the Desk of Bill Jennings

I hope each of you have had an opportunity to wet a line during this second drought year. Fisheries have grievously suffered, as they did during the critical drought years of 2014 and 2015. California is experiencing its worst drought since the late 1800s, as measured by both lack of precipitation and high temperatures. But there is still so
much to protect and enjoy.

August 2021 was the driest and hottest August on record, and the water year that ended last month was the second driest on record. Excessive water deliveries to settlement and exchange water contractors have depleted State and Federal Project reservoirs to historic low levels of storage. Another drought year will bring California into uncharted territory, and that appears to be likely, given another La Nina.

In the Central Valley, flow and water quality is a continuum. What happens in the estuary affects flow and water quality in the high Sierras. Water storage in the rim reservoirs directly affects both Delta flow/water quality and Sierra storage reservoirs. CSPA labors in the trenches of the regulatory and legal processes, and sometimes we get a little wonky in our posts. But it’s all focused on securing adequate flow and water quality, from the Sierras through the estuary.

For example, following an extensive administrative proceeding, CSPA is preparing twin lawsuits over the weakening of standards and violation of those weakened standards regarding the 2021 Sacramento River Temperature Management Plan and the weakening and violations of flow/water quality standards in the Delta. These lawsuits represent an effort to ensure that future management of California’s water projects protects fisheries, even in dry years.

Most of us at CSPA fish, and our fishing like everyone else’s has suffered during the drought. We begin this newsletter with “Protecting Places Near and Dear” by Chris Shutes on a few of his fishing experiences over the year. Following that is an extensive article “CSPA Is Working Hard to Restore & Defend the Clean Water Act in California” by Cindy Charles regarding our efforts to restore and defend the Clean Water Act in California. This article is subdivided into sections on EPA’s efforts to revise Section 401 of the Act, our efforts fighting waivers of 401 Water Quality Certifications, and our intervention to support certification decisions on Tuolumne River hydropower projects. We then feature another article, “CSPA & Allies Granted Intervention in Court Case to Support Certification Decision on Tuolumne River Hydropower Projects” by Cindy on our federal lawsuit against the Bureau of Reclamation over excessive groundwater pumping by Sacramento River Water Districts. We conclude with an article by Chris and Cindy about the fight for flows and habitat restoration on the Yuba River.

I believe we can reasonably say that CSPA’s involvement has made California fisheries and water quality considerably better. In addition to our Main Website that periodically chronicles our efforts, please check out our Fisheries Blog that features weekly posts on diverse aspects of California’s fisheries.

We don’t accept funds from sources that would limit our efforts to protect fisheries. So we rely on your donations and memberships. Thank you for your continuing support. Cheers!

Posted in Newsletter | Comments Off on CSPA Fall 2021 Newsletter: Wildfire strikes our favorite fishing spots, CA Clean Water Act update, and defending the Tuolumne and Yuba Rivers

Success in Stopping A Very Bad Westlands Water Deal

CSPA, along with other environmental groups and fishing organizations, tribes, water agencies and counties, has prevailed in a lawsuit to stop the Westlands Water District from obtaining a permanent water contract with the U.S. Bureau of Reclamation.  On October 27th, a Fresno County judge declined to validate a contract granting permanent access to water from the Central Valley Project.  The contract would have given Westlands permanent access to up to 1.15 million acre-feet of water per year for irrigation and other private purposes.

Westlands has been operating on an interim contract basis, renewing its water deal with the Bureau every two years.  It sought to make the contract permanent, but did not fulfill the lawful requirements of including details of payments to the government or public notice.

In his Order denying validation, Judge Tharpe wrote that the incomplete contract lacked financial terms and proper public notice under the Brown Act and could not be validated.

The law offices of Stephan Volker represented CSPA in this matter.

This victory is a significant setback to the last-minute maneuver of the Trump administration to provide  water to Westlands at the expense of the public interest in the protection of fisheries and the environment.

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