CSPA in the News
California Drought: Groups sue Bureau of Reclamation against extra groundwater pumping plans In North ValleySep 7, 2021 Read Online
- Reckless Water Transfer Would Further Jeopardize Fisheries in 2021 & 2022
- Court Ruling Finds FERC 401 Waiver Not Justified – Important Implications for California Hydropower Project Licenses
- CSPA Protests State Water Board’s Protection of Irrigated Agriculture at the Expense of Fisheries and the Environment
- CSPA and Allies Oppose Proposed SFPUC General Manager and City of San Francisco’s Lawsuit Against State Water Board
- CSPA & Allies Tell Biden Administration Not to Endorse Flawed Voluntary Agreements
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The California Sportfishing Protection Alliance, California Water Impact Network, and AquAlliance filed comments to the State Water Resources Control Board (State Water Board) on July 16, 2021 in opposition to the proposed water transfer of up to 100,000 acre-feet of water from New Melones Reservoir. The transfer is requested by South San Joaquin Irrigation District and Oakdale Irrigation District (Districts). The proposed recipient is the San Luis and Delta-Mendota Water Authority (SLDMWA).
This proposed water transfer is reckless in the face of the ongoing severe drought, because it would greatly reduce water storage in New Melones Reservoir. Water in New Melones is now being used to protect Delta fisheries, and New Melones storage is critical as a reserve in case 2022 is dry.
On July 12, the Districts filed amendments to their 2021 petition. The amended petition seeks to add San Luis Reservoir as an additional temporary point of diversion and rediversion, and to extend the time to deliver the water for use through February 2023. CSPA and allies filed supplemental comments to the State Water Board on July 19, continuing to oppose the proposed transfer.
At first, even the Bureau of Reclamation (Reclamation) objected to the proposed transfer in a letter to the Counsel to the Districts. In a June 22 letter to the Districts (included as an attachment to CSPA et al.’s July 16 comments), Reclamation stated that there was not enough inflow to New Melones in 2021 to support the transfer. Further, Reclamation reminded the Districts that Reclamation’s 1988 Agreement with the Districts allows use of the Districts’ “conservation account” in New Melones Reservoir only for in-District use.
But in a sudden turnaround, without public notice or explanation, Reclamation issued on August 5 a Draft Environmental Assessment (DEA) in support of the Districts’ proposed 2021 transfer of 100,000 acre-feet of water to SLDMWA.
Undaunted, CSPA and allies sent a comment letter to Reclamation on August 12 regarding the DEA. These new comments stated that the DEA is legally inadequate because it fails to analyze the contractual change in Reclamation’s implementation of the 1988 Agreement for the operation of New Melones Reservoir. This change will have long-term significant impacts on the environment. Reclamation needs to issue a draft environmental impact statement (EIS) that discloses such impacts and analyzes potential mitigations for such a major change. In addition, Reclamation needs to issue a separate draft EIS that discloses the significant impacts of the proposed transfer’s reduction of CVP storage both in 2021 and 2022.
Given the extreme drought and the critical need for carryover storage in New Melones, CSPA and allies strongly urge Reclamation not to allow the Districts to transfer water from the conservation account, either in this case or in the future. CSPA and allies also recommend that the Districts withdraw their proposed water transfer.
Moreover, the State Water Board should disallow the transfer even if Reclamation accedes. The State Water Board needs to cease its deferrals to Reclamation’s contracts and agreements that allocate too much water for irrigation and water sales as a permanent structural condition. The State Water Board needs to assert its authority now to protect public trust fishery resources.
Editor’s note: on August 17, 2021, the State Water Board notified CSPA and other commenters on the proposed transfer that the Districts had withdrawn their transfer request.
Court Ruling Finds FERC 401 Waiver Not Justified – Important Implications for California Hydropower Project Licenses
On July 2, 2021, the Fourth Circuit U.S. Court of Appeals issued an important decision regarding Section 401 of the Clean Water Act, overturning an Order by the Federal Energy Regulatory Commission (FERC). FERC’s Order had found that the state of North Carolina had unlawfully “coordinated” with the license applicant to delay the state’s certification that a new FERC license for the Bynum hydroelectric project complied with state water quality laws. FERC found that North Carolina’s participation in the delay meant that the state had “waived” its authority under Section 401 to issue the certification.
The Court reversed FERC’s finding of waiver because the finding was not supported by “substantial evidence.” The Court wrote:
If (as we are assuming) mere coordination between an applicant and the state agency can lead to a finding of waiver under § 401, then it must take more than routine informational emails to show coordination. Were the rule otherwise, applicants could manipulate state agencies into inadvertently waiving their certification authority just by asking questions. The States’ rights and responsibilities to ensure compliance with their own water-quality standards are too important to be so easily stripped away.
This noteworthy decision may help CSPA defend water quality on several California rivers. CSPA, along with other environmental groups, has been vigorously contesting a series of FERC’s unwarranted waivers of Section 401 water quality certifications for hydropower projects. In California, the State Water Board is the agency that issues 401 certifications for new hydropower licenses.
CSPA has filed petitions for review with Ninth Circuit US Court of Appeals, seeking to overturn waivers on the following hydro projects:
- Nevada Irrigation District’s (NID) Yuba-Bear Hydroelectric Project
- Yuba County Water Agency’s (YCWA) Yuba River Development Project
- Merced Irrigation District’s (Merced ID) Merced River and Merced Falls Projects
The Ninth Circuit has consolidated these cases, including petitions for review filed by State Water Board on the same waivers, into a single case. In all three cases, the licensee withdrew and resubmitted applications for water quality certification.
CSPA is hopeful that the recent North Carolina decision will have a positive effect on these California cases, and thus help CSPA and others to restore the proper functioning of Section 401 of the Clean Water Act in California, which is vital to preserving water quality for both people and fish.
The case is North Carolina DEQ v F.E.R.C., — F.4th —, 2021 WL 2763265 (4th Cir. July 2, 2021).
CSPA Protests State Water Board’s Protection of Irrigated Agriculture at the Expense of Fisheries and the Environment
The California Sportfishing Protection Alliance (CSPA) and allies have vigorously protested two recent actions by the State Water Resources Control Board that virtually ensure a repeat of the last drought, when the Board’s disastrous decisions decimated multiple year classes of salmon and drove pelagic species in the Delta to the brink of extinction. Fisheries have still not recovered from the effects of 2012-2015 drought. This year, the SWRCB’s actions may push them over the edge.
Multi-year droughts are common in California, occurring more than 40% of the time. Unfortunately, the U.S. Bureau of Reclamation (USBR) and Department of Water Resources (DWR) routinely deliver normal water supplies in the first dry year, assuming the following year will be wet. When a dry year is followed by another dry or critically dry year, depleted reservoirs cannot be replenished. The State Water Board’s traditional response has been to protect irrigated agriculture by drastically reducing flows critical to fisheries survival and weakening water quality standards that were already developed to account for dry and critically dry conditions.
The State Water Board’s pattern and practice, extending over decades, is a major reason that winter and spring runs of Chinook salmon, steelhead, green sturgeon, Delta smelt and longfin smelt are listed as threatened or endangered under state and federal endangered species acts. Conversely, irrigated agriculture, which comprises about 2% of California’s economy but consumes 80% of the state’s developed water supplies, has fared rather well during droughts. Since 2000, Sacramento and San Joaquin Valley farm production has increased 71.4% and 152.5%, respectively. And the Department of Agriculture is forecasting that almond production and acreage will reach record highs this year.
The CSPA protests involve the Sacramento River Temperature Management Plan and Temporary Urgency Change Petition Order. Together, they pose significant risk to native salmonid and pelagic species.
Sacramento River Temperature Management Plan
Construction of Shasta Dam deprived Chinook salmon of the cold spring-fed spawning habitat of the McCloud, Pit and upper Sacramento Rivers: spawning now occurs below the dam. In 1990, the State Water Board established temperature standards between Shasta Dam and Red Bluff that provided for 59 miles of spawning habitat. The temperature compliance point could be moved upstream subject to uncontrollable factors. Water deliveries are not an uncontrollable factor.
This year, the compliance point only provides five miles of spawning habitat. Proposed temperature requirements are far above levels identified as lethal for spawning and rearing Chinook salmon. In 2014 and 2015, egg to fry survival was only 4% and 3%, respectively. This year is likely to be similar.
CSPA sent the State Water Board a letter on 14 March 2021 requesting immediate enforcement of Water Rights Order 90-05 and Bay-Delta water quality standards. CSPA followed up with a 15 April letter urging the Board to reduce water deliveries in order to conserve limited cold water in Shasta Reservoir. On 21 April 2021, CSPA testified at a State Water Board workshop regarding the proposed Temperature Management Plan. On 5 May, USBR submitted a draft Temperature Management Plan that proposed lethal temperatures and inadequate end-of-year storage, while providing excessive water deliveries. CSPA, Save California Salmon and the California Water Impact Network submitted an alternative approach to the State Water Board on 23 May 2021. The CSPA et al. Temperature Management Plan, comprised of a transmittal letter, descriptive elements and spreadsheet, would provide protective water temperatures for salmon in the Sacramento and Trinity Rivers. It would also provide increased carryover storage in Shasta and Trinity Reservoirs in case of another dry year. CSPA and its allies issued a press release and fact sheet on 1 June.
USBR submitted a slightly modified but still wholly inadequate final Temperature Management Plan on 28 May 2021. The State Water Board has ten days to approve or disapprove the Plan. If the State Water Board approves the Plan, CSPA will request reconsideration and, if necessary, litigate the issue. It should be noted that CSPA believes the State Water Board hasn’t complied with a settlement agreement in a pattern and practice lawsuit from the last drought; CSPA may need to seek court enforcement of the settlement.
Weakening of Delta Flow and Water Quality Standards
Present populations of Delta fishes are a remnant of their historical abundances prior to construction of the state and federal water projects. Several are on the edge of extinction. The current inadequate Delta water quality and flow standards were adopted 26 years ago and they remain in effect despite requirements to revise them every three years. The rules still in force include specific standards for different water years, including dry and critically dry years. However, the Governor’s 10 May 2021 Drought Proclamation waived mandatory compliance with these already-too-weak standards.
On 17 May 2021, DWR and USBR submitted a Temporary Urgency Change Petition to weaken the existing critical year standards. The State Water Board noticed the petition and provide an abbreviated public comment period to conclude 4 June. Before expiration of the comment period, the State Water Board issue an order approving the temporary urgency change. The order significantly reduces Delta outflow, moves the salinity compliance point further east into the interior Delta, and facilitates export of transferred water. CSPA, California Water Impact Network and AquAlliance filed a Protest, Objection and Petition for Reconsideration to the Change Petition and order on 4 June 2021.
The CSPA et al. Protest alleges that the State Water Board order is contrary to law, against the public interest and will have adverse environmental impacts. It describes myriad consequences of the order, including: seriously degrading water quality for fish, farms and cities; reducing the food supply and viable habitat for endangered and threatened fish; impeding migration of native species; facilitating the spread of toxic algal blooms that threaten fish, plankton and humans; and expanding the range of non-native submerged aquatic vegetation and invasive predators at the expense of native species among other things. The over-arching effect will be to transform one of the great natural freshwater estuaries in the world into a salty warmwater lake.
CSPA and Allies Oppose Proposed SFPUC General Manager and City of San Francisco’s Lawsuit Against State Water Board
CSPA has joined a letter opposing the prospective appointment of San Francisco City Attorney Dennis Herrera as the new General Manager of the San Francisco Public Utilities Commission (SFPUC). The SFPUC is the water supply agency for the City of San Francisco. In total, eleven environmental and fishing groups joined the May 24, 2021 letter to San Francisco Mayor London Breed and SFPUC Commission President Sophie Maxwell.
The opposition to Mr. Herrera’s appointment stems largely from a lawsuit against the State Water Resources Control Board that Mr. Herrera filed on May 14, 2021 on behalf of the SFPUC and the City of San Francisco. The opposition also stems from statements that Mr. Herrera made to the press regarding the lawsuit, and in particular his statement that going to court “is our only option to protect San Francisco’s water supply.”
The City’s lawsuit contests the State Water Board’s Water Quality Certification for the relicensing of Turlock and Modesto irrigation districts’ Don Pedro and La Grange hydroelectric projects.
The opposition letter objects not simply to the act of filing suit, but to the lawsuit’s scorched earth legal arguments about the State Water Board’s Water Quality Certification. The City’s lawsuit argues that implementing the flow requirements in the Certification would violate the California Constitution’s prohibition of “waste or unreasonable use” of water. The City’s lawsuit also invokes the Trump Administration’s 2020 Rule on Section 401 of the Clean Water, which rolled back almost all of the kinds of conditions states can place on new federal licenses.
The opposition letter concludes by saying: “We urge you to reject Mr. Herrera and conduct a national search for a more qualified candidate to lead the SFPUC.”
 For further discussion, see: http://calsport.org/news/hydropower-reform-coalition-opposes-another-trump-administration-attack-on-the-clean-water-act/. See also: http://calsport.org/news/wp-content/uploads/2019-10-21.HRC_.401_Comments.pdf.
On May 7, 2021, CSPA joined a broad coalition of organizations in a letter urging the Biden Administration not to endorse so-called “voluntary agreements” that propose inadequate environmental requirements for the San Francisco Bay-Delta and its tributaries. The letter was addressed to Secretary Haaland of the Department of the Interior and Secretary Raimondo of the Department of Commerce.
The groups expressed serious concerns that some agencies of the State of California are negotiating behind closed doors with numerous water districts, without participation from conservation and environmental justice organizations, fishing industry groups, or Native American tribes.
These closed-door negotiations continue to be based on the inadequate proposed Framework for voluntary agreements announced by the State in February 2020. That Framework’s inadequate flow and other requirements will fail to protect and restore the Bay-Delta watershed and the communities and jobs that depend on it. The Framework has not been substantively improved during the 14 months since it was released.
The Bay-Delta water quality standards in effect today are 25 years old. Improved water quality protections are urgently needed, are long overdue, and are required by both state and federal law. California’s salmon runs in the Central Valley, which sustain thousands of fishing jobs across the West Coast and are of importance to tribal peoples of this area, continue to decline. Longfin smelt and other native species in the Delta are now trending towards extinction. Harmful algal blooms are proliferating in the estuary, threatening public health for heavily disadvantaged communities like Stockton.
CSPA and allied organizations call on the Biden Administration to withdraw the Trump Administration’s 2019 biological opinions and to engage in a science-based, transparent, public process at the State Water Resources Control Board to adopt and implement improved water quality standards for the Bay-Delta watershed.
CSPA, the California Water Impact Network and California Water Research submitted a comment letter on March 31, 2021 to the California State Water Resources Control Board, Division of Water Rights on the Water Board’s Recommendations for an Effective Water Rights Response to Climate Change: Identification of Data Needs and Recommendations to Incorporate Climate Change into Water Rights Permitting Policies, Procedures, and Methodologies (Recommendations). The Water Board released this report in February, 2021 and invited stakeholders to provide feedback and to propose other options not listed in the report. Click here for a link to the report.
The report outlines staff recommendations to make water availability analyses for permitting new water rights more robust. It also suggests actions to support an effective water rights response to climate change. The report describes the rapid rate of climate change in California and the inadequacy of reliance on past hydrology to predict future conditions. The report outlines new data needs, opportunities, and potential approaches for an effective water rights response.
Some of the report’s recommendations include actions such as:
• Develop adaptive permit terms in new permits
• Develop a fact sheet for water right applicants to incorporate climate change
• Expand existing network of stream and precipitation gages
• Reevaluate the existing instream flow metrics and criteria
• Revise the Fully Appropriated Stream list
• Prepare for and capitalize on capturing flood flows and storing them underground
• Plan for droughts
The CSPA et al. comment letter supports the report’s discussion of the impacts of climate change on stream flows and the need for better estimations of unimpaired flows. However, the letter expresses concerns about the several elements and omissions, including:
1) The Division of Water Rights needs to consider the role of diversions in stressing freshwater ecosystems in the state to avoid crisis management. During the 2012-2016 drought, the Water Board temporarily suspended at least 35 minimum instream flow standards. By August 2015, the Department of Fish and Wildlife reported that there had been 783 fish rescues in 52 different watersheds, comprising 51 species and more than 264,000 fish. Unless the Water Board does a better job of keeping water in our rivers and streams, California’s native aquatic and stream-dependent species will not survive climate change.
2. The Division of Water Rights needs to consider the decades of delays and inaction on determining instream flow needs. The comment letter references a 1976-1977 Governor’s Commission to Review California Water Rights Law 1978 Final Report. That report recommended increased protection for instream flows and better management of groundwater. For aquatic ecosystems to survive, the Water Board must implement long overdue protections for instream flows.
3. The Division of Water Rights needs to establish rules to protect variability of flows that are greater than required minimum flows. The Water Board must not consider all water over and above existing diversion allocations and required minimum instream flows to be available for appropriation. The Water Board should establish both defaults and site-specific rules that define water available for groundwater storage, particularly in new water rights.
4. The constitutional principle of reasonable use and the public trust doctrine must be the foundation of all water rights permitting decisions by the Water Board. In 1983, the California Supreme Court found that “[t]he state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible.” (National Audubon Society v. Superior Court (1983) 33 Cal.3d 319, 446)
The complete comment letter can be found here: CSPA-et-al-re-WR-response-to-Climate-Change.pdf and the attachment here: CSPA comments Managed Replenishment White Paper 120517.
Following up on the State Water Board’s April 21, 2021 workshop on Sacramento River water temperature management, CSPA has written a letter urging the Board to enforce existing flow requirements for the lower San Joaquin River. Water Rights Decision 1641 requires the Bureau of Reclamation to release water from New Melones Reservoir to meet seasonal San Joaquin River pulse flows. Implementing the required releases from New Melones would also take pressure off other major reservoirs, which are struggling to maintain cold water for fish downstream.
During the April 21 workshop, a spokesperson for the Bureau of Reclamation identified storage levels at New Melones as the “shining star” of the Central Valley Project. Meanwhile, Trinity, Shasta, Oroville and Folsom reservoirs are as low as they were in the 2014 and 2015 drought years. Nonetheless, the Reclamation and the California Department of Water Resources are drawing water from those reservoirs north of the Delta to meet Delta flow and salinity requirements.
The outrage is that Decision 1641 already requires Reclamation to release enough water from New Melones to make the flow on the lower San Joaquin River greater than 3000 cubic feet per second, from April 15 through May 15. But as it did in the last drought, Reclamation is shining on both the requirement and the State Water Board, which established and is supposed to enforce the requirement. On April 26, 2021, flows at the San Joaquin River compliance point are less than half the required flow.
This optional compliance needs to end. On top of that, Reclamation should increase the New Melones release simply on the grounds that it would better water management than further drawing down the north-of-Delta reservoirs, where downstream fisheries are moving towards lethal temperature conditions later this summer.
Meet the requirements and save fish!
CSPA Comments on FERC’s Additional Information Request for Merced Irrigation District’s Hydro Projects
CSPA and several allied conservation groups filed comments on April 1, 2021 responding to the Federal Energy Regulatory Commission (FERC) staff’s February 19, 2021 Additional Information Request (AIR) for the Merced River Hydroelectric Project and the Merced Falls Hydroelectric Project (collectively, Projects). These two hydroelectric projects are owned by the Merced Irrigation District (Merced ID) and have been undergoing relicensing since February 2012.
On June 18, 2020, FERC issued an Order finding that the State Water Board had waived certification for the Projects. A primary purpose of the AIR is to allow FERC to evaluate the inclusion of elements of the combined Water Quality Certification (the Certification) for the Projects.
The AIR also addresses information needed to inform the National Marine Fisheries Service’s (NMFS) consultation under the Endangered Species Act (ESA). NMFS has informed FERC that the ESA consultation must consider past effects of project operations as well as comparing present project effects with effects under proposed future operation. FERC did not perform this analysis in its Final Environmental Impact Statement in 2015. FERC plans to issue a Supplemental Environmental Impact Statement to perform this new evaluation.
The Conservation Groups’ comments recommend that FERC Staff clarify and expand its directives on the following issues:
1) Provide explicit direction and rules to Merced ID for modeling elements of specified Certification Conditions, including carryover storage, irrigation deliveries, temperature targets and performance metrics, and for modeling specific scenarios for State Water Board’s Certification Condition 4 (Extremely Dry Conditions).
2) Revise directives to MID related to the pre-project baseline, cumulative effects, and geographic scope.
3) Review and analyze those elements of the Certification whose implementation would positively affect tribal interests, in order to more fully inform Staff’s analysis.
The Conservation Groups submitted these comments because of concerns that the AIR lacks sufficient specificity and direction to Merced ID regarding how to model elements of the Certification that the Certification itself left to be defined or quantified at a future date. The AIR also lacks internal consistency: it asks Merced ID to provide analysis of the past effects of project operation, but not the past effects of project construction.
Another major concern is that the AIR appears to be partially premised on the position that FERC has discretion to decline compliance with those elements of the Certification that are also elements of the adopted Bay-Delta Plan. This premise that waiver of certification would absolve Merced ID of compliance with the Bay-Delta Plan is unfounded. FERC needs to clarify this distinction and to direct Merced ID on how to model the adopted Bay-Delta Plan in light of the fact that the Bay-Delta Plan will require Merced ID’s compliance.
FERC’s do-over of its Environmental Impact Statement needs to pick up all the loose ends. That requires clarity. It is not helpful to ask a regulated entity to fill in the blanks before providing information that is supposed to help FERC staff correct oversights and poor decisions that staff made previously in relicensing.
 Other groups include the Merced Conservation Committee, the Golden West Women Flyfishers, Friends of the River, American Rivers, American Whitewater, Trout Unlimited, the Northern California Council Federation of Flyfishers International and the Sierra Club Tehipite Chapter.
 The California State Water Resources Control Board and a group of environmental organizations, including California Sportfishing Protection Alliance, Friends of the River, and Sierra Club and its Tehipite Chapter, each have filed a petition for review with the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) of FERC orders finding that the Water Board waived its authority under section 401 of the Clean Water Act (CWA) to issue a water quality certification (WQC) in the ongoing relicensing of Merced Irrigation District’s (Merced) Merced River and Merced Falls Projects. CSPA et al.’s Petition was filed in October 2020.
The California Sportfishing Protection Alliance, along with 19 other conservation, fisheries and community organizations, submitted comments on March 5, 2021 to the California State Water Resources Control Board on a proposed National Pollutant Discharge Elimination System (NPDES) General Permit for Suction Dredges Mining Discharges.
Suction dredge mining was prohibited in California in 2009. In 2015, the California Fish and Game Code and Water Code were amended, requiring miners to obtain both (1) a permit from the State Board or a letter from the State Board stating no such permit is required, and (2) a permit from the California Department of Fish and Wildlife to suction dredge mine in California. The State Board requested comments on the proposed new NPDES permit.
The CSPA & coalition comment letter urges the State Board to maintain its previous recommendation that suction dredge mining “be permanently prohibited,” because the significant environmental effects of this destructive activity cannot be fully mitigated. The letter states that if the it does decide to selectively allow suction dredge mining, the State Board must:
- Maintain strong prohibitions on suction dredge mining in areas where there has been historic gold mining or that have high levels of heavy metals, such as mercury.
- Prohibit mining in waters that are impaired for sediment; areas with rare, sensitive, threatened or endangered species; and areas with cultural, recreational, and aesthetic resources.
- Create and distribute descriptions and maps that accurately describe all areas where suction dredge mining is prohibited—such as national parks, wilderness areas, and military areas—to avoid confusion and conflicts.
- Require real-time monitoring to ensure that water-quality violations do not occur.
- Issue only individual permits and not a general permit, because site- and operation-specific impacts can only be analyzed on a permit-by-permit basis.
CSPA joined with 26 other fishing and environmental groups and businesses in a March 9, 2021 joint letter that urges hiring a progressive, experienced outside general manager for the San Francisco Public Utilities Commission (SFPUC or Commission). The SFPUC is the City of San Francisco’s water agency. The letter to San Francisco Mayor London Breed and SFPUC President Sophie Maxwell points out that with the hiring of a new General Manager, the SFPUC has opportunities for:
- Utilizing a science-based approach to setting new flow standards to protect the Tuolumne River, the Bay-Delta ecosystem and California’s salmon fishing jobs.
- Embracing more realistic water demand projections and potential drought scenarios to better plan for the future.
- Investing in water supply alternatives that can reduce vulnerability to climate change and reduce reliance on the overtaxed Tuolumne River.
- Building collaborative relationships with community interest groups, including the environmental and fishing communities.
In a separate letter to SFPUC President Maxwell also sent on March 9, 2021, CSPA expressed disappointment that a recent petition to the State Water Board by the City of San Francisco on behalf of the SFPUC relies on the Trump Administration’s rollback of Section 401 of the Clean Water Act. (For analysis of the rollback, see Hydropower Reform Coalition Opposes Another Trump Administration Attack on the Clean Water Act). CSPA’s March 9 letter states: “The goal of the Petition is to prevent the State of California from requiring improved flows in the lower Tuolumne River.” CSPA requests that the Commission “disavow policies and legal positions that rely on ex-President Trump’s environmental rollbacks,” appoint new staff leadership, and work with stakeholders on alternative strategies for dry year sequences.
In a related letter sent to President Maxwell on February 22, 2021, CSPA responded to a presentation by SFPUC staff at a February 5, 2021 SFPUC workshop. CSPA’s February 22 letter disputes claims by SFPUC staff that science supports substituting the proposed Tuolumne River Voluntary Agreement (TRVA) for the State Water Board’s update of Bay-Delta Plan. The letter concludes: “The purported benefits of the TRVA are founded on speculation, assumption and aspiration. The primary benefit is the assumption that use of less water is a better outcome. The SFPUC would be better served by acknowledging the scientific basis for the Bay-Delta Plan.”
By Cindy Charles
The California Sportfishing Protection Alliance (CSPA) and the Pacific Coast Federation of Fishermen’s Associations (PCFFA) sent a joint letter on February 16, 2021 to the Biden Administration and Secretary of Interior designate Debra Haaland, urging them to withdraw or rescind four major policy changes to the Central Valley Project (CVP). These changes were last-minute actions of the Trump Administration made by former Interior Secretary Bernhardt, who was previously employed by one of the biggest beneficiaries of these actions: Westlands Water District. If implemented, the actions would lead to extremely adverse environmental, cultural, and economic impacts within California.
President Biden’s issued an Executive Order on January 20, 2021, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, that directed the development within 30 days of a preliminary list of recissions and withdrawals of Trump-era actions. The CSPA & PCFFA letter urges that the following items be added to this list:
- Withdraw former Secretary Bernhardt’s January 19, 2021 memorandum that slashes statutorily required funding for Central Valley Project mitigation and restoration.
- Rescind unlawfully executed permanent water contracts for Westlands Water District and other CVP contractors, in order to ensure compliance with Reclamation laws, the Central Valley Project Improvement Act, Endangered Species Act and the National Environmental Policy Acts.
- Withdraw the Business Practices and Guidelines pending before Office of Management and Budget (OMB) that would shift hundreds of millions of dollars owed by the CVP contractors to American taxpayers.
- Withdraw and peer review the Trump Administration cost allocation methodology for the CVP that would shift hundreds of millions of dollars in costs owed by water and power beneficiaries to American taxpayers.
CSPA and PCFFA also circulated this letter to key members of the House and Senate. The letter continues CSPA’s work to ensure the enforcement of statutory obligations, recission of unlawful permanent water contracts, and meaningful oversight of federal agencies’ performance under the Central Valley Project Improvement Act.
By Cindy Charles
The California Sportfishing Protection Alliance (CSPA) and American Whitewater (AW) submitted comments to the Federal Energy Regulatory Commission (FERC) on January 5, 2021 in support of two “must-have” license conditions for the Upper North Fork Feather Hydroelectric Project (Project 2105). If these conditions are left out of the project’s new license, summer water temperatures in most of the North Fork Feather River will remain too warm for trout for the next forty to fifty years, while trout in Lake Almanor will have too little oxygen.
The project is owned by Pacific Gas and Electric Company (PG&E). Current project operation violates water temperature requirements set forth in the Central Valley Basin Plan. In addition, the State Water Board has listed the North Fork Feather River as impaired for water temperature under Section 303(d) of the Clean Water Act. For 15 years, PG&E has opposed new license conditions for Project 2105 that would mitigate the temperature impairment.
FERC relicensing for Project 2105 was completed fifteen years ago, including a partial settlement agreement that left water temperature issues unresolved. For its part, FERC left water temperature improvements up to the State Water Board and its Section 401 Water Quality Certification for the relicensing. However, on April 24, 2020, PG&E petitioned FERC to “waive” certification for procedural reasons. The State Water Board issued its Draft Certification and a Revised Draft Environmental Impact Report on May 15, 2020, but FERC waived 401 Certification on July 16, 2020.
CSPA and AW’s comments highlight the legal and factual reasons why FERC must act to improve water temperatures in the North Fork and coldwater fish habitat in Lake Almanor. The comments also remind FERC of its responsibilities under the Federal Power Act (FPA) to issue a license consistent with comprehensive plans in the record (primarily the Central Valley Basin Plan), regardless of FERC’s waiver decision.
CSPA & AW write that the new license for the Project 2105 must include:
1) Supplemental summer releases from Lake Almanor’s Canyon Dam to improve water temperatures and protect cold freshwater beneficial uses in the North Fork Feather River from Belden Forebay downstream through the Rock Creek and Cresta reaches. The purpose of these flows is to prevent the mean daily water temperature of the North Fork Feather River from exceeding 20°C, to the extent possible.
2) An oxygenation facility near Canyon Dam to mitigate for project effects on dissolved oxygen and coldwater fish habitat in Lake Almanor, Project 2105’s storage reservoir. The facility would release oxygen from the bottom of Lake Almanor so that much more of the existing cold water in the lake could support trout. Under current conditions in summer, most of the cold water in Lake Almanor doesn’t have enough oxygen for fish. The letter recommends paying for the facility using an existing fund set aside for coldwater habitat in the watershed.
CSPA and AW’s comments continue twenty years of advocacy that PG&E’s operation of Project 2105 can and must support great trout fisheries in both Lake Almanor and the North Fork Feather River.
The Federal Energy Regulatory Commission has denied a petition to waive water quality certification for the Don Pedro and La Grange Hydroelectric Projects on the Tuolumne River. The January 19, 2021 denial is a rebuke to Turlock Irrigation District and Modesto Irrigation District (Districts), who jointly own and operate the projects. The Districts had sought to piggyback on a series of waivers that FERC has granted in the last two years. No soap.
The controversy starts with the Clean Water Act’s one-year deadline for a state to grant or deny a certification. Certification says a new federal permit or license will comply with state laws on water quality. FERC justified other waivers of certification on the grounds of withdrawal and resubmittal by an applicant of its request for certification. FERC held that this meant that the state did not “act” within one year. CSPA and other conservation groups are currently litigating three such FERC waivers of certification for California hydropower projects.
The Districts’ argument was a bridge too far, even for FERC. The Districts argued that denial of certification “without prejudice” (allowing another application) was a “scheme” that was legally equivalent to withdrawal and resubmittal by the applicant. The Order denying waiver succinctly states: “Based on the plain language of the statute, we find that on both occasions the California Board, in denying certification, ‘acted’ on the Districts’ request within one year.”
Theoretically, the Districts could appeal FERC’s ruling by “requesting rehearing.” However, FERC’s unanimous vote against waiver does not augur well for such an appeal, or for potential subsequent legal challenge in federal court. More likely, the theater of combat will shift to an appeal to the State Water Board and subsequent challenge in state court.
CSPA and allied groups also submitted comments on the Draft Water Quality Certification for the Projects to the State Water Board. Notably, the State Water Board’s Final Certification adopted the Conservation Groups’ recommendation to require increased summer flows in the downstream reach of the lower Tuolumne River in order to benefit the residents of Modesto and nearby communities. The Certification’s rationale for the increase states in part: “[T]he record does not support the conclusion that 12 boatable days provides reasonable access to the urban and rural communities seeking boating recreation opportunities.” It also notes: “Flows of 200 cfs and lower in the lower Tuolumne River are also associated with warm water temperature, water hyacinth growth, poor water quality, stagnant conditions that support warm water predatory fish, poor aesthetic quality, and inequitably affect access to natural resources for urban and rural communities.”
The Districts are certain to contest the Final Certification, which as written requires the flows adopted in the update of the Bay-Delta Plan. Unless the State Water Board modifies the Bay-Delta Plan, this means the Districts will be required to allow 40% of the unimpaired February-June inflow to Don Pedro Reservoir to pass downstream.
The Final Certification is not perfect, but the State Water Board’s document significantly improves on the conditions that FERC is prepared to require of its own accord. The fact that the Certification has withstood the initial challenge at FERC is a victory whose outcome was by no means certain.
 See previous posts: https://calsport.org/news/cspa-sues-ferc-over-waiver-of-clean-water-act/; https://calsport.org/news/wp-content/uploads/CSPA-Newsletter_-Turbulent-Waters-fall-2020.pdf; https://calsport.org/news/innews/ferc-declaratory-order-finding-waiver-of-california-section-401-authority-challenged-in-ninth-circuit-3/
 For the first set of Conservation Groups’ comments, see https://calsport.org/news/cspa-opposes-turlock-and-modesto-irrigation-districts-petition-for-waiver-of-clean-water-act/
The State of California’s Executive Branch Needs to Close the Books on Negotiations of “Voluntary Agreements” with Water Agencies and Irrigation Districts that Attack the Authority of the State Water Board and Foundational Environmental Law
Both Yuba Water Agency (YWA) and the Turlock and Modesto Irrigation Districts (Districts) allege that the State Water Resources Control Board (State Water Board) has unlawfully delayed decisions concerning their respective hydroelectric projects. Both YWA and the Districts have mounted aggressive legal attacks on the State Water Board and on the laws that give the Board its legal authority, in order to avoid regulation by the Board.
At the same time, YWA and the Districts want the State Water Board to grant them discretionary delay to complete “Voluntary Agreements” about flow requirements in the Yuba and Tuolumne rivers. This delay prevents the Board from setting mandatory flow requirements in the legally required and long overdue update of the Bay-Delta Plan.
Negotiations of Voluntary Agreements have been ongoing for about 4 years for the Yuba and 8 years for the Tuolumne. Ignoring the legal attacks of YWA and the Districts (among others), the Newsom administration continues to tie the hands of the State Water Board and leave the door open for Voluntary Agreements. It’s long past time to slam the door shut. Continue reading
Joining a growing list, Turlock and Modesto Irrigation Districts (Districts) filed a Petition for Declaratory Order with the Federal Energy Regulatory Commission (FERC or Commission) on October 2, 2020 asking that the Commission find that the State of California has waived certification under Section 401 of the Clean Water Act (CWA). CWA Section 401 allows a state to issue a “water quality certification” that places mandatory conditions on a new federal permit or license. The Districts are seeking a new FERC license for two hydropower projects on the Tuolumne River, the Don Pedro Project and the La Grange Project.
Previous requests for waiver have relied on FERC’s expansive interpretation of the court ruling in Hoopa Valley Tribe v. FERC (Hoopa Valley). In response to previous petitions, FERC granted waiver in finding that withdrawing and resubmitting an application for a certification was in many cases an unlawful circumvention of the state’s one-year deadline to issue a certification. CSPA and others have challenged three of FERC’s previous decisions in court.
The Districts’ petition relies on a different argument: that even though the California State Water Resourced Control Board denied the Districts’ applications for certification on two separate occasions, this denial “is in fact the functional equivalent of the arrangement rejected in Hoopa.”
In response to the Districts’ petition, CSPA and seven other “Conservation Groups” filed a Motion to Intervene in any FERC proceeding that would result in a decision on the Districts’ petition. This Motion also contains several arguments in opposition to the Districts’ position. The Conservation Groups chose to file a motion because FERC did not clarify the procedural requirements to respond to the Petition. Five days after Conservation Groups filed their motion, FERC clarified the procedural requirements, allowing an additional 30 days to comment.
Hoopa Valley Tribe v. FERC, 913 F.3d 1099, 1104 (D.C. Cir. Apr. 26, 2019), reh’g denied, No. 14-1271, 2019 WL 3928669 (D.C. Cir. Apr. 26, 2019), and cert. denied sub nom. California Trout v. Hoopa Valley Tribe, 140 S. Ct. 650, 205 L. Ed. 2d 410 (2019).
 See previous posts: https://calsport.org/news/cspa-sues-ferc-over-waiver-of-clean-water-act/; https://calsport.org/news/wp-content/uploads/CSPA-Newsletter_-Turbulent-Waters-fall-2020.pdf; https://calsport.org/news/innews/ferc-declaratory-order-finding-waiver-of-california-section-401-authority-challenged-in-ninth-circuit-3/
On September 14, 2020, the National Marine Fisheries Service (NMFS) and Stockton East Water District (Stockton East) issued a Final Habitat Conservation Plan (HCP) for the Calaveras River. The HCP will require a minimum flow of 20 cfs upstream of Stockton East’s major water supply diversion at Bellota Weir (River Mile 24). It will also require fish ladders and screens at several major diversions. However, the Plan allocates zero water to fish in the lower 24 river miles of the river. At Bellota Weir, Stockton East will recapture all of the required flow release from New Hogan Dam (River Mile 42).
Water supply operation currently blocks salmon and steelhead migration into the Calaveras River from its confluence with the San Joaquin River in Stockton to Bellota Weir. Migration opportunities in the 24 miles between those two points are currently limited to periods of flood control releases from New Hogan Dam during the non-irrigation season. Dozens of flashboard irrigation dams downstream of Bellota Weir block fish migration from March or April through October 15 every year.
CSPA was to our knowledge the only fishing or conservation organization that commented on the draft HCP and the accompanying draft Environmental Assessment. (See Calaveras River Plan Takes 14 Years to Keep All the Water, November 2019). CSPA’s top line comment stated:
It is not reasonable to devote zero stored water to a fisheries HCP, particularly in a watershed where storage is about double average annual runoff, and where additional future diversions for groundwater recharge are explicitly planned. …The arguments in the HCP against the pejoratively labelled “artificial” migration flows are unpersuasive, particularly because the analysis that purports to support these arguments limits evaluation to limited arbitrarily selected flow volumes.
In response, NMFS and Stockton East’s Final Environmental Assessment said they were right the first time: “SEWD analyzed the impacts to water storage in New Hogan from implementation of additional migration flows in Mormon Slough, a flood conveyance channel. This analysis indicated negative consequences to water storage, which wouldn’t support salmonid habitat conditions in the Calaveras River long-term.”
CSPA doesn’t think so. “Negative consequences to water storage” are a price of doing business, all the more when the storage dam captures all the water in three years out of four. The fish screens and fish ladders called for in the HCP won’t protect fish that never reach the 18 flowing miles of the Calaveras River upstream of Bellota Weir. One cannot rely on a few very wet water years to get fish into and out of a salmon and steelhead fishery.
In 2006, the State Water Resources Control Board put in abeyance CSPA’s public trust complaint regarding the operation of the Calaveras River, pending the outcome of the HCP. Since NMFS couldn’t find the courage to require any flow at all to get fish into and out of the Calaveras watershed, it may be time to ask the State Water Board to reopen CSPA’s complaint.
CSPA and thirteen other conservation and fishing organizations wrote a letter to the San Francisco Public Utilities Commission on September 9, 2020 requesting that the Commission withdraw its support for a proposed Tuolumne River Voluntary Agreement. CSPA and others also presented the request to the SFPUC meeting the same day.
The request follows a scientific peer review of the fish population models that provide much of the purported basis for the Voluntary Agreement. The review by Anchor QEA of Seattle reached the following conclusion about the salmon population model developed by the Turlock and Modesto irrigation districts:
The model, as configured, indicates that the status of the Chinook salmon population is extremely precarious and bold actions will be needed to prevent extirpation. This need, according to the model, would best be met by very substantial increases in flow releases during spring (the period of active smolt outmigration from the river). (Peer Review p. 3)
The review also rejected the repeated claim of SFPUC and the irrigation districts that reducing the number of bass and other predatory fish in the Tuolumne River would significantly increase the survival and populations of salmon:
[T]he Chinook salmon production model cannot identify the number of predators that would need to be removed or how much of a reduction in consumption would be required to achieve a significant increase in smolt-to smolt survival. The response from predator control is assumed, not predicted. (Peer Review p. 5, emphasis added)
The September 9 letter from conservation and fishing groups asks the SFPUC:
We urge the Commission to direct SFPUC staff to withdraw the flawed proposal for a Voluntary Agreement on the Tuolumne River and to cease making any claims of fishery benefits from the proposal, which are based on these flawed models. Instead of focusing on ways to reduce the amount of water flowing in the Tuolumne River, we encourage you to work with us to find ways to support investments in local and regional water supply projects that would create good paying local jobs, improve the resiliency of the water systems, and help sustain the economy with reduced diversions from the Tuolumne River. Across California, many water agencies are far ahead of the SFPUC in making these investments.
The SFPUC commissioners agreed to agendize the peer review at a future meeting.
The letter to SFPUC was updated on September 14 to reflect the addition of the Nature Conservancy as the fifteenth signatory. Otherwise, the letter was unchanged from September 9. The updated letter is available here:
CSPA and three other non-profit groups have sued the Federal Energy Regulatory Commission (FERC) in the Federal Appeals Court 9th Circuit in defense of the State of California’s authority to protect the Yuba and Bear Rivers. The lawsuit is the latest chapter in CSPA’s concerted opposition to FERC’s serial “waivers” of the application of Clean Water Act Section 401 to the issuance of FERC licenses for California hydropower projects. (For description and discussion, see previous posts here and here). Hydropower licenses have a term of 30 to 50 years.
CSPA is joined in the legal challenge by the South Yuba River Citizens League, Friends of the River, and the Sierra Club and its Mother Lode Chapter.
On 17 July 2020, shortly before trial, CSPA and its partners, California Water Impact Network and AquAlliance, settled a contentious 2015 lawsuit against the State Water Resources Control Board (State Board). The lawsuit alleged that the State Board had embraced a “pattern and practice” that failed: to comply with the Public Trust Doctrine; implement Sacramento River temperature management requirements; ensure that fish below dams be maintained in “good condition” and maintain minimum Clean Water Act standards in the Delta. The settlement agreement will greatly increase protection for seriously degraded fisheries by requiring the State Board to follow transparent procedures and to make specific findings in updated Bay-Delta water quality/flow standards and Sacramento River temperature criteria.
Central Valley pelagic and salmonid fisheries have experienced precipitous decline. The Public Trust Doctrine establishes powerful public property rights in natural resources. The settlement requires the State Board to conduct a full transparent evaluation of the specific Public Trust factors the State Board will consider and to make specific findings that new Bay-Delta Plan requirements will protect fish and wildlife.
Excessive temperatures have decimated Sacramento River salmonid fisheries. The settlement agreement requires the State Board to conduct a transparent Sacramento River Temperature Management process that addresses all controllable factors, including deliveries, and ensures adequate staffing, modeling and public review.
Fisheries below rim dams have long suffered from inadequate flow. Fish and Game Code Section 5937, which requires dam operators to release sufficient flow to keep “fish in good condition,” has long been ignored. The settlement agreement requires the State Board to specifically evaluate whether Bay-Delta updates are consistent with Section 5937.
Fish and Wildlife have disproportionately suffered during droughts as the State Board has temporarily relaxed water quality standards. The settlement agreement requires the State Board to conduct a transparent Public Trust analysis for Temporary Urgency Change Petitions.
Jason Flanders and the Aqua Terra Aeris Law Group represented CSPA et al. in this matter.