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

Posted on January 17, 2022 by Cindy Charles

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

Posted on January 15, 2022 by Chris Shutes

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

Posted on November 13, 2021 by Cindy Charles

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

Posted on October 29, 2021 by Denise Zitnik

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

Posted on October 28, 2021 by Cindy Charles

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.

Posted in Cindy Charles | Comments Off on Success in Stopping A Very Bad Westlands Water Deal

Reckless Water Transfer Would Further Jeopardize Fisheries in 2021 & 2022

Posted on August 16, 2021 by Cindy Charles

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.

New Melones Reservoir

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.

Posted in Cindy Charles, Water Rights | Comments Off on 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

Posted on July 24, 2021 by Cindy Charles

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).

Posted in Cindy Charles, Hydroelectric (FERC), Water Quality | Comments Off on 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

Posted on June 6, 2021 by Bill Jennings

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.

Posted in Bill Jennings, Enforcement, Fisheries, Miscellaneous, State Board Bay-Delta Standards, Water Quality, Water Rights | Comments Off on 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

Posted on May 26, 2021 by Chris Shutes

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.[1]

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.”

[1] 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.

 

 

Posted in Chris Shutes, Hydroelectric (FERC) | Comments Off on 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

Posted on May 10, 2021 by Cindy Charles

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.

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CSPA Comments on State Water Board’s Response to Climate Change

Posted on April 29, 2021 by Cindy Charles

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.

Posted in Water Quality | Comments Off on CSPA Comments on State Water Board’s Response to Climate Change

CSPA Urges State Water Board to Tap New Melones Now

Posted on April 26, 2021 by Chris Shutes

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!

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CSPA Comments on FERC’s Additional Information Request for Merced Irrigation District’s Hydro Projects

Posted on April 15, 2021 by Cindy Charles

Crocker Huffman Dam – Merced Fall Hydro Project

CSPA and several allied conservation groups[1] 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.[2] 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.

 

[1] 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.

[2] 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.

 

 

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CSPA Says No Again to Suction Dredging Mining

Posted on March 21, 2021 by Cindy Charles

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.

 

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CSPA Urges Changes at San Francisco Public Utilities Commission

Posted on March 12, 2021 by Chris Shutes

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.”

Posted in Chris Shutes, Hydroelectric (FERC), State Board Bay-Delta Standards | Comments Off on CSPA Urges Changes at San Francisco Public Utilities Commission

CSPA & PCFFA Urge Reversal of Harmful & Unlawful Trump Actions on the Central Valley Project

Posted on February 28, 2021 by Cindy Charles

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:

  1. Withdraw former Secretary Bernhardt’s January 19, 2021 memorandum that slashes statutorily required funding for Central Valley Project mitigation and restoration.
  2. 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.
  3. 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.
  4. 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.

 

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CSPA Defends Cold Water for North Fork Feather River & Lake Almanor

Posted on January 23, 2021 by Chris Shutes

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.

North Fork Feather River below Belden Dam

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.

North Fork Feather River wild rainbow trout

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.

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FERC Denies Waiver of Clean Water Act for Tuolumne River Hydropower Projects

Posted on January 20, 2021 by Chris Shutes

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 denial means that the State Water Board’s Final Water Quality Certification for the Projects, issued January 15, 2021, will stand unless overturned on appeal.

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.[1]

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 other Conservation Groups opposed waiver twice, most recently in December 7, 2020 supplemental comments to FERC.[2]

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.

[1] 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/

[2] 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/

Posted in Chris Shutes, Hydroelectric (FERC) | Comments Off on FERC Denies Waiver of Clean Water Act for Tuolumne River Hydropower Projects

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

Posted on November 30, 2020 by Chris Shutes

Summary

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 →

Posted in Chris Shutes, Hydroelectric (FERC) | Comments Off on 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

CSPA Opposes Turlock and Modesto Irrigation Districts’ Petition for Waiver of Clean Water Act

Posted on November 23, 2020 by Chris Shutes

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)[1].  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.[2]

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.

[1]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).

[2] 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/

 

Posted in Chris Shutes, Hydroelectric (FERC), Water Quality | Comments Off on CSPA Opposes Turlock and Modesto Irrigation Districts’ Petition for Waiver of Clean Water Act