Save the California Delta Alliance (STCDA)

Some rare good news—see below. See Press Release from the California Water Impact Network below:

FOR IMMEDIATE RELEASE
July 21, 2020

Contact:

• Bill Jennings, CSPA Executive Director: 209-464-5067
• Carolee Krieger, CWIN Executive Director: 805-451-9565
• Barbara Vlamis , AquAlliance Executive Director: 530-895-9420
• Jason Flanders, Aqua Terra Aeris Law Group, 916-202-3018

Landmark Lawsuit Settlement Between Environmentalists
and State Water Boards Strengthens Delta Protections

Enforceable transparency and analysis to replace years of failure to comply with
existing water quality and flow standards.

SACRAMENTO, California — Three California environmental nonprofits secured a landmark settlement agreement with the California State Water Resources Control Board to uphold the common law Public Trust Doctrine and other legal protections for imperiled fish species in the Sacramento River and San Francisco Bay/Sacramento–San Joaquin Delta Estuary.

The lawsuit, filed in 2015 by the California Sportfishing Protection Alliance (“CSPA”), the California Water Impact Network (“CWIN”), and AquAlliance, brought sweeping claims against the State Water Board. It alleged that the agency’s management of the Sacramento River and San Francisco Bay-Delta displayed an overarching pattern and practice of:

• failure to comply with the Public Trust Doctrine;
• failure to implement Sacramento River temperature management requirements;
• failure to ensure that fish below dams be maintained in “good condition”; and
• acceptance of water quality below minimum Clean Water Act standards.

“The Water Board’s long-standing pattern and practice of inadequately implementing foundational environmental laws has brought the Central Valley aquatic ecosystem to the brink of collapse. This settlement agreement is a major step forward, compelling the State Water Board to fulfill crucial legal requirements it had previously ignored,” said Bill Jennings, CSPA Executive Director.

Among other things, the settlement terms protecting the Sacramento and Bay-Delta include:

• transparent evaluation of the specific Public Trust Doctrine factors the Water Board will consider in determining if new Bay-Delta Plan requirements will protect fish and wildlife;
• a Sacramento River Temperature Management process that addresses controllable factors, including deliveries, and ensures adequate staffing, modeling and public review.
• consideration of California Fish and Game Code section 5937, protecting fish below dams, in Bay-Delta Plan updates; and
• transparent Public Trust analysis for Temporary Urgency Change Petitions.

The ancient common law Public Trust Doctrine establishes powerful public property rights in natural resources. In 2009, the Legislature, recognizing that Bay-Delta fisheries were collapsing and that standards had not been modified since 1995, commanded the State Water Board to update its “flow criteria for the Delta ecosystem necessary to protect public trust resources.” A decade later, in 2018, the State Water Board finally approved updated standards for the San Joaquin River and its tributaries, known as “Phase I,” which is the subject of a separate lawsuit by CSPA, CWIN, AquAlliance, and many others. Now, in a departure from past practices, the settlement agreement requires the Board’s “Phase II” updates, addressing Sacramento River Flows and Cold Water, Delta Outflows, and Interior Delta Flows, to include a “Transparent Public Trust Evaluation,” covering enumerated factors.

“The Water Board has agreed to include ‘an express evaluation’ of the factors it considers and balances in determining whether the new standards will protect the Public Trust interests in fish and wildlife,” said Jennings.

“Before now, the Water Board’s consideration of public trust resources had been perfunctory at best,” said Carolee Krieger, CWIN Executive Director. “We hope this lawsuit will result in a culture change at the Water Board, with long-lasting impact. This agreement has teeth and can be enforced,” Krieger said.

The courts have called California Fish and Game Code section 5937 “a legislative expression of the public trust protecting fish as trust resources when found below dams.” Yet the Water Board’s past pattern and practice has been to ignore this statute altogether in its Bay-Delta planning. This agreement will now ensure that 5937 is explicitly considered in the Water Board’s Phase II analysis.

The lawsuit was originally filed in 2015, after the Water Board’s approval of a series of “Temporary Urgency Change Petitions” (TUCPs) that relaxed permit restrictions for the U.S Bureau of Reclamation and California Department of Water Resources. The resulting changes during the 2014-2016 drought had catastrophic results for fish. Most of the fourteen TUCP orders failed to mention the Public Trust Doctrine at all, with only a few passing references. Under the settlement, the Water Board now agrees that its consideration of TUCPs must contain an express public trust analysis.

“A transparent process is the only way to ensure the Water Board complies with the law,” said Barbara Vlamis, AquAlliance Executive Director. “Back room deals will be a lot harder when the Water Board has to explain, in writing, how it is advancing the public’s interests in the Public Trust.”

“As a result of this lawsuit, the State Water Board can no longer completely ignore the Public Trust Doctrine in its Basin Planning and water rights orders,” said CSPA and CWIN Board Member and Mike Jackson.

Because of the lawsuit, Sacramento River temperature management will also improve.

To protect salmon spawning habitat, the Central Valley Basin Plan requires that the Bureau of Reclamation manage “controllable factors” to keep Sacramento River water temperature less than 56˚F from Keswick Dam to Hamilton City. The Basin Plan also requires Reclamation to manage controllable factors to keep water temperature no greater than 68˚F between Hamilton City and the I Street Bridge in Sacramento, whenever higher temperatures would be detrimental to migrating fish. In 1990, the Water Board adopted Water Rights Order 90-5, requiring the Bureau to submit an annual Temperature Management Plan for how to meet these temperatures. However, as late as 2019—nearly 4 years into the lawsuit—the Water Board had never required the Bureau to actually demonstrate whether it could provide colder water farther downstream using factors within its control. As a result of this lawsuit and settlement agreement, the Water Board is now asking Reclamation to analyze alternatives for the timing and quantities of water that Reclamation delivers to water users downstream, to meet temperature standards. The Board will also seek Reclamation’s analysis earlier in the year and will provide an annual opportunity for public comment and hearing.

The agreement includes an array of additional improvements. The Water Board has agreed to maintain staff with sufficient modeling and other expertise to actually evaluate the Bureau’s Sacramento River temperature impacts. The Water Board’s Phase II analysis commits to evaluate “a carryover margin of safety” of stored water from one water year to the next, to require water supply management that buffers against the potential for future dry years. Phase II will also evaluate water transfers and effects on groundwater.

“It is our expectation that, as a result of this agreement, the Water Board’s future consideration of TUCPs and Bay-Delta Plan updates will now account for and better protect public trust fisheries,” said Jennings.

CSPA, CWIN, and AquAlliance were represented by Jason Flanders at ATA Law Group, and the Law Office of Adam Keats.

Lawsuit Settlement Agreement.

Lawsuit.

This is a very good write-up of where we are on the Single Tunnel (Delta Conveyance Project) from the Contra Costa Herald. It talks primarily about the Stakeholder Engagement Committee (SEC) that has Delta folks who are opposed to the tunnel working with the DCA engineers to give feedback on the big issues and problems with their plan. The article quotes a lot from our STCDA President, Karen Mann, who is on the SEC representing small businesses, Discovery Bay, and boaters.

Contra Costa Herald “New Name, Same Game.”

(Photo: George Rose/Getty Images)

Did you know that cows and their feed are the #1 users of Delta water? Even more than the almonds we love to complain about.

Remember those ads about California cows are happy cows and showed cows in the snow in Wisconsin versus happy cows in the sunshine in California? I’ve always said those Wisconsin cows weren’t THAT unhappy and that cows should be raised where there’s enough water! Harris Ranch, for example, is huge.

HOWEVER, orchards are still a BIG problem. I don’t want to focus on which crops/animals are THE WORST for taking necessary water from the Delta. The problem with orchards, versus line crops, is that they cannot be fallowed during dry years.

THE GOAL of the Delta Reform Act included providing EXCESS water for beneficial use. The original concept of the CVP was that excess water could be used for growing crops During drought years, the fields could be fallowed. I don’t know but suppose that it would include some Federal or State aid to farmers for fallowing their fields. That allowed us to have safe, California-grown table produce like beans, carrots, corn, lettuce rather than importing from Mexico, Costa Rica, and elsewhere. Orchards (almonds, pistachios, pomegranates) can’t be fallowed during drought years. The choices are to continue to pump more than the excess water and ruin the Delta environment or overdraft the ground water table and poor communities lose their drinking water (which happened during the 2014 drought). Orchards cause those to be the only two choices. Remaining with line crops instead of orchards gives an alternate, better choice: fallowing the fields in times of drought.

Stanislaus County replaced 1 in 6 of its farm acres with almonds during the 2014 drought. Westlands expanded the almond orchards on both sides of I-5 each year during that drought and have continued to do so. And we know about Resnicks and their pistachios and pomegranates. (They don’t worry as much about water – they are part owners of the Kern Water Bank!)

I would like to see the State come up with guidelines for farmers that are based on water availability and on what is best for America versus the farmers’ current profit-based decisions.

And while cows are bad, I won’t step down from my attacks on orchards (almond and other nuts and pomegranates) in the Central Valley desert fed by Delta water. I’ll need to throw a few more jabs at the cows, as well 🙂 Send them to Wisconsin!

Here’s the article: http://www.takepart.com/article/2015/05/11/cows-not-almonds-are-biggest-water-users.

This is a poignant letter written by the Delta Legacy Communities expressing their outrage that the Department of Water Resources (DWR) and the Delta Conveyance Design and Construction Authority (DCA) continue to push forward with a Delta conveyance based on the cancelled WaterFix project. They rightfully object that the WaterFix was a project that did not use best available science, or comply with the Delta Plan, according to the Delta Stewardship Council’s draft 2018 findings. Yet DWR’s recent Section 404 permit application to the US Army Corps of Engineers is based in substantial part on the withdrawn WaterFix project specifications. This continuation of the previous project is wholly unacceptable to our communities.

They object to the agencies apparent rush to get federal permits.They rightfully point out that the WaterFix was remanded to the DWR because of the fact that it was inconsistent with the Delta Plan – protecting the Delta’s legacy communities, boating, and recreation.

They point out that at the January 22, 2020 SEC meeting, the DCA’s Intake Lead Engineer, Phil Ryan, announced to the SEC members that the DCA had reviewed potential intake locations, and decided that the WaterFix locations were the best possible locations. DCA Executive Director Kathryn Mallon then stated to the SEC that the fish agencies had approved the intake design and locations and the DCA would not be considering suggestions for alternatives. As with the twin tunnels project, Delta stakeholders had no input into this internal decision.

The intakes in the north are on top of the legacy communities. The Delta Protection Commission rightfully pointed out that:

It is not hyperbole to suggest that the CWF [California WaterFix] project presents an existential crisis for the small Delta communities that would be most affected by the protracted, intensive construction period, the permanent infrastructure, and the radical – not evolutionary – effects on the Delta economic drivers of agriculture, recreation, and emerging heritage tourism. DWR has failed to grapple with the reality, demonstrated through evidence in the record, that CWF puts the long-term sustainability of small Delta communities in serious jeopardy

And stated that it was equivalent on causing blight to those communities.

I’m glad to see they are pushing back. The Single Tunnel Project is abysmal. There is no argument to saying otherwise.

Read the entire letter here.

There is a new effort by NOAA to report sturgeon carcasses in the Delta area. The majority of these carcasses are the result of a vessel strike. Please distribute the flyer below to any interested partners.

Sturgeon Carcass Flyer

Carcass location and photos are very helpful. Scientists from the team (with a Scientific Collecting Permit) will collect samples (genetic, fin clips for ageing) from the carcasses.

In the fight to save the Delta, we just scored one big win for the Delta as a place – for boating and recreation and for some of the most critical waterfowl.

Apparently, we “killed” the Central Corridor/Through Delta Route !!!

The Single Tunnel project has been designing two alternate routes, or corridors: The Central Corridor (the same as the WaterFix Through-Delta Alignment) and the Eastern Corridor. We thought we’d killed the horrible WaterFix but here it was back renamed the Central Corridor.

And as we know with this beast, we think we’ve killed it again and again but it comes back as a beast with two heads.

Apparently, the Department of Water Resources (DWR) is applying to the US Army Corps for a permit to build the single tunnel along the Eastern Corridor. The application is not focused on the Central Corridor (closest to Mildred Island, the Bedrooms, and Discovery Bay) but instead is being reconsidered for the Eastern boundary. This is more encouraging than what we expected … so hurrah for our team … that was one big “field goal” to residents of Discovery Bay, Eastern County, and those who use Highway 4 … but we still have the rest of the game to play. The bad news is intakes #3 and #5 are the preferred route as well. And there has not been the scrutiny or analysis of the Eastern Route to know all of the issues there.
The US Army Corps Section 404 application for the Delta tunnel is available here …

The map of the project in the application is below. (NOTE: If the map looks skewed to you, that’s because they rotated it so North is to the left. Weird.)

By not chasing the Central Corridor as the construction corridor, that removes the concern that Delta Boating and Recreation would be SIGNIFICANTLY impacted by construction noise, dust, night lights, and barge activity. Not what you want when you’re trying to anchor out for a peaceful Delta outing. It also means they won’t be building on Staten Island which is home to Sandhill Cranes and migrating waterfowl. The idea of construction on that island was horrible.

The idea of a huge construction project, trucks, people, new haul roads, through the center of the estuary has always been unimaginably horrible. If that option is truly off the table, your Save the California Delta Alliance team can breath a collective sigh of relief.

There are still other issues to struggle with.

Eastern Corridor Still Has Impacts

While selecting the Eastern route means Delta Boating will continue and wetlands through the center of the Delta will not be impacted, the Eastern Route still goes on Delta islands, impacting farming on Roberts Island, Victoria, and others. Since construction will occur are Delta islands, there is still impact to migrating birds and wetlands. This route has gotten much less attention so impacts have not been clearly delineated.

Maps of the Eastern Corridor route. Eastern Corridor is detailed on pages 44-65.

Far Eastern Route is being Ignored as an Alternative

There was an alternative route recommended by the DCA Independent Technical Review Committee in 2020 and the same route was also recommended by the WaterFix Independent Scientists in 2010. Now, as then, DWR refuses to even evaluate that route.

Information on the Far Eastern I-5 route is here.

FIRST MAJOR ISSUE REMAINING: Northern Intakes are still a huge issue

The locations chosen to build the intakes are the same as WaterFix which were rejected. Yet DWR continues focused only on those sites because they have an existing water right there. They will need to pull a new water right and not build intakes in a location that would be so devastating to the legacy historical towns of Hood, Clarksburg, Cortland, and Locke.

SECOND MAJOR ISSUE REMAINING: Pumping water AROUND the Delta instead of flowing through it is a bad idea

The concept of any tunnel removing water before it can flow through the Delta is not good.

This article written by a Director of Westlands Water District showed up in CalMatters this week: California water policies inhibit food production by Valley farmers.

Over the past 30 years, federal and California policies have taken away millions of acre-feet of water used by San Joaquin Valley farmers to produce food. Photo via iStock

My reaction to this very slanted, misleading, and downright erroneous opinion piece in a recent CalMatters article written to support Westlands Water District’s ongoing push for more water from the Delta is below:

No one has “taken away millions of acre-feet (MAF) of water” from San Joaquin farmers. The fact is that for decades, twice as much water has been taken out of the Delta more than the environment can handle. This was recognized in 2009 by the legislature’s Delta Reform Act directing Delta projects to start with the Delta Flow Requirements, but the exporters rejected the science. They continue to reject the science and ignoring the law. OF COURSE, pumping six MAF per year instead of the scientifically-approved three to four MAF limit has failed to maintain the species.

It is true that the Valley grows fruits and vegetables for America. Thank you! That is wonderful and something everyone in the state wants to continue or expand. But the same area grows 80-90 percent of the world’s almonds and pistachio’s, mainly to ship to Asia for big profits, and a huge amount of feed, also shipped to Asia. The Valley could easily be the American food basket with half the water they grab today and could actually then restore the Delta and provide clean water for the communities in the North that require a clean and healthy Delta for their drinking water, instead of allowing saltwater to intrude. One might conclude that the San Joaquin farmers are driven by profits, not what food is needed on California’s tables. We’re finding an increasing number of types of produce arriving from Mexico and Costa Rica now in our Delta grocery stores, as the acreage of almonds continues to expand, as it did even during the 2011 to 2015 drought years.

Also, the San Joaquin Valley is NOT the only region on the planet that has class one fertile soils and ideal climate. The farmlands on Delta islands and surrounding lands are actually the most fertile, comprised of rich peat soil. The famous Brentwood white-corn, tomatoes, fruit, and vegetables abound. Delta farms are surrounded by the water they need. All of the Delta Islands, Contra Costa County’s farms, etc., are irrigated by pumping water out of the Delta and then the runoff returns to the Delta to support fish migrating to the ocean. Yet it is these farms the San Joaquin exporters are trying to get rid of. And the expanding almond orchards include farming on the tainted, selenium-laced desert lands near I-5, the Westlands district. These farms should be retired.

It is correct that, unlike the Delta farmlands, what is missing from the San Joaquin Valley is water. Once there was more than enough water – the Tulare Lake – larger than the Great Salt Lake in area. But the early cotton farmers dried it up. Tulare was also the natural percolation pond for the Valley’s groundwater table. Valley farmers have created their own water problem. They need to look for ways to balance their need with available water while reducing reliance on the Delta.

During this pandemic, the narrowly-focused view to rush a new Delta tunnel is forging ahead, even while the Delta Stakeholders have complained that with the COVID-19 rampant, now is not the time to ask communities in the North to try to defend themselves from this destructive project. Instead, now should be the time to focus on groundwater recharge, desalination, recycling, conservation to improve regional self-reliance. And we could use a plan to insure they deliver the food that America needs and not just the most profitable crop.

THIS is why we have a comment period on the single tunnel due Friday and why Karen Mann and the rest of the Stakeholder Engagement Committee are being asked to attend a video conference session DURING A PANDEMIC! This good write-up from California Water Research/ includes the letters Karen and other SEC members sent in requesting (pleading) with them to not move ahead while families and businesses were struggling to just keep their head above water (no pun intended).

Informative!

Worth reading and if you have the bandwidth to send in comments to the DWR this week, feel free to include an objection to them continuing to try to push this through while the Delta communities attention is diverted elsewhere. Here’s the details about sending in comments by April 17.

SWP Contract Amendment for Delta Conveyance meeting on Wednesday, April 8, 2020 at 10:00 a.m.

Dear All,

PARTICIPATE BY PHONE AND WEBINAR

Per the Governor’s direction on gatherings to protect public health and slow the spread of COVID-19, upcoming public meetings for the SWP Contract Amendment for Delta Conveyance will occur via phone and webinar only. Opportunities for public comment via conference call will occur as outlined in the meeting agenda.

For the best audio quality, participants should call in via conference call:

PHONE LINE: 719-359-4032
ACCESS CODE: 474346#

Please note that a guide has been posted online with step by step instructions on three different ways to join the audio conference based on phone and internet reliability. Please be patient as Adobe Connect adjusts for capacity.

The webinar can be accessed via the following link: http://kearnswest.adobeconnect.com/deltaconveyance.

WEBINAR CHAT INSTRUCTIONS

To make a public comment, navigate to the Chat Pod in the bottom right corner of the meeting’s interface.
In the empty field, highlighted in green, type the text Public Comment.
Hit enter or click the send icon to send the message to the entire group.

Participants can also listen to audio through the webinar. Please note that participants using webinar audio will be kept muted for the duration of the meeting. Detailed instructions for setting up webinar audio are included below.

WEBINAR AUDIO INSTRUCTIONS (Click here to access the detailed guide)

Enter the webinar using the Adobe Connect App, rather than through a web browser. This might happen automatically, or you may be prompted to open the Adobe Connect App when selecting the webinar link.
Once you have entered the webinar, turn on audio by clicking the Meeting button in the top left corner, and then selecting Audio Setup Wizard.
Navigate through the Audio Setup Wizard as prompted. You will then be able to hear audio from the meeting.
Please contact Kai Walcott of Kearns & West, the facilitation team, at (415) 568-9990 if you have any questions about the webinar.

AGENDA

The draft agenda for the SWP Contract Amendment for Delta Conveyance meeting on Wednesday, April 8, 2020 is posted on the Department of Water Resources Box site, here: https://cadwr.box.com/s/irusyewojv4nwzmxfznghzmgli9sswcw. The meeting is scheduled to begin at 10:00 a.m.

Please contact Brian “BG” Heiland at Brian.Heiland@water.ca.gov if you have any questions or comments, or need additional information.

Thank you,

The Kearns & West Facilitation Team

I know a lot of you are small business owners, trying to navigate what to do during these trying times.

This is the US Senate’s Small Business Owner’s Guide to the Coronavirus Aid, Relief, and Economic Security (CARES) Act. It talks about points of contact and the programs now available to support you and your businesses.

Click to access F2CF1DD78E6D6C8C8C3BF58C6D1DDB2B.small-business-owner-s-guide-to-the-cares-act-final-.pdf