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CSPA charges Water Board, feds with violations of laws protecting salmon

by Dan Bacher
The California Sportfishing Protection Alliance (CSPA) today requested the State Water Resources Control Board (SWRCB) to immediately re-establish "protective, non-lethal temperature" criteria at the Clear Creek compliance point on the Sacramento River in order to protect salmon. The group also asked the board to require the U.S. Bureau of Reclamation (USBR) to reduce water deliveries in order to preserve what’s left of cold water reserves in Shasta Reservoir.
cspa_complaint__temperature_1_1.pdf_600_.jpg
CSPA charges Water Board, feds with violations of laws protecting salmon

by Dan Bacher

A prominent sportfishing group today formally charged the state and federal governments with violating numerous laws protecting salmon, Delta and longfin smelt and other fish species during the California drought.

The California Sportfishing Protection Alliance (CSPA) filed a formal complaint against the State Water Resources Control Board (SWRCB) and United States Bureau of Reclamation (USBR) for violations of the Water Quality Control Plan for the Sacramento River and San Joaquin River Basins (Basin Plan), violations of WR Order 90-05 and Sacramento River temperature requirements and for violations of the Clean Water Act (CWA), Endangered Species Act (ESA), Public Trust Doctrine and the California Constitution.

"Given the extreme risk of extinction to winter-run Chinook salmon and possibly several other species, we request the SWRCB to act expeditiously in responding and requiring USBR to respond to the allegations and to immediately comply with criteria established for the protection of fish and wildlife," said Bill Jennings, CSPA Executive Director, in a cover letter to the complaint.

The failure of the Board and Reclamation to follow the laws protecting salmon and other fish is a classic case of the capture of the regulatory apparatus by the regulated. Rather than doing the right thing and following the law, the state and federal agencies have become servants of corporate agribusiness interests including Stewart Resnick of Paramount Farms and the Westlands Water District, the State Water Contractors and the Metropolitan Water District of Southern California.

The complaint states, "Specifically, CSPA alleges that the SWRCB has failed to implement crucial Basin Plan water temperature criteria and CWA requirements protecting water quality and fish and wildlife beneficial uses with respect to USBR’s water rights permits and licenses and has failed to take enforcement actions against USBR’s habitual violations of the Basin Plan, CWA and WR Order 90-05 temperature criteria and requirements. CSPA alleges that USBR has failed to comply with explicit temperature criteria protecting fish and wildlife beneficial uses contained in the Basin Plan, CWA and WR Order 90-05. CSPA additionally alleges that the SWRCB and USBR have failed to comply with their respective responsibilities and obligations under the ESA, Public Trust Doctrine and Article X of the California Constitution."

The complaint points out the "poor natural production" of the 2013 brood year of Sacramento River winter-run, spring-run and fall-run Chinook salmon and the "destruction of" the 2014 year classes of salmon.

"Given the presence of lethal temperatures in the Sacramento River this year that threaten a repeat of last year’s disaster, CSPA asks the SWRCB to act expeditiously in responding and in requiring USBR to respond to the allegations herein," according to the complaint. "CSPA requests that the SWRCB immediately re-establish protective, non-lethal temperature criteria at the Clear Creek compliance point and that the SWRCB require USBR to reduce water deliveries in order to preserve what’s left of cold water reserves in Shasta Reservoir. CSPA further requests the SWRCB to issue sanctions against USBR for failure to comply with the Basin Plan, CWA and ESA."

The complaint concludes, "We request that the SWRCB immediately use its public trust, constitutional and water rights authorities to reduce water deliveries to low valued crops that are further depleting already inadequate cold water reserves, to require USBR to modify operations to ensure that sufficient carryover reserves of cold water necessary to comply with CWA and Basin Plan temperature criteria remain in Shasta Reservoir, and to issue sanctions against USBR for its willful disregard for public trust resources and beneficial uses. We also request that the SWRCB accelerate the present review of Bay-Delta standards, including a comprehensive balancing of the public trust with competing uses, and provide us a response to our 13 August 2014 complaint regarding illegal diversion by DWR and USBR and petition to adjudicate Central Valley waters."

Jennings emphasized the significance of the complaint in light of the potential extinction of several species of fish. "Should winter-run Chinook salmon, Delta and longfin smelt and potentially several other species that have evolved and thrived over millennia go extinct, it will not be because of drought. It will be because the SWRCB and USBR have refused to comply with the law," said Jennings.

In the current drought, California growers have expanded their almond acreage by 150,000 acres while the Brown administration has mandated that urban families slash their water usage by 25 percent. At the same time, the state and federal governments' failure to obey our laws has driven winter and spring Chinook salmon, Delta and longfin smelt, Sacramento splittail and other species closer and closer to extinction (http://www.eastbayexpress.com/SevenDays/archives/2015/05/15/californias-thirsty-almond-acreage-grows-by-150000-acres-during-record-drought)

The complaint is available at: http://calsport.org/news/wp-content/uploads/CSPA-Complaint-Temperature.pdf

The California Sportfishing Protection Alliance, California Water Impact Network and AquAlliance today also filed a Protest, Objection, Petition for Reconsideration and Petition for Hearing (Protest) regarding the 21 May 2015 Temporary Urgency Change Petition (TUCP) submitted by the Department of Water Resources and U. S. Bureau of Reclamation (USBR) and the 3 July 2015 responding Order by the State Water Resources Control Board (SWRCB).

"These documents cumulatively demonstrate that the TUCP Order are not within the SWRCB’s jurisdiction, will not best serve the public interest, are contrary to law and will have an adverse environmental impact," said Jennings.
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