NEWS WORTH NOTING: Agencies should dump tunnels plan or start over, say conservation groups; Cache Slough Complex Conservation Assessment released; 100 Shell Oil underground storage tank sites banned from cleanup fund; Malibu Creek Flows supplemented to preserve threatened steelhead trout

DELTA TUNNELS: Agencies Should Dump Plan or Start Over, say conservation groups

President Obama’s environmental legacy at risk

From Restore the Delta:

Restore the Delta logoA coalition of conservation, public interest, and fishing groups has sent a letter to the state and federal agencies overseeing the proposed Delta Tunnels proposal asking them to either drop the plan, or develop a new Draft EIR/EIS for the project that includes newly released information.

The letter, written by Robert Wright senior counsel at Friends of the River, is addressed to the California Natural Resources Agency, the U.S. Departments of the Interior & Commerce, the U.S. Environmental Protection Agency and U.S. Bureau of Reclamation, and the Council on Environmental Quality at the White House.

The letter focuses on new information discovered by Restore the Delta through the California Public Records Act that revealed an unreleased economic analysis showing the Tunnels would require taxpayer subsidies and would export far more water from the San Francisco Bay-Delta than has been disclosed to the public. Without a full accounting of the projects costs, who will pay, and impacts to the environment, federal and state agencies have no legal way to move forward.

The letter concludes that approving the project as proposed, threatens to tarnish President Obama’s outstanding environmental legacy.

Main points in the letter:

1. Rather than water districts covering the entire cost of the Delta Tunnels, the proposal simply doesn’t pencil out without taxpayer subsidies.

“…in November of 2015, the economic consultant for the project, David Sunding of The Brattle Group, prepared a draft CalWater Fix Economic Analysis for the California Natural Resources Agency. That Economic Analysis, purporting to justify the economic feasibility of the project, assumed that the federal government or some other entity would need to provide a subsidy of $6.5 billion to make the Water Tunnels a breakeven proposition for agricultural users of the water.”

2. The amount of water that must be exported from the San Francisco Bay-Delta to make the Tunnels viable is far larger than proponents have claimed in the draft environmental documents.

“As explained by Dr. Jeffrey Michael, Director of the Center for Business and Policy Research at the University of the Pacific the subject Analysis “assumes water yields (the difference in export water delivery with and without the tunnels) are 4 times higher than in official Water Fix documents including its RDEIR/SDEIS and petition to the State Water Resources Control Board.”

3. Groups promoting the Delta Tunnels have not been truthful with the public or federal oversight agencies.

“This project reeks of misrepresentation by the proponent agencies. The public is told the beneficiary users will pay all costs of the project. In secret, the proponent public agencies have received information from their own economic consultant that a substantial public subsidy would be necessary for the project. The public is told one thing in public about water yields and corresponding impacts on the Delta and fisheries. In secret, the proponent public agencies base financial feasibility decision-making on assuming far higher water yields than disclosed to the public.”

4. Because of this new information the project in on shaky legal ground.

“That new Draft EIR/EIS must include disclosure of whether taxpayers as well as ratepayers will be paying for the project and disclosure of the true quantities of freshwater flows that will actually be diverted for the Water Tunnels. The truth needs to start. The lying needs to stop. If instead, you allow Reclamation and DWR to issue a Final EIR/EIS for this project, that will constitute failure to proceed in the manner required by law. We are confident that you will decide to honor President Obama’s legacy and our laws by proceeding in the manner required by law.”

5. President Obama’s environmental legacy is on the line.

“President Obama has established a legacy of honesty, scientific integrity, and commitment to conservation and protection of our precious natural resources. There is no acceptable reason for you to allow the California Water Fix Project to go forward at this time staining that legacy in the process of contributing to the destruction of the San Francisco Bay Delta estuary.”

Groups signing the letter are:
AquAlliance, California Sportfishing Protection Alliance, California Water Impact Network, Center for Biological Diversity, Environmental Justice Coalition for Water, Environmental Water Caucus, Friends of the River, Planning and Conservation League, Restore the Delta, and Sierra Club California.

Cache Slough Complex Conservation Assessment

From the Fish Restoration Program:

DWR and CDFW recently completed Volume 1 of the Cache Slough Complex Conservation Assessment. The Conservation Assessment evaluates the potential for restoring the Cache Slough Complex as part the Fish Restoration Program (FRP) and provides information on the current and historic conditions of the Cache Slough Complex in order to generate a regional landscape conceptual model for conservation.

Volume 1 of the Cache Slough Complex Conservation Assessment, available here, provides guidance for regional implementation of tidal wetland restoration, taking into account intended ecological outcomes for the FRP species of concern, costly impediments to restoration, and socioeconomic factors that restoration can affect. The information contained in Volume 1 is consolidated from scientific reports, collected data, and personal communications.

Volume 2, still under development, focuses on providing the overarching scientific foundation for conservation efforts and restoration goals in the Cache Slough Complex. Volume 2 presents an overall regional restoration approach, restoration strategies using regional conceptual models, key drivers for restoration outcomes, a procedure for assessing the restoration potential of available properties, principles for approaching landscape-scale restoration, and compatibility with other regional plans.

Restoration of the Cache Slough Complex will take place within the context of other restoration planning in the Sacramento-San Joaquin River Delta. This Conservation Assessment informs other conservation efforts, notably the California Natural Resources Agency’s California EcoRestore initiative.

For additional information on the Cache Slough Complex Conservation Assessment, visit DWR’s Cache Slough Assessment website.

State Water Board Bans 100 Shell Oil Company Underground Storage Tank Sites from Cleanup Fund

From the State Water Resources Control Board:

SWRCB logo water boardsAs part of a settlement agreement, the State Water Resources Control Board has permanently banned 100 of Shell Oil Company’s underground storage tank (UST) claims, held by a subsidiary Equilon Enterprises LLC, from the UST Cleanup Fund for allegedly claiming reimbursement through false or misleading statements on claim forms.

Disqualifying these 100 claims could save the UST Cleanup Fund up to $150 million, significantly reducing Shell’s future reimbursements from the UST Cleanup Fund. In addition, the settlement agreement required Shell to pay $20 million to the parties to the settlement agreement. Specifically, Shell has paid the State Water Board more than $11 million to settle the State Water Board’s administrative claims and alleged False Claims Act violations.

Shell has paid an additional $8 million in settlement moneys to the state’s Office of the Attorney General and a whistleblower related to the alleged violations of the False Claims Act.  The State Water Board’s portion of the settlement moneys will go to the UST Cleanup Fund and be used to reimburse other UST Cleanup Fund claims.

“The UST Cleanup Fund is a critical tool the State Water Board uses to protect public health and safety and the environment,” said Cris Carrigan, director of the State Water Board’s Office of Enforcement.  “It is imperative that claimants not engage in bad faith or fraud when accessing these vitally important public-benefit funds by submitting false or misleading statements.  If they do, the State Water Board has powerful administrative authority to disqualify and take deductions against claims.”

This settlement is the third one reached by the UST Cleanup Fund for similar conduct by a major oil company, and the State Water Board has been in touch with other state administrators nationwide regarding such conduct by multiple major oil companies.

“The UST Cleanup Fund relies on accurate and truthful claimant self-reporting when issuing reimbursements,” said UST Cleanup Fund Manager Lisa Babcock.  “We are pleased that Shell has now complied with the requirement and recognizes the critical need for full disclosure to the UST Cleanup Fund.”

State Water Board staff had challenged Shell’s UST Cleanup Fund claims since 2007, and developed an administrative case to disqualify certain claims from seeking reimbursement.  The State Water Board and the Office of the Attorney General uncovered evidence that Shell failed to disclose reimbursements it received from insurance companies for the same sites where Shell was seeking UST Cleanup Fund reimbursement.  Claimants are prohibited from receiving UST Cleanup Fund reimbursement for cleanup costs that have been, or will be, reimbursed from another source.  Shell UST Cleanup Fund claims were placed on hold during the dispute between Shell and government agencies. As part of the settlement, the State Water Board will process reimbursement of up to $20 million in eligible claims subject to certain conditions set forth in the settlement.

Allegations and Settlement Agreement

On April 6, 2010, a whistleblower filed a complaint in Sacramento Superior Court against Shell alleging fraud under the California False Claims Act.  The complaint alleged that when Shell submitted applications to the UST Cleanup Fund seeking reimbursement of costs at UST sites, it failed to disclose it previously had received reimbursement from a series of insurance claims, litigation, and settlements for the same sites on its Non-Recovery Certifications.  This action resulted in a misrepresentation to the State Water Board as all types of monies received from other sources must be disclosed on its Non-Recovery Certifications.  Double payments are not allowed under the UST Cleanup Fund.

The whistleblower complaint stated Shell’s failure to accurately report to the State Water Board the sources of other payments constituted a violation under the False Claims Act.  The judicial action sought triple damages, penalties and attorney fees and costs against Shell.  After the complaint was filed, the Office of the Attorney General coordinated its investigation with the State Water Board to determine how to best pursue and potentially resolve the claims asserted in the false claims lawsuit, as well as the State Water Board’s administrative claims.

Although the State Water Board was not a party to the False Claims Act litigation, it joined in the settlement negotiations arguing that it had independent administrative and litigation claims it could pursue.  Shell cooperated with the State Water Board and the Office of the Attorney General in the investigation.  The State Water Board’s resolution of the matter was contingent upon the settlement containing both a disqualification of certain claims and a reimbursement of funds previously paid to Shell from the UST Cleanup Fund.  The disqualification of certain claims sends a strong message to all UST Cleanup Fund claimants of the importance of fully disclosing all monies that have been, or will be, reimbursed from another source.

The UST Cleanup Fund was created by the Barry Keene Underground Storage Tank Cleanup Fund Trust Act of 1989 and is administered by the State Water Board.  The regulations implementing the Act allow the State Water Board to disqualify and deduct claims for reimbursement if claimants fail to disclose cleanup cost payments from another source.

Under the terms of the False Claims Act component of the settlement agreement, Shell will pay more than $11.3 million to the State Water Board and almost $5 million to the Office of the Attorney General in damages.  In addition, Shell will pay more than $3.4 million to the whistleblower, in addition to reimbursing the third-party plaintiff for attorney fees and costs.

Under the terms of the Barry Keene Act component of the settlement agreement, 100 UST Cleanup Fund claims where Shell was previously qualified to receive reimbursements will now be permanently barred from the UST Cleanup Fund.  These claims are no longer eligible to receive any reimbursement for cleanup costs.  The UST Cleanup Fund’s average reimbursement is about $500,000 per eligible claim, but many claims use the entire $1.5 million allotment, so the savings for the UST Cleanup Fund is between $50 million and $150 million.

A copy of the settlement agreement approved by the Sacramento County Superior Court can be found at the State Water Board enforcement webpage.

Las Virgenes – Triunfo JPA Supplementing Malibu Creek Flows to Preserve Threatened Steelhead Trout

From the Las Virgenes Municipal Water District:

Recycled water being released from the Tapia Water Reclamation Facility to the Malibu Creek outlet.

Recycled water being released from the Tapia Water Reclamation Facility to the Malibu Creek outlet.

The Las Virgenes – Triunfo Joint Powers Authority (JPA) has begun adding already-treated recycled water from the Tapia Water Reclamation Facility (TWRF) to Malibu Creek to help sustain a threatened downstream species.

Augmentation of the creek’s waters began Friday, September 16 and will remain in place until natural flows at the L.A. County Malibu Creek Gaging Station reliably exceed 2.5 cubic feet per second, which is considered the minimum amount needed to support steelhead trout, a federally-listed endangered species that can become stranded in pools further down the canyon.

David W. Pedersen, General Manager for the JPA said, “In this fifth year of drought, we are able to meet our obligation to the watershed by using recycled water that is normally allocated for irrigation purposes. This is a beneficial use of fully-treated recycled water to support fish in Malibu Creek, parts of which are currently dry.”

The JPA began adding water to the creek at a rate of 500 gallons per minute (gpm), then increased the flow to 600 gpm as much of the water was absorbed by dry creek beds and thirsty growth along its banks.

This is the fourth consecutive year the JPA has added water to the creek.
“Recycled water that reaches the habitat pools will provide a refuge for the steelhead trout,” Mr. Pedersen said.

Malibu Creek is one of the southernmost locations where steelhead trout are present. Unlike salmon, steelhead can make several trips to and from the ocean, thriving for times in both fresh and salt water habitats, passing into Malibu Creek when the sand berm adjacent to Surfrider Beach is open. After the berm closes in the spring, the fish are stranded in upstream pools during prolonged droughts. The endangered fish are then vulnerable as water evaporates and then become easy targets for predators as they are captive in ever shrinking, shallower waters.

Mr. Pedersen added, “While the JPA is obligated to provide water for this purpose, it’s part of our stewardship role in the Malibu Creek watershed. We accept that responsibility while we hope that the coming winter months bring rains that will provide natural and sustained relief.”

The Las Virgenes – Triunfo JPA is comprised of Las Virgenes Municipal Water District (LVMWD) and Triunfo Sanitation District (TSD). The JPA provides wastewater treatment, recycled water distribution and biosolids composting for some 90,000 residents of Western Los Angeles and Eastern Ventura counties. LVMWD serves the cities of Agoura Hills, Calabasas, Hidden Hills, Westlake Village and surrounding unincorporated areas of Los Angeles County including West Hills and Chatsworth. TSD provides services to Oak Park, North Ranch, a portion of Thousand Oaks and Lake Sherwood.

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About News Worth Noting:  News Worth Noting is a collection of press releases, media statements, and other materials produced by federal, state, and local government agencies, water agencies, and academic institutions, as well as non-profit and advocacy organizations.  News Worth Noting also includes relevant legislator statements and environmental policy and legal analyses that are publicly released by law firms.  If your agency or organization has an item you would like included here, please email it to Maven.

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