NEWS WORTH NOTING: New report: Delta water supply impacted by human use protections and capacity significantly more than endangered fishes; Feinstein, Speier to EPA: Explain reversal of Redwood City salt plant determination

New report: Delta water supply impacted by human use protections and capacity significantly more than endangered fishes

89% of Delta water flow into Bay was to combat salinity or due to water flows exceeding export capacity. Less than 1.5% related to Delta smelt.

From the Bay Institute, the San Francisco Baykeeper, and The Nature Conservancy:

New findings published in the journal San Francisco Estuary & Watershed Science, reveal that water exports from the South Delta were limited by infrastructure and water quality concerns far more often than protections for endangered species. During the 2010-2018 study period, 89% of Central Valley water flowing into San Francisco Bay was the result of salinity control and infrastructure constraints on water exports compared to less than 1.5% caused by endangered species act safeguards specific to protection of Delta smelt from entrainment in the export pumps.

“Safeguards for the San Francisco Bay estuary’s six endangered fish species led to relatively small increases in freshwater flow to the Bay,” said Greg Reis, staff scientist for The Bay Institute and lead author of the research article. “In two of the nine years we studied, protections for Delta Smelt did not limit water exports for even a single day — the effect on water supplies of protecting this unique species, which functions as an indicator of overall ecosystem health, is far less than what’s commonly reported.”

Reis added, “Most of the water flowing out of the Delta to San Francisco Bay exceeds system capacity in wet years, and in dry years is needed to keep salt away from Delta farms and state and federal export pumps in order to protect human uses of this water.”

Analyzing long-term trends regarding the factors that governed water export facilities in the Delta, researchers from The Bay Institute, The Nature Conservancy, and San Francisco Baykeeper found that data do not support the much-publicized narrative of fish vs. farmer which significantly overstates how much endangered species regulations have impacted the amount of water that is exported from the Delta.

“Despite water quality regulations that are intended to protect fisheries and wildlife populations in general, and endangered species act protections for the most imperiled fishes, the proportion of Central Valley river flows that make it all the way to San Francisco Bay has been declining for decades,” said Dr. Jonathan Rosenfield, Senior Scientist at San Francisco Baykeeper and co-author of this study. “Currently, Californians divert, on average, about 1/2 of the ecologically critical winter-spring runoff that would otherwise flow into San Francisco Bay, and the fish, wildlife, and water quality that rely on this water are suffering as a result.”

For years the narrative of water usage in the Delta has been driven by the contention that water use by agriculture was being limited by environmental regulations. But, access to data regarding those claims has been extremely challenging. Though data were publicly available, the data were scattered in various locations, often in ad-hoc fashion without context, which led to misinformation being inadvertently amplified.

Improved access to, and clear context for, data presented by state and federal agencies is critical to preventing unfounded claims from filtering into government water policy.

“Given the ongoing conversation, it was surprising to see how low the numbers actually are,” said Dr. Jeanette Howard, Director of Science, at The Nature Conservancy’s California Water program. “But, what this study clearly shows is that we need more transparency and public access to data when it comes to understanding our water in California. As temperatures rise and we see wider swings between wet and dry seasons across the state, we need to base our decisions around usage of this critical resource in reality.”

Between 2010 and 2018, exports were limited to maintain salinity standards for human water use on 29% of days, roughly the same frequency as that required for protections of the Bay’s six endangered fish species. Often overlooked in the rhetorical battle over environmental protections, exports were constrained by infrastructural constraints (including full storage reservoirs, required system maintenance, or because the export system had met capacity) on 1 of 6 of days, including 59% of days in water year 2017.

In 2014 and 2015, the driest years of the study, the contrast was especially stark. Salinity control led to export constraints on 62% and 56% of days, respectively, while exports were not cut short to protect Delta smelt on any days. In 2011 and 2017, the wettest years studied, infrastructure and hydrologic limitations constrained project water exports on 49% and 59% of days, respectively.

Researchers also looked at how much freshwater flows from the Central Valley watershed to San Francisco Bay. The status of many fish and aquatic wildlife species depend on freshwater flows through the estuary during winter and spring. They found that the amount of freshwater runoff from the Central Valley that reaches San Francisco Bay has decreased significantly over time, even following implementation of new water quality regulations in 1995. The vast majority of the water flowing into San Francisco Bay over the past nine years was necessary to control water salinity or exceeded export pump capacity, and all the water flowing to the Bay helped maintain water quality for human consumption.

Feinstein, Speier to EPA: Explain Reversal of Redwood City Salt Plant Determination

Senator Dianne Feinstein and Congresswoman Jackie Speier (both D-Calif.) today called on EPA Administrator Andrew Wheeler to explain how his agency determined that the Redwood City Salt Plant Site was not subject to federal permitting under the Clean Water Act despite an earlier draft that stated otherwise.

“As you know, EPA Region 9 drafted a jurisdictional determination in November 2016 finding that 1,270 acres of the 1,300 Redwood City Salt Plant Site are ‘waters of the United States’ and therefore subject to federal permitting requirements under the Clean Water Act,” the members of Congress wrote. “After considering both EPA Region 9’s November 2016 draft determination and EPA’s March 2019 final decision document, we have serious concerns regarding the discrepancies between the two determinations.”

Full text of the letter follows:

March 22, 2019

The Honorable Andrew Wheeler
Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20004

Dear Administrator Wheeler:

We are concerned about the Environmental Protection Agency’s March 1, 2019 determination that the Redwood City Salt Plant site is non-jurisdictional under the Clean Water Act. We write to request further information, detailed below, as to how this final determination was made by your agency, especially in light of the Environmental Protection Agency (EPA) Region 9’s 2016 findings.

As you know, EPA Region 9 drafted a jurisdictional determination in November 2016 finding that 1,270 acres of the 1,300 Redwood City Salt Plant Site are “waters of the United States” and therefore subject to federal permitting requirements under the Clean Water Act. After considering both EPA Region 9’s November 2016 draft determination and EPA’s March 2019 final decision document, we have serious concerns regarding the discrepancies between the two determinations.

Based on relevant case law, prior agency practices, and a land survey, EPA Region 9 determined that the salt ponds in the Redwood City Salt Plant site are “waters of the United States” as defined by the Clean Water Act because: 1) the site was part of the navigable waters of the San Francisco Bay and were not converted to “fast land”; 2) the salt ponds are navigable in their current state and could be used in interstate or foreign commerce with reasonable improvements; 3) the salt ponds are impoundments of waters of the United States; and 4) there is a significant nexus between the salt ponds and navigable waters of the San Francisco Bay.

Reaching the opposite conclusion, EPA Headquarters issued the final determination in March 2019, stating that the site is non-jurisdictional because the Redwood City Salt Plant was converted to “fast land” prior to the passage of the Clean Water Act.

However, the explanation underlying this finding contradicts the extensive research and land surveying done by Region 9:

  • In the March 2019 jurisdiction determination, EPA Headquarters states that this parcel is not jurisdictional because it is separated from the surrounding aquatic system by levees. Yet, case law cited in the Region 9 draft determination concluded that man-made diversions of water do not preclude the waters behind the diversion from jurisdiction unless they are filled.

Please explain the reasoning for not applying the legal decisions cited by Region 9, and in this instance how the levees on this site would not qualify as man-made diversions.

  • The final determination states that the parcel in question has been filled in. However, Region 9 concluded that only 95 acres of the 1,300-acre property have been filled and converted to “fast lands,” while the rest of the site could be restored to bay marshlands.

What was the basis for EPA Headquarters characterization of this property as “fast lands,” and what information or methodology was used to justify this finding?

  • The final jurisdictional determination finds that the water at the Redwood City Salt Plant is a byproduct of the industrial activity at the site and, therefore, not subject to Clean Water Act jurisdiction. However, in 1990, the Ninth Circuit Court of Appeals held that salt production pits are within the Clean Water Act’s regulatory definition of “other waters” and could not be excluded “even if they are in fact dry most of the year.” Additionally, Region 9’s draft determination states that the salt ponds enclosed by levees are regularly inundated with water from the San Francisco Bay and precipitation, and therefore not solely comprised of industrial products.

Please explain the basis for the difference in Headquarters findings from that of Region 9.

  • In reviewing the March 2019 final determination, it is clear that portions of the document are directly copied from the 2016 Region 9 draft, such as the historical background section. On the other hand, the final determination does not include any of the extensive legal and factual analysis from the 2016 document.

Please explain why these pertinent sections are missing from the final evaluation and whether EPA headquarters considered this important information.

In addition to answers to the above questions, we also ask that you provide any and all communications or information, including but not limited to emails, letters, calendar appointments, and studies related to this final decision.

We appreciate your attention to this important matter and your prompt consideration of our requests.

Sincerely,

Dianne Feinstein
United States Senator

Jackie Speier
Member of Congress

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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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