SOUTHDELTA WATERAGENCY 4255 PACIFIC A VENUE, SUITE 2 STOCKTON, CALIFORNIA 95207
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SOUTHDELTA WATERAGENCY 4255 PACIFIC A VENUE, SUITE 2 STOCKTON, CALIFORNIA 95207
SOUTHDELTA WATERAGENCY 4255 PACIFIC AVENUE, SUITE 2 STOCKTON, CALIFORNIA 95207 TELEPHONE (209) 956-0150 FAX (209) 956-0154 E-MAIL [email protected] Directors: Jerry Robinson, Chairman Robert K. Ferguson, Vice-Chairman Natalino Sacchetti Jack Alvarez Mary Hildebrand Counsel & Manager: John Herrick January 22, 2016 Via E-Mail: CWFhearin!:!@ waterhoard~.ca. 20v and California WaterFix Service List Re: Comments Regarding Procedural Issues for the 28 January 2016 Pre-Hearing Conference for the California WaterFix Project Dear Sir/Madam: The following are South Delta Water Agency, Central Delta Water Agency, Heritage Land Company Inc., Lafayette Ranch, Rudy M. Mussi Investment LP, and Bert Sacchetti Farms, Inc.'s ("SDWA") comments on procedural issues for the Change in Point of Diversion Petition/Hearing as requested by the State Water Resources Control Board. As set forth in more detail below, numerous procedural problems are present which preclude the Board from conducting the hearing as scheduled. The Board should therefor conduct a multi-day hearing/planning session in order to reasonably determine what needs to be done to process the Petition and the water quality certification and a time line for accomplishing the same. 1. The Notice states that Phase 2 of the Bay-Delta Water Quality Control Plan process will be conducted concurrently with the Petition. The Petition is a quasi-adjudicative action by the SWRCB while the Phase 2 of the Bay-Delta process is a quasi-legislative process. If the underlying issues and interests were unrelated, it might be possible to mix them together somehow. However, since the Bay-Delta process deals with developing objectives to protect beneficial uses and the Petition deals with conditions on the DWR and USBR to meet those objectives, combining them appears to be in conflict with the Racanelli decision. Racanelli specifically admonished the SWRCB to not combine and thus not confuse the two functions. 2. Per the Delta Reform Act, the Hearing on the Petition cannot proceed until the Bay-Delta process is completed. The notice incorrectly interprets the Act by confusing the direction to develop "non-regulatory flow criteria" with the precondition to approving the Petition by requiring any approval include "appropriate Delta flow criteria.'• The SWRCB did the former but has in no way developed the latter. There is no precedence for creating interim or temporary flow standards (and export standards and outflow standards, etc.) during a change [email protected] Page- 2January 22, 2016 in point of diversion proceeding. The SWRCB would be violating the requirements of both processes by combining the two. A change in point of diversion is to determine if a permitee can move its diversion without harming other beneficial uses, not to also determine what beneficial uses' need for protection separate from the change in diversion point. 3. A hearing cannot go forward without there first being a completed environmental review of the project which resolves the comments and complaints of that review. The Water Fix processes received thousands of comments pointing out deficiencies with the project. The project does not specify what its operations will be, and the current environmental reviews indicate and list the specific adverse impacts to third parties, beneficial uses and legal users. The SWRCB should first conduct the necessary hearing to determine what water is available under what conditions for export. It is doubtful that the current permits of DWR and USBR support current operations much less the unspecified operations of the Water Fix which seeks additional exports. 4. The Notice contemplates approving the Petition by requiring compliance with D-1641 with what ever new, interim fishery flows are concurrently developed. In addition to the objections above, such conditional approval based upon compliance with D-1641 is not supportable. The DWR and USBR are currently in violation of Order WR 2010-0002 (COO) which required them to submit a plan by which southern Delta salinity standards would be met. The deadline in that COO was January 1, 2013; over three years ago. No such plan has been developed much less submitted and violations of the D-1641 salinity standards are now common place. The current and lack of action by the projects to meet these 0-1641 obligations and the SWRCB's failure to enforce not only the permits but also the COO, legally preclude any approval of the Petition conditioned upon compliance with 0-1641. 5. The order of decision-making purposed in the Notice is inappropriate. Approval of the water quality certification cannot logically or legally precede the hearings on the Water Fix project, the change Petition or the finalization of the underlying environmental documents. In addition and as objected to in our Protest, it is inappropriate to delegate to the Executive Director the power to issue the water quality certification, especially based on information not included in the record. The process does not just suggest the approval is a foregone conclusion, the notice for all intents and purposes expressly states it. The underlying Water Fix project's own DEIR/S's specify how the project will degrade water quality and the EPA has stated in writing any project including the twin tunnels will violate the Clean Water Act. 6. The Hearing proposes cover not only fundamental changes to the operation of the Bay-Delta system, but also proposes to consider and temporarily determine radical flow, export and outflow changes. Such a monumental process cannot be done in a few months and still conform to basic due process requirements. SDWA et. al. are now beginning the process to depose the necessary witnesses who were involved with the production of the OEIRIS. It is likely that some environmental interests will want to depose fishery agency biologists as well. [email protected] Page- 3January 22, 2016 The current time line will hinder if not preclude the necessary depositions be done before the required submittal of testimony, and thus the Hearing cannot go forward as currently noticed. 7. The time frames for statements, direct examination and cross-examination are insufficient. We suggest 45 minutes for each party's opening statement regardless of any combined presentations. Direct, even with the witness required to summarized his/her testimony should be no less than 60 minutes. Cross should not be limited because witnesses are on a panel. Each examiner should be entitled to 90 minutes per witness as may necessary. 8. As covered in our Protest, there can be no requirement that parties submit terms and conditions (or other information). It is clear from the DEIRIS that the Water Fix will adversely affect fish and wildlife, in-Delta users and a variety of other interests. It is also contrary to various statutes and regulations. As such, there may not be any reasonable or enforceable conditions under which it might proceed. Requiring the parties to specify such appears to be a means by which the SWRCB will draft the final order "to mitigate" any adverse effects when approving the Petition. Opening statements (written) should not be limited. If the DEIRIS reveals 50, 100 9. or more adverse impacts to legal users, a party should be able to cover each one adequately. There is no criteria by which one can predetermine a limit on the issues or relevant facts. 10. We join in CSPA et. al.' s objections to and correction of the SWRCB' s statement that "a responsible agency must assume that the CEQA document prepared by the lead agency is adequate." The SWRCB's own comments to the two EIRIS processes of the BDCP and Water Fix support CSPA's position. We will attend the scheduled pre-Hearing Conference and look forward to discussing the above at that time. Very truly yours, ~~L JHNHERRICK Proof of Service Attached 1 PROOF OF SERVICE 2 Waterfix Petition Hearing I, Dayle Daniels, am over the age of eighteen years and employed in the County of San 3 4 Joaquin, California; I am not a party to this action; my business address is John Herrick, Attorney 5 at Law, 4255 Pacific Avenue, Suite 2, Stockton, CA 95207. On January 22, 2016, January 22, 2016, I served a true copy of the attached: 6 7 South Delta Water Agency, Central Delta Water Agency, Heritage Land Company Inc., Lafayette 8 Ranch, Rudy M. Mussi Investment LP, and Bert Bacchetti Farms, Inc.'s ("SDWA") comments 9 on procedural issues for the Change in Point of Diversion Petition/Hearing as requested by the 10 State Water Resources Control Board. 11 12 13 Addressed to: SEE ATIACHED LIST £iJ 14 BY MAIL [CCP § 10 13] I enclosed the documents in a sealed envelope addressed to the following persons and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the business' practice for collecting and processing correspondence for mailing. On the same day that the correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage thereon fully prepaid at Stockton, California addressed as [above] or [in the attached Service List of Participants]. 15 16 17 18 19 [1 BY CERTIFIED MAIL: Certified mail receipt No. _ _ _ _ _ _ _[ ] (attached)/Return Receipt Requested [1 BY OVERNIGHT MAIL SERVICE [CCP §1013(c)] I enclosed the documents in a sealed envelope provided by an overnight delivery carrier and addressed it to the persons identified below. I placed said envelope for collection at a regularly utilized drop box of the overnight carrier. [ ] BY FACSIMILE: Based on prior consent, I caused the documents to be sent to the following persons via telecopier/facsimile machine a true copy thereof to the parties indicated [above] or [in the attached Service List of Participants]. Pursuant to California Rules of Court, rule 2005(i), I caused the machine to print a transmission record of the transmission, a copy of which is attached to this declaration. The facsimile machine I used complied with California Rules of Court, rule 2003(3). [C.R.C. §2008 & § 2003(3)] [J BY PERSONAL SERVICE [CCP §415.10] I caused such envelope to be delivered by hand to the offices of the persons identified [above] or [in the attached Service List of Participants]. 20 21 22 23 24 25 26 27 BY EMAIL [CCP § 101 0.6] Based on a court order or an agreement of the parties to accept service by e-mail, I caused the documents to be sent to the e-mail addresses indicated [above] or [in the attached Service List of Participants]. 28 -1PROOF OF SERVICE I declare under penalty of perjury under the laws of the State of California that the 2 3 foregoing is true and correct. Executed on January 22, 2016, at Stockton, California. 4 5 6 7 8 9 10 II 12 I3 14 I5 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- PROOF OF SERVICE LIST OF PARTICIPANTS California Waterfix Petition Hearing (Scheduled to Commence on April 7, 2016) REVISED SERVICE LIST (Dated January 22, 2016) ~- Service List of Parties to Exchange Information (Parties Participating in Direct Testimony, Cross..Examination or Rebuttal) Table Parties Participating in Part I (May also be Parties in Part II) THE FOLLOWING PARTIES MUST BE SERVED WITH WRITTEN TESTIMONY, EXHIBITS AND OTHER DOCUMENTS. (Note: The parties listed below agreed to accept electronic service, pursuant to the rules specified in the hearing notice.) Party Authorized Representative/ Attorney California Department of James Mizell Water Resources U.S. Department of the Amy Aufdemberge, Esq. Interior Sacramento County Aaron Ferguson Water Agency Carmichael Water Aaron Ferguson District, The Alan Lilly & Ryan City of Roseville, The Bezerra Sacramento Suburban Water District San Juan Water District City of Folsom, The Yuba County Water Agency South Valley Water Association, et al. Biggs-West Gridley Water District Email Address of Authorized Representative/ Attorney [email protected] [email protected] Somach, Simmons & Dunn Somach, Simmons & Dunn Bartkiewicz, Kronick & Shanahan [email protected] [email protected] [email protected] [email protected] Alan Lilly & Ryan Bezerra Bartkiewicz, Kronick & Shanahan [email protected] [email protected] Alan Lilly & Ryan Bezerra Alan Lilly & Ryan Bezerra Alan Lilly & Ryan Bezerra Bartkiewicz, Kronick & Shanahan Bartkiewicz, Kronick & Shanahan Bartkiewicz, Kronick & Shanahan, P.C. Peltzer & Richardson, LC Somach, Simmons & Dunn, PC [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected] Alex M Peltzer Andrew M. Hitchings Glenn-Colusa Irrigation Andrew M. Hitchings District (GCID) North Delta Cares Authorized Representative's Affiliation Somach, Simmons & Dunn [email protected] [email protected]; [email protected] [email protected] Anna Swenson 1 Barbara Daly Barbara BarriganParilla & Tim Stroshane Barbara Daly SoiAgra Corp. Barry Sgarrella, CEO California Delta Chambers & Visitors Bureau Bill Wells [email protected] Brad & Emily Pappalardo Brett G. Baker [email protected]; [email protected] [email protected] Restore the Delta Steamboat Resort Brett G. Baker The Environmental Justice Coalition for Water Placer County Water Agency City of Brentwood, The [email protected] Somach Simmons & Dunn David Aladjem Downey Brand LLP [email protected] Downey Brand LLP [email protected] Dustin C. Cooper Butte Water District (BWD) Dustin C. Cooper Richvale Irrigation District (RID) Dustin C. Cooper Anderson - Cottonwood Dustin C. Cooper Irrigation District Reclamation District [email protected] Daniel Kelly Nevada Irrigation District 1004 [email protected]; [email protected] [email protected] Colin Bailey Reclamation District No. David Aladjem 800 (Byron Tract) Friant North Authority David Orth Deirdre Des Jardins Deirdre Des Jardins Plumas Mutual Water Company Restore the Delta Dustin C. Cooper Dustin C. Cooper South Feather Water and Power Agency: Mike Glaze, SFWPA General Manager Dustin C. Cooper Western Canal Water District Dustin C. Cooper Paradise Irrigation District Dustin C. Cooper [email protected] [email protected] [email protected] Minasian, Meith, Soares, Sexton & CooperLLP Minasian, Meith, Soares, Sexton & Cooper, LLP Minasian, Meith, Soares, Sexton & Cooper. LLP Minasian, Meith, Soares, Sexton & Cooper, LLP Minasian, Meith, Soares, Sexton & Cooper, LLP Minasian, Meith, Soares, Sexton & Cooper, LLP Minasian, Meith, Soares, Sexton & Cooper, LLP Minasian, Meith, Soares, Sexton & Cooper. LLP Minasian, Meith, Soares, Sexton & Cooper, LLP 2 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; roland@ssjmud .org; [email protected] [email protected]; [email protected] Fennemore Craig, Lauren Caster, Friant Water Authority & Gregory Adams, Members Jennifer Buckman, and 13 others East Bay Municipal Utility District North San Joaquin Water Conservation District Fred Etheridge & Jonathan Salmon Jennifer Spaletta Spaletta Law City of Sacramento Office of the City Joe Robinson I Martha Attorney I Lennihan Lennihan Law Central Delta Water Agency, South Delta Water Agency (Delta Agencies), Lafayette Ranch, Heritage Lands Inc., Mark Bachetti Farms and Rudy Mussi Investments L.P. John Herrick, Esq. and Dean Ruiz, Esq. City of Stockton John luebberke & Tara Mazzanti San Luis & DeltaMendota Water Authority Stockton East Water District North Delta Water Agency & Member Districts [email protected] [email protected] [email protected]; [email protected] [email protected]; [email protected] Jon Rubin [email protected] Kama E. Harrigfeld Kevin O'Brien [email protected] [email protected] Downey Brand LLP 3 [email protected] Brannan-Andrus Levee Maintenance District; Reclamation District 407; Reclamation District 2067; Reclamation District 317; Reclamation District 551 ; Reclamation District 563; Reclamation District 150; Reclamation District 2098 Sacramento Valley Group Kevin O'Brien & David Downey Brand LLP AJadjem [email protected] [email protected] Kevin O'Brien & David Downey Brand LLP Aladjem [email protected] [email protected] County of San Joaquin, San Joaquin County Flood Control and Water Conservation Kurtis Keller District, and Mokelumne River Water and Power Authority County of Colusa, The Marcos Kropf Save the California Delta Alliance; Janet & Michael McCleary; Michael Brodsky Frank Morgan; and Captain Morgan's Delta Adventures, LLC Islands, Inc California Sportfishing Protection Alliance, California Water Impact Network, and AquAIIiance Snug Harbor Resorts, LLC Local Agencies of the North Delta Bogle Vineyards/Delta Watershed Landowner Coalition Diablo Vineyards and Brad Lange/Delta Watershed Landowner Coalition Neumiller & Beardslee Michael J. Van Zandt Michael Jackson, Bill Jennings, Chris Shutes, Barbara Vlamis, and Carolee Krieger [email protected] [email protected] Law Offices of Michael A. Brodsky Hanson Bridgett, LLP Law Offices of Michael Jackson [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Nicole S Suard [email protected] Osha Meserve [email protected] Osha Meserve [email protected] Osha Meserve [email protected] 4 Stillwater Orchards/Delta Watershed Landowner Coalition Patrick Porgans Osha Meserve [email protected] Patrick Porgans [email protected] San Joaquin River Exchange Contractors Water Authority Paul Minasian Coalition for a Sustainable Delta, The Paul S. Weiland Sacramento Regional County Sanitation District Westlands Water District County of Yolo City of Antioch Contra Costa County and Contra Costa County Water Agency Contra Costa Water District Daniel Wilson Paul Simmons Minasian, Meith, Soares, Sexton & Cooper, LLP [email protected] Somach, Simmons & Dunn, PC City of Antioch Downey Brand LLP [email protected]; [email protected] [email protected] [email protected] State Water Contractors Stefanie Morris Pacific Coast Federation of Fishermen's Associations and Stephan C. Volker Institute for Fisheries Resources [email protected] [email protected] [email protected]; [email protected] Ryan Hernandez Scott Shapiro and Kevin O'Brien Daniel Wilson [email protected] [email protected] Philip A Williams Philip J. Pogledich Ron Bernal [email protected] Volker law [email protected] Tehama-Colusa Canal Steven Saxton, Authority & water Meredith Nikkel & J. service contractors in its Mark Atlas sevice area Downey Brand [email protected] [email protected] [email protected] The San Joaquin Tributaries Authority (SJTA), Merced Irrigation District, Modesto Irrigation District, Oakdale Tim 0' Laughlin & Irrigation District, South Valerie Kincaid San Joaquin Irrigation District, Turlock Irrigation District, and City and County of San Francisco O'Laughlin & Paris, LLP [email protected]; [email protected] 5 Water Forum, The Earthjustice County of Solano Tom Gohring Trent W. Orr William Emlen [email protected] [email protected] [email protected] THE FOLLOWING PARTY MUST BE SERVED WITH WRITTEN TESTIMONY, EXHIBITS AND OTHER DOCUMENTS. (Note: The party listed below must be served a hard copy, pursuant to the rules specified in the hearing notice.) Party Clifton Court, L.P. Authorized Representative/ Attorney Suzanne Womack & Sheldon Moore Mailing Address of Authorized Representative/ Attorney 3619 Land Park Drive Sacramento, CA 95818 Parties Participating in Part II Only (Must also be Served in Part I) THE FOLLOWING PARTIES MUST BE SERVED WITH WRITTEN TESTIMONY, EXHIBITS AND OTHER DOCUMENTS. (Note: The parties listed below agreed to accept electronic service, pursuant to the rules specified in the hearing notice.) Party County of Sacramento, The Friends of the River Environmental Council of Sacramento Authorized Representative/ Attorney Aaron Ferguson Authorized Representative's Affiliation Somach Simmons & Dunn E. Robert Wright [email protected] Brenda Rose Kate Poole [email protected] [email protected] [email protected] [email protected]; [email protected] [email protected] Natural Resources Defense Council SAVE OUR SANDHILL Mike Savino CRANES Friends of the San Mitch Avalon Francisco Estuary [email protected]; [email protected]; [email protected]; [email protected]; [email protected] [email protected] [email protected] [email protected]; [email protected] Friends of Stone Lakes Osha Meserve National Wildlife Refuge American Rivers, INC [email protected] [email protected] Brian Johnson Trout Unlimited California Department of Carl Wilcox Fish and Wildlife Environmental Water Conner Everts Caucus E. Robert Wright & Sierra Club California Kyle Jones Planning & Jonas Minton Conservation League Natural Resources Defense Council, The Bay Institute, and Defenders of Wildlife Email Address of Authorized Representative/ Attorney Steve Rothert [email protected] 6 Table 2 - Interested Persons (Persons Intending to Make Policy Statements Only) PARTIES IN TABLE 1 ARE NOT REQUIRED TO SERVE THE FOLLOWING INTERESTED PERSONS WITH WRITTEN TESTIMONY, EXHIBITS, AND OTHER DOCUMENTS Interested Persons Participating in Part I (May also be Interested Persons in Part II) Interested Person Castaic Lake Water Agency Central Valley Clean Water Association Coachella Valley Water District Desert Water Agency Kern County Water Agency Metropolitan Water District of Southern California Mojave Water Agency North State Water Alliance Partnership for Sound Science in Environmental Policy Authorized Representative/ Attorney Authorized Representative's Affiliation Matthew Stone [email protected] Debbie Webster [email protected] Robert C Cheng [email protected] [email protected] [email protected], [email protected] Mark Krause Curtis Creel Rebecca Sheehan Kirby Brill David J. Guy, President Craig S.J. Johns, Program Manager, PSSEP [email protected] [email protected] Northern California Water Association [email protected] Paul Gosselin [email protected] Jeff Davis [email protected] [email protected] Erick Soderlund [email protected] Terri Crain Tulare Lake Basin Water Storage District Mark Gilkey U.S. EPA Region 9 Zone 7 Water Agency City of Chico, The Tomas Torres J. Duerig Erik Gustafson [email protected] [email protected] San Bernardino Valley Douglas Headrick Municipal Water District Paul Gosselin, Butte County Department of Water and Resource Conservation San Gorgonio Pass Water Agency Santa Clara Valley Water District Terri Crain Email Address of Authorized Representative/ Attorney [email protected] torres. [email protected] [email protected] [email protected] 7 Rural County Representatives of California Kathy Mannion SEMILLAS (Stockton Educational Movement in language Literacy and Scholarship) Motecuzoma Sanchez [email protected] [email protected] Interested Persons Participating in Part II Only Interested Person Authorized Representative/ Attorney African American Brandle OwusuChamber of Commerce Spencer of San Joaquin County Asian Pacific SelfDevelopment and Residential Association Assemblymember Susan Eggman Braceros del Delta Cafe Coop California Striped Bass Association California Student Sustainability Coalition Catholic Charities, Diocese of Stockton Central Valley Asian Chamber Earth law Center Frank l Ruhstaller Golden Gate Salmon Assoc Authorized Representative's Affiliation Email Address of Authorized Representative/ Attorney African American Chamber of Commerce of San Joaquin County [email protected] Hengsothea Ung [email protected] Gustavo Medina [email protected] Luis Magalia Esperanza Vielma [email protected] [email protected] Jim Cox [email protected] Ryan Camero [email protected] Katelyn Roedner Sutter [email protected] Cynthia lau [email protected] linda Sheehan Frankl Ruhstaller [email protected] [email protected] John McManus [email protected] Greater Stockton Douglas W. Wilhoit, Chamber of Commerce Jr. Joan Buchanan [email protected] Joan Buchanan [email protected] lao Family Community GerVang Empowerment Lower Sherman Island Duck Hunters Association Michael Frost National Marine Fisheries Service Rogene Reynolds [email protected] Roger Mammon [email protected] Michael Frost [email protected] Ryan Wulff [email protected] Rogene Reynolds [email protected] 8 Ronald Forbes, Delta F!y_ Fishers San Francisco Baykeeper Senator Cathleen Galgiani Social Media Moms Stockton Downtown Comeback Club Stockton Vegan & V~etarians Visit Stockton Ronald Forbes [email protected] George Torgun [email protected] Senator Cathleen Galgiani and Staff Trent Hager & Marian Norris Martha Vielma [email protected]; [email protected]; [email protected] [email protected] Karl E Nate Knodt [email protected] Jennifer Patterson [email protected] [email protected] WesRhea 9