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HomeMy WebLinkAboutResponse from GCID regarding water transferJuly 11, 2 013 Mr. Bill Connelly, Chair Butte County Board of Supervisors Administration Center 2 5 County Center Drive, Suite 200 Oroville, California 95965 SUITE COUNTY ADIvIINISTRATION OROVILLE, CALIFORNIA F30ARD C3F DIRECTORS Donald R. Bransford, President Sandy Willard Denn, Vice President Peter D. i~night Jahn P. Sutton Bruce Rolen GENERAL MANAGER Thaddeus L. Benner, P.E. Subject: Butte County Comment Letter on the GCID Water Transfer Dear Supervisor Connelly: Glenn Colusa Irrigation District (GCID) received your June 11 letter regarding the GCID Proposed Negative Declaration an the 2013 Water Transfer to the San Luis & Delta Mendota Water Authority, and has considered the comments and issues raised as well as your underlying concerns, GCID's response is comprised of two parts: fiarst, specific comments about the transfer and. second, the broader concern of maintaining the Sacramento Valley's sustainability. Transfer Specific Comment ~. Your Ietter stated that the Negative Declaration did nat adequately analyze cumulative impacts associated with the groundwater pumping component of the Project. However, your letter did not provide any specific criticism of the cumulative impacts analysis contained in the Negative Declaration or offer any new evidence that GCID should consider. Cumulative impacts associated with the groundwater pumping aspect of the Project were thoroughly addressed in the Negative Declaration and supported by the analysis provided by Peter Lawson, a professional hydrogeologist The Project will have no significant environmental impact. A copy of Mr. Lawson's analysis is available on the District's website at ~€~v. cit. 2. Page 2 of your letter recommended that GCID add well 21NO1W2~B001 to its monitoring network for this Project. We accept your recommendation and will monitox this well as part of our monitoring network and, further, will provide reports to Paul Gasselin, director of Butte County Department of Water and Resource Conservation. ~yj ~;-~~ j l`.~J P.O. Bvx 15D C f~~ 344 East Laurel Street Willows, CA 95988 Tel: 530.934.888'! Fax: 530.934.3287 ~ www.gcid.net Mr. Bill Connelly July 1 ~, 2013 Page 2 3. Page 2 of your letter also requested that wells 21N®IW23J~01 and 21NO1W2413001 be monitored; however, the modeling confirms that these wells are beyond the impact zones for the Project. This fact can be substantiated by reference to Figures 4-la through 4-I c of the Negative Declaration, as well as by lvlr. Lawson's report. Nevertheless, if there are unanticipated impacts to wells from the Project, GCID will fulfill its connnitments as outlined in the lvlitigation Plan, including evaluation of the impacts and, based on the results of the evaluation, take steps such as reductions in pumping, temporary cessation of pumping, or permanent cessation of pumping. 4. As you know, Butte County completed its Tuscan Aquifer Iravesi~gai~ion and some of the information included in that report was based on data from GCID's groundwater wells being utilized fox this transfer. To better understand oux regional groundwater system, GCID is willing to provide information and data from pumping these wells to meet some of the recommended future data needs identified on Page ES-5 & 6 of the Tuscan Aqui fer InvesCigatfon Report. Sacramento Valle~Sustainability Although specific comments about this transfer were raised in your June 11 letter, it seems the underlying concern is that this transfer will somehow lead to future precedents and potentially risk the sustainability of this region, First, let me reassure you that GC1D's Board and staff are committed to protecting the water rights and area- of-origin assurances for both our surface water and groundwater. GCID has been a leader in state and federal arenas to ensure that this region will remain sustainable from a water supply standpoint, and for our environment and economy. We agree that this region's sustainability is of utmost importance; how to best approach the question of maintaining this region's sustainability is the issue that confronts us. Your concern about water transfers is legitimate and GCID would never consider any transfer that would put this region at risk, which is why GCID only considered a very small groundwater substitution transfer. In fact, our concerns about the dependence on water transfers from this region were voiced %n a letter that GCID and other water agencies, in this region and your county, helped author. The letter was sent by the Northern California Water Association to the Department of Water resources, and is enclosed for your reference. However, a focus on water transfers fails to address the other major threats that we all face in this region including the State Water resources Control Board Plow Criteria Report that proposes 75% of the Sacramento River watershed flows be allowed to flow out to the ocean; the Bay Delta Conservation Plan, and the Delta Stewardship Council's Delta Plan, all of which would result in more than 1 million acre-feet leaving the Sacramento Valley on an annual basis. These impacts would lead to significant fallowing and groundwater pumping in the Sacramento Valley that would result in far greater impacts than any water transfers. In fact, NG® groups in_ Butte County have Mr. Bill Connelly July 11, 20f 3 Page 3 supported some of the above efforts, which would have significant impacts on Butte County as well. While same concern may exist about water transfers, GC1D will continue to engage at the local, regional, state and federal level to ensure that the shave regulatory eff®rts will have xz~~~nal impacts to our region. We are also supporting new storage, such as Sites Reservoir, which could provide new upstream surface water supplies to lessen the derriands on the region's gr~aunclwater system.. GCID would appreciate Butte County's assistance and coordination in these efforts to develop a united anessage and plan for the regulators, politicians, and administrations to protect our region. We look forward to working on such an effort with you, other Counties, and water agencies. Sincerely, Donald Sransford, ~ sident Glenn-Colusa Irrigation District Board of Directors Enclosure cc: Butte County Board of Supervisors Paul Gosselin, Butte County Vickie Newlin, Butte County Glenn County Board of Supervisors Lisa Hunter, Glenn County David Guy, Nothern California Water Association Ted Trimble, Western Canal Water District Les Heringer, M&T Ranch To advance the economic, social and environmental sustainability of Northern California by enhancing and preserving the water rights, supplies and water quality, April 15, 2013 Mr. Gary Bardini Deputy Director Department of Water Resources P.O. Box 94283& Sacramento, CA 94236 Dear Mr. Bardini: To follow our recent discussions, we believe there is an opportunity for the Department of Water Resources (Department), working with Sacramento Valley water suppliers, to facilitate the Department's role in water transfers. We particularly encourage the Department, in tandem with the Bureau of Reclamation (Reclamation), to mare clearly define its policies and procedures to ensure that the Department serves a more valuable and objective role in implementing the Legislature's policy on sound water transfers.' As you know, the Sacramento Valley--through its water resources- joins together aworld-renowned mosaic of natural abundance: productive farmlands, wildlife refuges and managed wetlands, cities and rural communities, and meandering rivers that support and feed fisheries and natural habitats. First and foremost, we are committed to advancing the economic, social and environmental sustainability of the Sacramento Valley by the enhancement and preservation of water rights, water supplies and water quality for this rich mosaic. After meeting these primary objectives, we also believe that the transfer of water is one flexible way to ensure that California's most precious resource can be put to reasonable and beneficial use to the maximum degree practicable in other areas of the State. in this context, we provide the following thoughts on the Department's role in facilitating water transfers. Manage Expectations. One of the most important roles for the Department is to manage expectations with respect to water transfers in California so that policy makers and the public have a realistic understanding of how water transfers fit into the statewide water portfolio. From our perspective, we are concerned that there is a general perception and assumption in the state policy arena that large amounts of 'See the attachment to this letter for many of the policies on water transfers. Gary Bardini April 15, 2013 Fage 2 water are always available for transfer from the Sacramento Valley, yet this is simply not the case. This is particularly a problem during drought and critical water years when water is needed for various beneficial uses within the Sacramento Valley with little remaining for transfer to other parts of the state. This limitation is even more exacerbated with the increasing regulatory pressures surrounding the Bay-Delta and the implementation of the 2009 legislative package. This dynamic, coupled with the transfer requirements in the Department's "Draft Technical Information for Preparing Water Transfer Proposals" {"White Papers"}, truly Iimit the amount of transfer water available. The Department should provide realistic transfer criteria, as well as expectations, in the next California Water Flan update, the Bay-Delta Conservation Plan {BDCP}, any water transfer briefing documents (including the White Papers), and the next revision to the California Drought Contingency Plan. Third Party Users of Water and the No Injury Rule. A primary purpose of the White Papers is to ensure that third party users are not injured during a water transfer. This protection extends to other water users in our region, the environment, and downstream water users, which includes the State Water Project and Central Valley Project. However, the White Papers have unfortunately been viewed by the Department as its requirements to approve transfers and allow for the usage of state wheeling facilities. The Department has lost its neutrality and the ability to be an objective party to transfers, and, in reality, should be demonstrating to the public, other water users, and enviu-onxnental interests that these water transfers protect other waters users through compliance with the White Papers. As an example, the Department should be able to portray to Iocal communities how water transfers function and how they provide a flexible mechanism to balance mismatches between supplies and demands in different parts of the state, while at the same time assuring the public that other water users are being protected. The Department should also be willing and ready to defend local water suppliers against collateral outcry about potential impacts. On a related issue, the Department staff has stated that the 2013 version of the White Papers was substantially amended to conform to the paper prepared by David Anderson, DWR Staff Counsel IV, in July 20].2 entitled Water Transfer Approval: Assuring Responsible Transfers. According to these documents, it is the Department's position that legal injury now encompasses ~ flow reduction caused by the water transfer no matter how insignificant. Even theoretical and unquantifiable reductions in net downstream flaw-such as that theoretically resulting from drought tolerant weed growth from remnant soil moisture in idled fields-is now considered by the Department to constitute legal injury. This expansive definition of legal injury acts as an impediment to water transfers, unreasonably penalizes the participating sellers and buyers, and is not supported by applicable law. Not all injury under the no-injury rule is prohibited; junior water right holders maybe required to endure modest or de-minimus injury to maximize the beneficial uses of water or to facilitate a water transfer. Only "unreasonable", "substantial" or "significant" injuries to other legal users of water offend the no injury rule.2 2 See, e.g., City of Lodi v. EBMUD {1936) 7 Ca1.2d 316, 338-340 [`unreasonably and adversely affecting" prior appropriator's vested right]; Rancho Santa Margarita v. Uail {1938) 11 Ca1.2d 501, 558-559 [same]; .Peabody v. Gary Bardini April 15, 2013 Page 3 Water suppliers in the Sacramento Valley are committed to avoiding legitimate legal injury to other legal users of the water and support the state and federal projects agencies' efforts to avoid such injury. As part of their obligation to facilitate water transfers, the agencies operating the projects should accurately define legal injury so as not to impede water transfers or penalize the transfer participants. Template Agreement and Agpreved Wheeling Capacity. Tn December 2011, counsel for Sacramento Valley water suppliers provided the Department with a draft two-party template agreement that would help streamline the contractual process far the Sacramento Valley, reduce unnecessary transaction costs, and provide a sound basis for the Department to facilitate water transfers. More than a year elapsed, yet Department staff did not provide any comments on the proposed draft template agreement. During the February 25, 2013 meeting with Department staff to review the revised draft White Papers, Department staff for the first time stated that they would not use the draft two-party template agreement, but instead would continue to use the three-party conveyance and storage agreements the Department used in 201 I . Unfortunately, this approach ignores the numerous substantive improvements proposed for the template agreement that are not dependent upon whether the format is a two-party or three-party agreement. As such, we encourage the Department to work with us to finalize a mutually agreeable draft template agreement for future transfers. We believe this will assist to provide needed additional certainty and efficiency in the water transfer process. Along with the agreement, the Department should be granting access to excess conveyance capacity under state law if the transfer proponents meet the requirements of the White Papers. Instead, what we typically find is a multi-layer review and approval process through the Department's various processes including the Water Transfer Office, State Water Project Analysis Office {SWFAO), and the legal division, all which take an incredible amount of time, money and effort to comply with each of their respective approval processes. With the critical timing required for transfers, this process just doesn't work. Empower Leadership. Lastly, yet most important, the key ko successful water transfers is leadership from the Department's highest level. High-level leadership and development of a culture for successful water transfers in compliance with the Department's legal duties are critical to implement the improvements described above. Leadership from the Department's senior level would provide the context for staff to review water transfers in accordance with state policies that encourage transfers to meet the need to maximize beneficial uses of water in California. Such leadership also would ensure that consistent staff would review all water transfers in a more stream-lined and coordinated manner. Importantly, leadership would also ensure that the Department does not serve as an obstacle to sound Vallejo (1435} 2 Ca1.2d 351, 376-377 [interference that would cause "substantial damage" is actionable and the "substantial enjoyment' of the paramount right is the protected interest]; San Bernardino v. Riverside (1921) 186 Cal. 7, 15 ["unreasonable injur}~' is prohibited]; Water Code § 1727, subd. (h){I) [State Water Kesources Control Board shall approve temporary changes unless it finds "significant" injury to any Iegal user of the water]; Water Code § 1736 [long-term transfers should not result in "substantial injury to any legal user of water..."]. Gary Bardini April 15, 20 i 3 Page 4 water transfers that are carefully negotiated by water suppliers in the state. We therefore urge the Department to designate and empower a Deputy Director to serve in this important role. .Another important function of leadership is to recognize the importance of timing with respect to water transfers. The timing for water transfers will always be challenging, as the process has to align with the state's hydrologic conditions and the various issues that need to be planned for and addressed by both the seller and buyer. In the Sacra:ruento Valley, transfers need to be coordinated with Boards, landowners and others, which require advance planning. This, in turn, requires the Department to plan ahead and have its reviewers poised to make decisions and communicate with the parties early in the year so the various parties can make their water and agronomic decisions in a logical and timely manner. As such, we encourage the Department to be more cognizant of the essence of timing in planning and executing water transfers and to more fiilly develop a rigorous schedule to review and approve the various elements necessary for a transfer. We appreciate your consideration of our concerns and recommendations. We also have additional technical issues to raise with you and your staff and are hopeful this letter begins a more constructive dialogue to make water transfers work in the Sacramento Valley. Sincerely yours, David J. Guy President cc: Secretary John Laird Deputy Secretary Jerry Meral Director Mark Cowin Regional Director David Murillo Deputy Regional Director Pablo Arroyave Brad Hubbard Federal and State Water Contractors State Policies Enconrage Sound Water Transfers. The Department has been charged with facilitating sound water transfers by the California Legislature and executive branch policy. Since the 1976-77 drought, every California Governor has recognized the importance of water transfers in California to help meet differences in water supply and demand. In 19$0, the Legislature enacted Water Code section 109, which establishes state policy to facilitate transfers. Subdivision {a) of Section 109 provides: The Legislature hereby finds and declares that the growing water needs of the state require the use of water in an efficient manner and that the efficient use of water requires certainty in the definition of property rights to the use of water and transferability of such rights. It is hereby to be the established policy of this state to facilitate the voluntary transfer of water and water rights where consistent with the public welfare of the place of export and the place of import. More specifically, the Legislature in Water Code section 109(b) directs "the Department of Water Resources, the State Water Resources Control Board and all other appropriate state agencies to encourage voluntary transfers of water and water rights, including, but not limited to, providing technical assistance to persons to identify and implement water conservation measures which will make additional water available for transfer." Water Code section 109 is not the Legislature's sole expression of its policy that state agencies should actively facilitate water transfers. In 1986, the Legislature enacted the Costa-Isenberg Water Transfer Act, Water Code sections 470 through 484, which directs the Department to "establish an on-going program to facilitate the voluntary exchange or transfer of water and implement the various state laws that pertain to water transfers." In addition to this general direction, the Act directs the Department to take specific actions to facilitate transfers. Likewise, the "Wheeling Statutes," Water Code sections 1810 through 1814, require that the Department and other public agencies that have excess capacity in their conveyance facilities to facilitate proposed transfers by making that capacity available to sellers, subject to a reasonable determination of available capacity, the fair cast of its use, and the absence of injury to legal users of water or unreasonable effects on fish, wildlife, other instream beneficial uses, or the economy or environment of the county from which the water is being transferred. Department documents and policies are replete with references to these policies and the importance of water transfers. During the most recent drought, the Governor issued Executive Orders directing the Department to implement water transfers. In Washington D.C., Senator Feinstein secured Legislation that similarly directed the Reclamation and the Department's other federal partners to implement water transfers. Yet, despite the clear policy direction at both the state and federal level, implementing water transfers has become increasingly difficult in California because the Department and its federal partners' policies are stifling--not facilitating-sound water transfers.