[env-trinity] Is Westlands Attempting to Stop Trinity Restoration?

Fri Mar 31 13:21:00 PST 2006

March 27, 2006

VIA FACSIMILE:  530-623-5944

VIA EMAIL:  bgutermuth at mp.usbr.gov.

Brandt Gutermuth

P.O. Box 1300

Weaverville, CA 96093

Re:       Environmental Assessment / Environmental Impact Report for Canyon
Creek Suite of Rehabilitation Sites: Trinity River Run Mile 73 to 78

Dear Mr. Gutermuth:

                        This letter is written on behalf of the San Luis &
Delta-Mendota Water Authority (“Water Authority”) and Westlands Water
District (“Westlands”).  The Water Authority and Westlands appreciate this
opportunity to comment on the Environmental Assessment and Environmental
Impact Report for the Canyon Creek Suite of Rehabilitation Sites: Trinity
River Run Mile 73 to 78 (“Canyon Creek EA/EIR”).  Westlands is a California
water district with a contractual right to receive Central Valley Project
(“CVP”) water from the Bureau of Reclamation (“Reclamation”).  Westlands
provides water for the irrigation of approximately 600,000 acres on the west
side of the San Joaquin Valley in Fresno and Kings Counties. The Water
Authority consists of 32 water agencies providing service for agricultural,
urban, and wildlife management purposes in the western San Joaquin valley,
San Benito and Santa Clara counties.  The Authority’s members deliver water
to more than 1.3 million acres of the nation’s most productive farm lands,
1.7 million California residents, and over 150,000 acres of some of the
State’s most important wildlife refuges in the Pacific Flyway.

                        As federal water contractors for the Central Valley
Project (“CVP”), the Water Authority and Westlands have an interest in the
appropriate use of the Central Valley Project Improvement Act (“CVPIA”)
Restoration Fund.  While the Canyon Creek EA/EIR is silent as to the source
of the funding for this project, the budget for the Trinity River Mainstem
Fishery Restoration Program (“Restoration Program”) identifies the CVPIA as
a major source of funding for the program, including the mechanical
restoration component that is being implemented through the approval of the
Canyon Creek project.  http://www.trrp.net <http://www.trrp.net/> .  The
CVPIA section that addresses fishery restoration on the Trinity River is
CVPIA section 3406(b)(23).  That section, however, only addresses certain
identified activities to increase flows in the Trinity River, which are
activities that have been completed and never included physical restoration
activities. The CVPIA does not otherwise authorize the use of the
Restoration Fund for the Canyon Creek project or any other Trinity River
mechanical restoration project.

                        The Water Authority and Westlands have concerns
related to the California Environmental Quality Act (“CEQA”) compliance for
the Canyon Creek Suite of Rehabilitation Sites.  Trinity County served as
the CEQA lead agency for the final Trinity River Mainstem Fishery
Restoration Program Environmental Impact Statement / Environmental Impact
Report (“Restoration Program EIS/EIR”) in 2000.  The County of Trinity,
however, has never certified the Restoration Program EIS/EIR, or any other
CEQA compliance document for the Restoration Program.  The Canyon Creek
project is part of that larger program.  By proceeding with parts of the
program without completing the program level review, the state and local
agencies involved are piecemealing the CEQA review.  

CEQA applies to discretionary approvals of “projects” that may cause
significant adverse environmental impacts.  Pub. Res. Code § 21080(d).  CEQA
and its implementing regulatory Guidelines broadly define the term “project”
to mean “the whole of an action, which has the potential to result in either
a direct physical change in the environment, or a reasonably foreseeable
indirect physical change in the environment.”  14 Cal. Code Regs., §
15378(a) (emphasis added).  Thus, the term “project” is defined as the whole
activity to be carried out and “which may be subject to several
discretionary approvals by governmental agencies” but “does not mean each
separate governmental approval.”  14 Cal. Code Regs., § 15378(c).  Thus, the
North Coast Regional Water Quality Control Board (“Regional Board”), and the
other state and local agencies, may not narrow the scope of their
environmental impact analysis by defining the “project” in terms of small
sub-set of discretionary approvals, when the action approved is admittedly a
necessary part of a much larger “project” whose significant adverse
environmental impacts go far beyond those attributable to just the narrowly
defined action being approved.

                        The Regional Board, as the lead agency for the
Canyon Creek Suite of Restoration Projects, cannot justifiably take the
position that it may now proceed with project level implementation of the
Restoration Program because the Regional Board cannot change the decision
made in the program record of decision signed by the federal government in
2000.  Restoration Program EA/EIR p. 1-2.  The series of discretionary
approvals required to implement the Restoration Program trigger CEQA review,
and that is why an EIR was prepared for the entire program.  Trinity County
apparently believes that the program EIR is flawed and therefore did not
certify it.  Nonetheless, the Restoration Program is a project that must be
the subject of a single EIR before individual mechanical restoration
projects may proceed.

                        The Regional Board’s failure to properly identify
the project has led to improper “piecemealing” or “segmentation” of CEQA
compliance for the Restoration Program.  CEQA’s mandate requires that
environmental considerations not become submerged by chopping a large
project into many little ones – each with a minimal potential impact on the
environment.  See e.g., Bozung, et. al. v. Local Agency Formation Commission
of Ventura County, et. al. (1975) 13 Cal.3d. 263, 283-284.  See also, Cal.
Code of Regs., tit. 14, § 15165 (identical to predecessor section 15069 that
court in Bozung identified as codifying prohibition against piecemealing
CEQA review).  By drafting individual CEQA documents for the various
mechanical restoration projects, like the Canyon Creek EA/EIR, the Regional
Board is improperly piecemealing CEQA compliance because it is chopping the
impacts of the Restoration Program into small pieces that do not accurately
account for the impacts of the whole project.       

                        Finally, the Water Authority and Westlands question
the absence of  Department of Fish and Game (“DFG”) permitting for the
project.  Canyon Creek EA/EIR at p. 1-21.  While the federal government is
involved in this project, the Canyon Creek Suite of Rehabilitation Sites are
on private property.  The owners of the private lands included in this
project are subject to the authority of the DFG. The owners of the private
lands are also subject to the permitting requirements of Trinity County,
including Trinity County’s requirements for Floodplain Development Permits
and Encroachment Permits.  The Canyon Creek EA/EIR, therefore
inappropriately assumes that the only state permit that is required for the
Canyon Creek Suite of Projects is a section 401 permit from the Regional
Board.         

                        Thank you for the opportunity to comment.  Based on
the issues raised in these comments, the project should not go forward
without much broader CEQA review.

                                                            Very truly
yours,

KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD

A Professional Corporation

Becky D. Sheehan

BDS/ll

cc:  Thomas Birmingham

         Dan Nelson

         Diane Rathman

         Ara Azhderian

Byron Leydecker

Chair, Friends of Trinity River

Advisor, California Trout, Inc

PO Box 2327

Mill Valley, CA 94942-2327

415 383 4810 ph

415 383 9562 fx

bwl3 at comcast.net

bleydecker at stanfordalumni.org

http://www.fotr.org

http:www.caltrout.org 

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