Estuary Lawsuit Settled: A Brief History…..
A year has gone by since the Sonoma County Water Agency (SCWA) Board of Directors (County Supervisors) authorized the Final Environmental Impact Report (EIR) for the Estuary Project, a plan to construct a channel to keep salt water from intruding into the Estuary, but allow fresh water to seep out. The purpose was to raise fresh water levels in the estuary lagoon to benefit the growth of juvenile stealhead fish preparing for their ocean sojurn.
At that Board meeting in mid-August of 2011, representatives of National Marine Fisheries Service (NMFS) made threatening statements to the Board of Supervisors, to the effect that they would be in violation of the Endangered Species Act if they did not approve the project, implying something horrific would happen if they did not approve the EIR. They also strongly implied that anyone else trying to stop the project would also be in violation. Unfortunately, the Biological Opinion, requiring both the Estuary Project and Fish Flow Project (Low Flow) became federal law without any public environmental review; California Environmental Law is circumvented by the Endangered Species Act.
Nevertheless, RRWPC filed a lawsuit 30 days later challenging the decision, mainly because they had split the Estuary Project EIR off from the Fish Flow Project EIR, claiming that the lowering of flows was separate from the management of the Estuary. We challenged water quality and recreational impacts repeatedly, but were faced with the fact that the “Fish Flow Project EIR” would address many of the issues we felt were lacking in this first EIR and the new EIR would be released before our case made it to court.
Another factor we had to consider was that the record for the Estuary Project was about 70,000 pages and the costs involved with taking the case all the way were incalculable. We ultimately decided that our wisest strategy was to get the best settlement terms we could for the river, and while we compromised on a few things, we feel on the whole we obtained substantial help for the lower river that never would have occurred without the lawsuit. We wish to add that SCWA staff and County Counsel treated us very respectfully and a very fair negotiation process occurred. Our attorney, Michael Lozeau did an outstanding job representing RRWPC in this action.
Terms of Settlement Agreement….
While there were 23 terms listed in the agreement, we will highlight the ones we believe are of greatest interest to the public.
- 1. SCWA agreed to not close the Estuary Mouth artificially without reopening the environmental review process. As it stands now, the project won’t begin until the mouth has initially closed any time after May 15th and before October 15th.
2. SCWA will prepare an evaluation of the joint water quality impacts of the Estuary Project and the Fish Flow Project (low flow) in a special section of the Fish Flow Project EIR. Water quality areas to be addressed shall include pathogens/bacteria, nutrients, temperature, DO, and turbidity and will study the area of joint impacts. (The Estuary Project studied to Duncans Mills but for a limited nutrient study at Monte Rio Beach. Our agreement will have them study to at least Vacation Beach and perhaps even further upstream.)
3. Fish Flow Project will study whether a higher minimum flow at Hacienda (than 70 cfs) would meet the goals for steelhead habitat in the Estuary. They will look at least two regimes over that flow, such as 90 cubic feet per second (cfs), 100 cfs, or 110 cfs.
4. SCWA will model changes in storage at Lake Mendocino and Lake Sonoma resulting from lower minimum instream flows under various hydrologic scenarios.
5. For the next five years, SCWA will hold an annual community meeting in the lower river area each spring. The purpose of the meeting will be to provide an update of what was learned about fish and habitat the previous year, plans for the upcoming lagoon management season, and describe any proposed changes to the outlet channel adaptive management process. Members of the public will be allowed to ask questions and comment on plans. It will be conducted town hall style with a single audience.
6. SCWA shall implement a sediment monitoring program for the Estuary. (This is the most lengthy item and takes up four pages. It describes monitoring protocals to be used and toxins to be studied. This is the most important part of the agreement in our view, because it allows for sediment testing that has not been done before. About 34 metals and chemical compounds will be monitored and analyzed. At least three study series over a five year period will be conducted.
7. SCWA will fund $5000 for replacement of interpretive and warning signs on Goat Rock State Beach.
8. Existing contract with Stewards of the Coast and Redwoods will negotiate with SCWA to allow Seal Watch to use the same equipment. Also, Seal Watch will be given four new sets of binoculars.
9. SCWA will pay up to $25,000 to Department of Parks and Recreation to be used for a project promoting access to a state beach located in Sonoma County where opportunities for surfing exist. They will also designate an additional $10,000 over five years for maintenance. Possible projects include such things as bathroom repair or repaving parking areas.
10. RRWPC attorneys are to be reimbursed $48,380 for their time. This was considerably less than what was first requested.
11. Because this is a stipulated judgement, the court retains authority over the execution of this agreement. Brenda Adelman and SCWA staff will work together to assure that all terms of the agreement are met.
12. Finally, in exchange for all of these terms, RRWPC has agreed to not make comments to the California Coastal Commission or the North Coast Regional Board on SCWA permit applications to conduct this project. RRWPC is the only group bound by these terms. We still retain total freedom in commenting on the Estuary Project in relation to the Fish Flow Project, and also total freedom in commenting on the upcoming Fish Flow Project EIR.
RRWPC Board of Directors approved this agreement and feels strongly that it is a fair resolution of this matter and will have many benefits for the river and coast. It’s not all we wanted, but we believe it is fair. We hope you all agree. We welcome your comments at firstname.lastname@example.org