Groups shun lawsuit despite own Hetch Hetchy concerns
SAN FRANCISCO — Environmentalists mostly dismiss as politically motivated an advocacy group’s lawsuit seeking to force the National Park Service to comply with environmental laws in its regulation of the Hetch Hetchy reservoir, this city’s primary water source located in Yosemite National Park.
The plaintiffs, including a group whose founder has ties to the Westlands Water District, claim in a federal suit that the more than 90-year-old water project has been allowed to skirt environmental laws while farm irrigation in the Central Valley has been drastically reduced because of imperiled fish.
The suit by the Fresno-based Center for Environmental Science, Accuracy and Reliability (CESAR) and Los Banos, Calif., farmer Jean Sagouspe was filed Aug. 18 in U.S. District Court in Washington, D.C. It names as defendants the National Park Service, U.S. Interior Secretary Sally Jewell and two other Department of the Interior officials.
The complaint alleges the park service failed to consult with the U.S. Fish and Wildlife Service in annually approving in-stream flows for San Francisco’s Hetch Hetchy operations or submit proper documents as mandated by the Endangered Species Act.
Further, the suit claims the project itself violates the ESA by degrading fish habitat and withholding water from the beleaguered Sacramento-San Joaquin River Delta, putting it at more risk of saltwater intrusion.
“Our point of view has long been at CESAR that the environmental laws need to be enforced evenly,” said Craig Manson, the group’s executive director. “To the extent that rural areas bear the brunt of water shortages, urban areas ought to do the same. That’s one of the things that we foresee as an outcome here.”
But green groups themselves have no love for the O’Shaughnessy Dam, which holds back water in the Tuolumne River to be piped to an estimated 2.5 million San Francisco Bay area customers.
In fact, the Center for Biological Diversity has considered mounting its own legal challenge of the project but concluded such a suit was unlikely to succeed, executive director Kieran Suckling said.
“The legal difficulty is that the dam was built in 1915, and that preceded all these environmental laws,” Suckling told the Capital Press. “We also looked at the possibility of such a case, but the difficulty there is that can only work if the agency has discretion in its plan.
“I don’t see it working as a legal case, which is why we didn’t try to bring that case ourselves,” he said.
Restore Hetch Hetchy, whose 2012 San Francisco ballot proposal to consider draining the reservoir and returning the valley to its natural state was unsuccessful, is still pondering its own legal and legislative options, policy director Spreck Rosekrans said.
“They (plaintiffs) have a point that the Endangered Species Act has not been uniformly applied,” Rosekrans said, adding that “they’re taking on San Francisco because San Francisco has probably the most environmentally destructive project anywhere … San Francisco got this reservoir in an iconic valley in a national park.”
National Park Service spokesman Jeffrey Olson said the agency doesn’t comment on pending litigation. The federal government has 60 days to file its answer.
San Francisco is not named in the suit. Tyrone Jue, spokesman for the city’s utility commission, contends the water diverted by the Hetch Hetchy project accounts for less than 1 percent of the total Delta flow while supplying water for 7 percent of the state’s population.
Further, the city does consult with Fish and Wildlife as part of an Upper Tuolumne River water users’ group and has modified its flow releases from O’Shaughnessy to mimic the natural hydrology of the river, Jue said.
“We’ve had to make reductions in our use, too,” because of the state’s historic drought, he said. The city’s customers’ use an average of 83 gallons of water a day – about half the state average, he said.
A former Interior official under then-President George W. Bush, Manson is general counsel for Westlands, which provides water to more than 1,000 square miles of farmland in western Fresno and Kings counties. The tie has led Suckling and others to accuse Manson of pushing for more water for Westlands instead of fish.
But Manson said he founded CESAR before going to work for Westlands and that the water district has no role in the suit.
The notion that state and federal agencies employ a double-standard when it comes to rural and urban water use has cropped up this summer as many Central Valley farms have gone without water. For instance, while the worst urban water-wasters face a $500 state fine, water rights holders who defy curtailment orders can be fined $1,000 a day and $2,500 per acre-foot of water illegally diverted.
“California is a tale of two cities,” Aubrey Bettencourt, executive director of the California Water Alliance, told the Washington Times. “If you added all the agrarian counties of California together in terms of registered voters, that’s not even enough to offset either San Francisco or Los Angeles. There are not enough votes.”
However, agriculture accounted for 77 percent of water diverted from California rivers and streams from 1998 to 2010 while urban uses, including residential, commercial and industrial, accounted for only 20 percent, according to the state Department of Water Resources.
As for the Hetch Hetchy lawsuit, the Center for Biological Diversity’s Suckling notes that CESAR doesn’t have a history of success in its legal challenges.
“They didn’t file this to win it,” he said. “This case was filed to make a political statement … Frankly they’re abusing the court system to try to make a political point. They’re using our highly overloaded legal system the wrong way.”
Restore Hetch Hetchy’s Rosekrans believes the suit’s true aim is to generate urban support for reforming the Endangered Species Act. But he’s not as quick to label it a loser.
“This is an interesting test of the legal system, and I don’t think anybody really knows,” he said. “It’s for the lawyers and the courts to decide whether the Endangered Species Act trumps some of these old projects that have been around for 100 years or so.”