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HomeMy WebLinkAboutMINUTES - 12121995 - D10 v D. 10 BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on December 12, 1995 by the following vote: AYES: Supervisors Rogers, Smith, DeSaulnier, Torlakson and Bishop NOES: None ABSENT: None ABSTAIN: None SUBJECT: San Luis Drain Grassland Bypass Project On this date, the Board of Supervisors considered further the San Luis Drain Grassland Bypass Project and comments from the Community Development Director and County Counsel . Victor Westman, County Counsel, advised the Board that he had presented a written report to the Clerk of the Board relative to the progress on this issue to date. Supervisor Torlakson moved the report from County Counsel and the authorization of up to $30, 000 from the Water Agency budget for the County Counsel' s office and the Water Agency to pursue retaining consultants and/or legal strategy and authorization for the Chair to send letters to neighboring counties urging them to join Contra Costa County and outlining the urgency of the issue with the Grasslands Bypass and selenium pollution problem. The following person presented comments on the issue : Al McNabney, 1161 Leisure Lane #7, Walnut Creek, representing Mt . Diablo Audubon Society, in opposition to the San Luis Drain. IT IS BY THE BOARD ORDERED that the report from County Counsel on the San Luis Drain Grasslands Bypass- Project is ACCEPTED; up to $30, 000 is AUTHORIZED from the Water Agency budget, for County Counsel and the Water Agency to pursue retaining consultants and/or legal strategy; and the Chair, Board of Supervisors, is AUTHORIZED to send letters to Alameda, Solano, Sacramento and Yolo Counties urging them to join Contra Costa County and outlining the urgency of the issue with the Grasslands Bypass and selenium pollution problem. I hereby certify that this Is a true and correct copy of an action taken and entered on the minutes of the Board of SIsors on t date shown. ATTESTED: CC : County Counsel PHIL BATCHELOR,Clerk of ofe Board Community Development Department .Perviso and coup d Inistrator Roberta Goulart By Deouty N COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTINEZ, CALIFORNIA Dace: December 12 , 1995 To: Board of Supervisors From: Victor J . Westman, County Counsel By: Diana J. Silver, Deputy County unsel Re: Grasslands Bypass Project We are attaching our December 11 , 1995 memo to the Board, a letter from John Herrick on behalf of South Delta Water Agency received December 8 , 1995 and a memo from county water agency staff received December 11 , 1995 . Under the county' s better government ordinance, staff material is to be made available to the public 96 hours before it is considered by the Board unless the time limits are waived by the Board by a three-fourths vote (C .C .C . Ord . Code § 25-2 . 206 ) . As you will note from our memo, we were in the process of obtaining this material until December 11 , 1995 . For this reason, we . ask the Board to waive. the time requirements under the better government ordinance by a w four-fifths vote so that this material may be considered by the Board and made available to interested members of the public at the December 12 , 1995 Board meeting . DJS : fjb Attachments ib10 a:\grassl.nd.mem COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTINEZ, CALIFORNIA Date: December 11 , 1995 To: Board of Supervisors From: Victor J. Westman, County Counsel By: Diana J. Silver, Deputy County 5sel Re: Grassland Bypass Project (Short term drain use, San Luis Drain) On November 28 , 1995 , the Board of Supervisors directed staff to further identify legal and administrative options and to develop estimates of costs for initiating a legal or other action concerning the implementation of the use agreement for the above-referenced project . In addition, the Board asked staff to identify potential legal counsel who might be available as experts in the water litigation area . Accordingly, we have taken the following steps : 1 . Other Water Agencies . At the suggestion of Supervisor Torlakson, we contacted John Herrick, legal counsel for the South Delta Water Agency. As indicated in his attached letter, he and the Central Delta Water Agency (counsel, Dante Nomellini ) are currently meeting with the Bureau of Reclamation ( "Bureau" ) in an attempt to resolve their concerns regarding the anticipated increased salinity in a portion of the San Luis Drain which may result from implementation of the use agreement . If they are not successful in resolving their concerns with the Bureau, they may file an action in federal court in mid-January, 1996 . They anticipate that if a law suit were filed, the Central Delta Water Agency and possibly, San Joaquin County may join as parties . Contra Costa County could also join in this litigation if this county shares the same concerns over salinity levels . Mr. Herrick indicated that they are not record gathering now because the South Delta Water Agency has been attending hearings and compiling materials with regard to the salinity issue for several years and believes it has enough documentation and technical analyses in its files to allow it to formulate adequate legal pleadings without first having the official administrative record completed. 2 . Special Expert Legal Counsel . We have contacted Kressy Nakagawa, who has represented the county water agency in. the past. We have asked him to estimate costs for obtaining the record, Board of Supervisors 2 December 11 , 1995 obtaining declarations from technical experts and filing a complaint and motion for a preliminary injunction to stop the implementation of the use agreement . We have made a similar request of Larry Silver, the attorney for the California Environmental Law Project, (C . E.L.P. ) , which has been retained to represent the county and the county water agency in litigation concerning long term use of the San Luis Drain. We have also asked him for a status report of that litigation and for his comments on the cost and possibility and likelihood of success if a second action were filed to stop implementation of the use agreement for the Grasslands Bypass Project . As of this date, we have not received those estimates . If we receive any written reports from these attorneys, we would propose to submit them to the Board on the December 12 , 1995 . 3 . Contra Costa County Water Agency Staff . This office is informed by county water agency staff that they have made an informal request to the Bureau for a copy of the administrative record of the relevant proceedings concerning this project . When the record will be provided has not been indicated. We note that, unlike the South Delta Water Agency, our county water agency apparently has no materials and documentation other than the environmental assessment, FONSI and their comments on the use agreement, submitted in October, 1995 . 4 . One Record Preparation Cost Estimate. On November 28 , 1995, a representative for Patrick J . Porgans addressed the Board concerning this issue and represented to the Board that his organization was prepared to assemble and review data relative to the record, to perform an evaluation of possible legal courses of action, to identify and assess impacts of the Grassland Bypass Project and to perform other record gathering and evaluation services for costs not to exceed $30 , 000 . This $30, 000 does not include the additional expense for required attorney time, fees or costs . Possible Actions . The Board may wish to consider directing that county water agency staff contact the Bureau to attempt to informally resolve whatever specified concerns the Board may have concerning chemical discharges expected to result from implementation of the use agreement . It is not clear that such concerns may be addressed adequately at an administrative level but such action should be considered . If , however, any Board-directed attempts to negotiate with the Bureau are not successful, the water agency and the county would still have the option of filing an action, either on its own or with the South Delta Water Agency. By January, if not received by the Board' s December 12 consideration of this matter, the estimates noted in 2 above should be available . DJS/bmw djs-6\a:\Grass1an.doc SOUTH DELTA WATER AGENCY 2509 WEST MARCH LANE, SUITE 200 POST OFFICE BOX 70383 STOCKTON, CALIFORNIA 95267 TELEPHONE(209)474-2509 FAX(209) 474-9701 Directors: Counsel: Jerry Robinson, Chairman Brewer, Patridge, Peter Alvarez,Vice-Chairman Genomes&Herrick Alex Hildebrand, Secretary Engineer: Robert K Ferguson Gerald T. Orlob Natalino Bacchetti December 6, 1995 Via Fax (510) 646-1078 and Regular MaLl Diana Silver, Esq. County Counsel Administration Building P.O. Box 69 651 Pine Street, 9th Floor Martinez, CA 94553 Re: Grassland Bypass Proiect Dear Ms. Silver: This letter is in response to our telephone conversation today. Our Agency has previously raised with the USBR various issues regarding the Grassland's Bypass Project, prior to that Agency issuing its FONSI. Our major concern was that the Project as contemplated will result in less drainage of a higher concentration of salinity entering the San Joaquin River. Consequently, the Bureau will be less likely to meet the Vernalis salinity standard of 0.7/1.0 EC. Previously, the Bureau consistently failed to meet the 500 TDS standard. Higher salinity seriously affects agricultural diverters in our area especially during summer. Notwithstanding our efforts, a final Supplemental Environmental Assessment and FONSI were issued on the Project on November 3, 1995. Neither of these documents addresses the salinity issue we raised. However, the Bureau requested we meet with them on November 20, 1995 to discuss our concerns. This meeting was scheduled as a result of a letter by me in which I again pointed out the failings of the environmental documents. At this meeting Mr. Michael Delamore of the Bureau and Mr. Joe Karkoski of the Central Valley Regional . Board quickly understood the point we were making and agreed the Project could cause the effects we were predicting. The first Supplemental Environmental Assessment clearly shows this impact and the subsequent changes in the Project and those caused by the CVPIA further exacerbate these delineated effects. Diana Silver, Esq. December 6, 1995 Page two Mr. Delamore agreed he would try to get back to us within a month with some sort of proposals that would hopefully address our concerns. We look forward to his proposal but cautioned him that if our concerns were not adequately addressed, we expected to be forced to file a NEPA action on this matter. At this time we do not expect to file any such action before January. As of today, I have not heard back from Mr. Delamore. From discussions with other counsel of interested parties, I would anticipate at least two other San Joaquin County Agencies or Entities would want to join in any such action. Once a suit is filed, the Bureau would then prepare the Record which would consist of all document studies, correspondence, etc. , developed and submitted on the matter. This Record would then be the factual basis for legal arguments under NEPA. Prior to bringing such an action, I will discuss the matter further with you and other parties who may wish to join in. As I have stated, the salinity levels are our main concern. Other issues would probably be involved and it could be anticipated that some of the plaintiffs may have conflicting goals and interests in this matter. However, if such were the case we could still jointly participate in bringing the action and share costs of such things as the preparation of the Record. Please feel free to contact me if you have any questions. Very truly yours, BREWER, PATRIDGE, GERLOMES & HERRICK Attorneys At Law By yr HN ERRICK JH/ce cc: Dante Nomellini Karna Harrigfeld Jeanne Zolezzi Virginia Cahill Alex Hildebrand DEC-]1-95 MON 05;39 PM CCWD WATER RESOURCES FAX N0, 510 674 8142 P. 02 CONTRA COSTA WATER DISTRICT 1331 Concord Avenue P.O.Box H2O Concord,CA 94524 (510)688-8000 FAX(510)688-8122 Directors December 11, 1995 Joseph L.Campbeii President Elizabeth R.Anew :Vice President Bette Boatmun supervisor Gayle Bishop, Chair Donald P.Freitas Contra Costa County Board of Supervisors James Pretti County Administration Building Walter J.Bishop 651 Pine Street, Room 106 General Manager Martinez, CA 94553-1293 Subject: Grasslands Project, Letter of December S, 1995 Dear Supervisor Bishop: Thank you for your letter of December 5 on the San Luis Drain-Grasslands Project. As you know, the Contra Costa Water District ("District") has long been concerned about water quality in the San Joaquin River and the Bay-Delta, and has fought, and continues to fight, vigorously for improved water quality conditions in the Bay-Delta and its tributaries. The District has joined with Contra Costa County and others to intervene in a lawsuit which could result in a consideration, once again, of an extension of the San_Luis Drain to the Delta. The District and the County are working together to prevent any consideration of that project, and to ensure that the outcome of the lawsuit is a swift improvement in water quality through a reduction in the discharge of pollutants, including salts, to the San Joaquin River, The District has closely followed the Grasslands Project since last summer and has provided written comments to the United States Bureau of Reclamation and the Central Valley Regional Water Quality Control Board (RWQCB) on a number of occasions. Copies of our correspondence are attached. The District shares your view that it is preferable to have a plan that guarantees improvements to downstream water quality through a reduction in pollutant discharges with meaningful enforcement mechanisms. The drainage in question has for a long time been discharged to the San Joaquin River, via the wetlands, without controls or adequate enforcement standards, a situation that is and has been unacceptable. One of regulatory proposals before the RWQCB would, if successfully implemented, result in a reduction in pollutant discharges to the San Joaquin River and would put current agricultural drainers under the supervision of the Regional Board for the first time. DEC-11-95 MON 05:40 PM COWD WATER RESOURCES FAX NO, 510 674 8142 P103 Supervisor Gayle Bishop Grasslands Project, Letter of December 5, 1995 December 11, 1995 The District would be happy to discuss with the County ways in which we can achieve our common goal of improving water quality in the Bay-Delta by ensuring our efforts result in real pollutant reductions. The District remains strongly opposed to the San Luis Drain and will continue to find legal means to stop it. Dr. Richard Denton of our staff is available to discuss actions that we might take. He can be contacted at (510) 688-8187. Sincerely, Walter J. ishop General Manager WJB/GG/ce Attachments CC*. Board of Directors Richard Denton