Since the 1980s, Shasta Dam has been a focal point in debates for increasing the state’s water storage capacity. In 2014, such a proposal initially led nowhere when the U.S. Bureau of Reclamation (Bureau) studied the potential impacts of raising the dam by 18.5 feet, finding that such a project could have adverse effects on the McCloud River, violating the state’s Wild and Scenic Rivers Act (WSRA). With newfound wind in its sails under the current federal administration, however, the Bureau has revived its interest in raising Shasta Dam by teaming up with Westlands Water District (Westlands). Welcomed by a storm of opponents seeking to prevent the project from going forward, the Bureau and Westlands now find themselves in a legal battle to keep the project from sinking.
Background
Decades in the making, the Bureau’s Shasta Dam and Reservoir Enlargement Project (Project) began to take off in 2014 when the Final Environmental Impact Statement for the Shasta Lake Water Resources Investigation (FEIS) was completed. The FEIS analyzed the benefits and environmental impacts of raising the Shasta Dam by varying heights, ranging from 6.5 to 18.5 feet, and acted as an important step for the Bureau in fulfilling its obligations under the National Environmental Policy Act (NEPA).
The Bureau considered the potential impacts of the Project on the McCloud River, specifically looking at the transition reach of the McCloud Arm of Lake Shasta into the Lower McCloud River. In this analysis, the Bureau determined that if the Project were to be implemented, the transition reach would be increased by about 3,550 feet, extending 39 percent further up the McCloud than the current transition reach and absorbing 3 percent of the river from the McCloud Dam to Lake Shasta.
Based on these findings, the Bureau concluded that the Project would have a “potentially significant” impact on the wild trout fishery located on the McCloud River and a “significant and unavoidable” impact on the free-flowing condition of the McCloud. Additionally, the FEIS acknowledged that these impacts would conflict with the WSRA.
Despite the extensiveness of the FEIS and its accompanying Final Feasibility Report for the Project, no Record of Decision was made and there was no official recommendation.
No further major action was taken until March of 2018 when Congress granted $20.5 million to the Bureau for design and pre-construction activities for the Project, at which point The Bureau began negotiations with Westlands for a cost-share agreement.
In November of 2018, Westlands issued its Initial Study and Notice of Preparation for the Project and announced that it would be serving as the Lead Agency for review under the California Environmental Quality Act (CEQA) in preparing an Environmental Impact Report (EIR). In December, Westlands held a public scoping hearing in Redding and in January accepted written comments regarding the Initial Study.
The Complaint Against Westlands in California Superior Court
On May 13, 2019, several environmental groups (collectively: plaintiffs) filed suit in California Superior Court in Shasta County, alleging that Westlands’ cooperation and assistance in the Project violates the WSRA and seeking declaratory and injunctive relief on the matter.
Created in 1972 to protect listed rivers in California by preserving their free-flowing state and their immediate environments, the WSRA established a list of rivers throughout California, chosen for their “extraordinary scenic, recreational, fishery, or wildlife values.” In 1989, the WSRA was amended to add § 5093.542, which gave the McCloud River a protected status.
Although not specifically listed among the other rivers protected by the WSRA, § 5093.542 declares that:
“. . .the McCloud River possesses extraordinary resources in that it supports one of the finest wild trout fisheries in the state. . .[and that]. . .maintaining the McCloud River in its free-flowing condition to protect its fishery is the highest and most beneficial use of the waters of the McCloud River.”
Additionally, § 5093.542(c) prohibits state agencies from assisting or cooperating with any government agency:
“. . .in the planning or construction of any dam, reservoir, diversion, or other water impoundment facility that could have an adverse effect on the free-flowing condition of the McCloud River, or on its wild trout fishery.”
Using the WSRA as the spearhead for their suit, plaintiffs’ cause of action alleges that: 1) Westlands is a state agency, 2) Westlands is assisting and cooperating with a federal agency (the Bureau) in the Project, 3) the Project could have an adverse effect on the free-flowing condition of the McCloud River and its wild trout fishery, and ultimately 4) Westlands is acting is violation of the WSRA.
Conclusion and Implications
The Bureau of Reclamation does have to comply with the federal Water Infrastructure Improvements for the Nations Act, which requires that the Bureau secure a non-federal cost-share partner to cover at least 50 percent of the Project funding. Accordingly, the Bureau would still need a local partner to split the costs of the Project, whether Westlands or a different agency.
In the event plaintiffs’ challenge is successful, the Bureau of Reclamation will need to find a new, non-state agency cost-share partner, slowing the progress of the Project significantly. Until and unless that happens, however, Westlands and the Bureau have set their schedule to begin construction for the Project by December, 2019.
(Wesley A. Miliband, Kristopher T. Strouse)
