Environmental and fish groups disappointed with appellate court ruling on Sites Reservoir

On Friday, Sept. 20, a California appellate court upheld an earlier trial court ruling and found the controversial Sites Reservoir Project environmental impact report (EIR) to be legally adequate.

Judge Ronald B. Robie, Presiding Judge of the Third Appellate District Court in Yolo County, concluded that “the environmental impact report is not invalid because all the alternatives shared diversion criteria.” Judge J. Wiseman, Retired Associate Justice of the Court of Appeal, Fifth Appellate District, concurred with Robie’s decision.

The Sites Reservoir Project, an offstream water storage facility being promoted by the California Department of Water Resources, would be located on the west side of the Sacramento Valley, approximately 10 miles west of Maxwell in Glenn and Colusa counties. 

Governor Gavin Newsom, who is pushing the project along with the massive Delta Tunnel, celebrated the decision as a victory. Environmental and fish groups, who are contesting the project for the impacts that it will have on imperiled salmon and other fish species and Delta communities, said they were disappointed with the ruling.

“The Sites Reservoir project just cleared another major hurdle after Governor Gavin Newsom had streamlined the project late last year, defeating a CEQA legal challenge,” according to the Governor’s Office in a press statement.

“Today’s appellate court ruling builds on a similar victory in the trial court. The Sites Reservoir will store enough water to support 3 million households’ yearly usage.”

Newsom has no time for ‘frivolous lawsuits’

“We can’t waste anymore time with frivolous lawsuits to hold up major infrastructure projects, especially building more water storage,” said Governor Newsom. “The Sites Reservoir project will capture more rain and snow to supply millions of homes with clean drinking water. This is exactly why we needed this streamlining law.” 

Governor Newsom’s infrastructure streamlining law requires that courts must decide CEQA challenges within 270 days to the extent feasible. Friday’s decision by the Third District Court of Appeal occurred within 256 days. It upholds a trial court decision issued on June 4, 2024 – 108 days ago, Newsom noted. 

Newsom claims the project will capture water during wet seasons and store it for use during drier seasons – holding up to 1.5 million acre-feet of water, “enough for 3 million households’ yearly usage.”

Attorney Don Mooney: ‘We will continue to fight this ill-conceived project’

Don Mooney, attorney for the coalition of conservation groups, including Friends of the River (FOR), California Sportfishing Protection Alliance (CSPA), Center for Biological Diversity, California Water Impact Network, Save California Salmon, and the Sierra Club (plaintiffs), responded to the appellate court decision: 

“We are disappointed in the court’s decision and remain concerned that the public still lacks sufficient information from the Sites Authority to fully understand and appreciate the project’s downstream impacts.  We also remain concerned that given the inaccurate information regarding environmental baseline, the project impacts will not be fully mitigated.”   

We disagree with the court's ruling that the Sites Authority presented a reasonable range of feasible alternatives. If it doesn't leave enough water in the Sacramento River to protect severely depressed salmon populations, Sites Reservoir should not be permitted. We will continue to fight this ill-conceived, environmentally damaging project.”   

In addition to not leaving enough water in the river for imperiled salmon and other fish, fish and water advocates also note that SB 149 requires that the Governor certify a water-related project only if “greenhouse gas emissions resulting from the project will be mitigated to the extent feasible.” (See PRC § 21189.82(4)(C)).

Instead, they said the Sites Project will “move the state backwards on its own ambitious climate goals.” Recent research by Tell the Dam Truth, supported by Friends of the River and Patagonia, reveals that Sites will emit 362,000 metric tons of CO₂e annually, mostly in the form of methane, a significantly more potent greenhouse gas than carbon dioxide. This is the equivalent to the annual emissions from over 80,000 gas-powered cars.

California salmon and other fish populations are in worst-ever crisis

Friday’s court ruling was issued at a time when California salmon, steelhead and other fish populations and the San Francisco Bay-Delta ecosystem are in their worst crisis ever, according to fish advocates.

All recreational and commercial salmon fishing on California’s ocean waters and all recreational salmon fishing on the state’s rivers was closed this year and last year, due to the low returns of Sacramento River and Klamath/Trinity River fall-run Chinook salmon. Only a small allocation of salmon was allowed for the Yurok Tribe on the Klamath River and the Hoopa Valley Tribe on the Trinity River this fall.

Sacramento River winter-run and spring-run Chinook salmon populations continue to move closer and closer to extinction while the Delta smelt, once the most abundant fish in the Delta that numbered in the millions, has become virtually extinct  in the wild. 

For the sixth year in a row, ZERO Delta Smelt were collected in the California Department of Fish and Wildlife’s Fall Midwater Trawl (FMWT) Survey in the Sacramento-San Joaquin River Delta from September through December 2023.

Once the most abundant species in the entire estuary, the Delta Smelt has declined to the point that it has become functionally extinct in the wild. The 2 to 3 inch fish, found only in the Delta, is an “indicator species” that shows the relative health of the San Francisco Bay/Delta ecosystem.

Meanwhile, the other pelagic species collected in the survey — striped bass, Longfin Smelt, Sacramento Splittail and threadfin shad — continued their dramatic decline since 1967 when the State Water Project went into effect. Only the American shad shows a less precipitous decline.

Between 1967 and 2020, the state’s Fall Midwater Trawl abundance indices for striped bass, Delta smelt, longfin smelt, American shad, splittail and threadfin shad have declined by 99.7, 100, 99.96, 67.9, 100, and 95%, respectively, according to the California Sportfishing Protection Alliance.

The graphs in the CDFW memo graphically illustrate how dramatic the declines in fish populations have been over the years: nrm.dfg.ca.gov/… 

Between 1967 and 2020, the state’s Fall Midwater Trawl abundance indices for striped bass, Delta smelt, longfin smelt, American shad, splittail and threadfin shad have declined by 99.7, 100, 99.96, 67.9, 100, and 95%, respectively, according to the California Sportfishing Protection Alliance.  

Taken as five-year averages (1967-71 vs. 2016-20), the declines for striped bass, Delta smelt, longfin smelt, American shad, splittail and threadfin shad are 98.1, 99.8, 99.8, 26.2, 99.3 and 94.3 percent, respectively.

The decline of all of these fish species has been driven by massive water exports by the state and federal water projects to corporate agribusiness interests in the San Joaquin Valley and Southern California water agencies, combined with the proliferation of toxics, water pollution and invasive species in the estuary and Central Valley rivers, according to scientists and fish advocates.

Besides opposing the construction of Sites Reservoir, a broad coalition of Tribes, fishing groups and conservation groups opposes the Delta Tunnel and the Governor’s “voluntary agreements,” water diversion schemes that would make the current ecological crash even worse by taking even more water out of the embattled ecosystem. 

The U.S. Bureau of Reclamation and Sites Project Authority finalized the Environmental Impact Review (EIR) and Environmental Impact Statement (EIS) for the Sites Reservoir Project in November 2023.