VIA ELECTRONIC MAIL and CERTIFIED MAIL; RETURN RECEIPT REQUESTED
December 11, 2019
Shane Silsby, Director Orange County Public Works 601 North Ross Street Santa Ana, CA 92701 [email protected]
Brendon Biggs, Interim Director San Bernardino County Public Works 825 East Third Street San Bernardino, CA 92415 [email protected]
Jason Uhley, General Manager-Chief Engineer Riverside County Flood Control and Water Conservation District 1995 Market Street Riverside, CA 92501 [email protected]
Margaret Everson, Principal Deputy Director U.S. Fish and Wildlife Service 1849 C Street NW, ROOM 3331 Washington, D.C. 20240-0001 [email protected]
Scott Sobiech, Field Supervisor U.S. Fish and Wildlife Service Carlsbad Fish and Palm Springs Wildlife Office 2177 Salk Avenue, Suite 250 Carlsbad, California 92008 [email protected]
Colonel Aaron Barta District Commander United States Army Corps of Engineers Los Angeles District
December 11, 2019 Page 2 of 13
915 Wilshire Blvd. Los Angeles, CA 90017 [email protected]
Lieutenant General Todd T. Semonite Chief of Engineers and Commanding General United States Army Corps of Engineers Headquarters 441 G Street NW Washington, DC 20314-1000 [email protected]
David Bernhardt, Secretary of the Interior Department of the Interior 1849 C Street, N.W. Washington, D.C. 20240 [email protected]
RE: Notice of Intent to Sue for Violations of the Endangered Species Act Regarding Seven Oaks Dam Releases to the Santa Ana River Causing the Take of Santa Ana Suckers
This letter serves as official notice by the Center for Biological Diversity and Endangered Habitats League (collectively the “Noticing Parties”) of their intent to sue the United States Army Corps of Engineers (“Corps”), Orange County Flood Control District, San Bernardino County Flood Control District, and Riverside County Flood Control and Water Conservation District (collectively, “Local Sponsors”), for violations of section 9 of the Endangered Species Act (“ESA”)1 in connection with water release events on the Santa Ana River that have caused and are reasonably certain to continue to cause the take of the federally threatened Santa Ana sucker (Catostomus santaanae). This letter is being provided to you pursuant to the notice requirement of the ESA citizen suit provision.2
As described more fully below, the actions taken by the Corps and Local Sponsors caused unlawful “take,” including harm and harassment, of the threatened Santa Ana sucker by releasing water from the Seven Oaks Dam (“SOD”) that caused surface flows containing high levels of sediment to reach Santa Ana sucker spawning and foraging habitat downstream of the SOD. These actions have resulted and are reasonably certain to continue to result in the documented take of large numbers of Santa Ana suckers due to increased sedimentation that smothers eggs in active spawning beds, and damages foraging habitat by decreasing water quality.3 These actions constitute unlawful “takes” in violation of ESA Section 9.
1 16 U.S.C. § 1538. 2 16 U.S.C. § 1540(g). 3 16 U.S.C. §§ 1532(19), 1538(a)(1)(G); 50 C.F.R. § 17.84(k). December 11, 2019 Page 3 of 13
The Center for Biological Diversity (the “Center”) is a California non-profit public interest corporation with approximately 70,000 members, including members living near the Santa Ana River and its tributaries in San Bernardino and Riverside Counties. The Center and its members are dedicated to protecting diverse native species and habitats through science, policy, education, and environmental law.
Endangered Habitats League (“EHL”) is a California non-profit corporation dedicated to the protection of the diverse ecosystems of Southern California and to sensitive and sustainable land use for the benefit of all the region's inhabitants. EHL advocates for the preservation of natural habitats in San Diego, Orange, Riverside, Los Angeles, and San Bernardino Counties, and related ecological regions. As Southern California’s only regional conservation organization, EHL has led the way in establishing an unprecedented, interconnected system of nature reserves. EHL has members living in Western Riverside County and the Inland Empire, and EHL’s members use and enjoy the resources of Riverside and San Bernardino Counties. EHL and its members are particularly concerned with protecting the regions threatened plant and animal species, including the Santa Ana sucker, and in protecting the Santa Ana River watershed.
I. BACKGROUND
A. The ESA Statutory Framework
Congress enacted the ESA in 1973 to provide “a program for the conservation of … endangered species and threatened species” and “a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.”4 As the first step in the protection of these species, section 4 of the ESA5 requires the Secretary of the Interior to list species as “endangered” or “threatened” when they meet the statutory listing criteria.6
Once a species is listed as threatened or endangered, the ESA provides a variety of procedural and substantive protections to ensure not only the species’ continued survival, but also its ultimate recovery. “Congress has spoken in the plainest words, making it clear that endangered species are to be accorded the highest priorities.”7
The ESA’s legislative history supports “the broadest possible” reading of the prohibition against take.8 Section 9 of the ESA prohibits any “person,” including state, county or municipal agencies and/or officials in their official capacity,9 from “taking” or causing the take of any member of an endangered species.10 This take prohibition also applies to threatened species such as the Santa Ana sucker.11 The term “take” is defined broadly, and includes to “harass, harm,
4 16 U.S.C. § 1531(b). 5 Id. § 1533. 6 Id. §§ 1532(6) & (20); 1533(a)(1)(A)-(E). 7 TVA v. Hill, 437 U.S. 153, 155 (1978). 8 Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 704-05 (1995). 9 16 U.S.C. § 1532(13). 10 16 U.S.C. § 1538(a). 11 Id. § 1533(d); 50 C.F.R. § 17.31(applying blanket take prohibition to threatened species by default); 65 Fed. Reg. 19,686 (April 12, 2000). December 11, 2019 Page 4 of 13 pursue, hunt, shoot, wound, kill, trap, capture, or collect” or cause another to do so.12 “Take” includes direct as well as indirect harm and need not be purposeful.13 The ESA further makes it unlawful for any person, including agencies and officials, to cause the take of a listed species to be committed.14 The term “person” includes “any officer, employee, agent, department, or instrumentality…of any State, municipality, or political subdivision of a State … [or] any State, municipality, or political subdivision of a State … .” 16 U.S.C. § 1532(13). The ESA “not only prohibits the acts of those parties that directly exact the taking, but also bans those acts of a third party that bring about the acts exacting a taking. [A] governmental third party pursuant to whose authority an actor directly exacts a taking … may be deemed to have violated the provisions of the ESA.”15
The U.S. Fish and Wildlife Service (“FWS”) has further defined “harass” to include “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns, including breeding, feeding, or sheltering.”16 In addition, “harm” is defined to “include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”17 Altering habitat conditions in a manner “reasonably certain” to harm listed species by impairing essential behavioral patterns, including breeding, spawning, rearing, migrating, feeding or sheltering, constitutes take.18
The ESA authorizes private enforcement of the take prohibition through a broad citizen suit provision. “[A]ny person may commence a civil suit on his own behalf to enjoin any person, including . . . any . . . governmental instrumentality or agency . . . who is alleged to be in
12 Id. § 1532(19). 13 Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. at 704; see also Murrelet v. Pacific Lumber Co., 83 F.3d 1060, 1067-68 (9th Cir. 1996) (finding take without direct observations of harm to protected murrelets when birds nested in trees targeted by logging which “would likely harm murrelets by impairing their breeding and increasing the likelihood of attack by predators”); National Wildlife Federation v. Burlington Northern Railroad, 23 F.3d 1508, 1512 (9th Cir. 1994). 14 Id. § 1538(g). 15 Strahan v. Coxe, 127 F.3d 155, 163 (1st Cir.1997) (holding that by issuing licenses and permits authorizing gillnet and lobster pot fishing, activities known to incidentally injury Northern right whales, Massachusetts officials had exacted a taking). See also Animal Protection Inst. v. Holsten, 541 F. Supp. 2d 1073 (holding state agency liable for take based on its licensing and regulation of trapping); Defenders of Wildlife v. Administrator, EPA, 688 F. Supp. 1334 (D. Minn. 1988), aff’d by Defenders of Wildlife v. Administrator, EPA, 882 F.3d 1294 (8th Cir.1989) (holding the U.S. Environmental Protection Agency (EPA) liable for take associated with the registration of strychnine even though the administration of the pesticide, which was known to poison endangered species, was actually carried out by third parties); Loggerhead Turtle v. County Council of Volusia Co., 148 F.3d 1231 (11th Cir.1998) (holding that plaintiff had standing to proceed against Volusia County for take of threatened and endangered sea turtles, which were harmed by the private, artificial light sources permitted by the County’s regulations); Sierra Club v. Lyng, 694 F.Supp. 1260 (E.D.Tex. 1988), aff’d by Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir.1991) (holding the U.S. Forest Service liable for take because its even-aged management plan allowed private companies to harvest timber in a way that degraded the habitat of the endangered red-cockaded woodpecker); U.S. v. Town of Plymouth, Mass., 6 F.Supp.2d 81 (D.Mass. 1998) (holding the Town of Plymouth liable for the take of endangered piping plovers that had either been run over or isolated from their food source by off-road vehicles, which were allowed on the beach under the Town’s policies). 16 50 C.F.R. § 17.3. 17 Id. 18 Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 784, 787-88 (9th Cir. 1995). December 11, 2019 Page 5 of 13 violation of any provision of [the ESA] . . . .”19 Citizens may seek to enjoin both present activities that constitute an ongoing take and future activities that are reasonably likely to result in a take.20 The ESA’s citizen suit provision also provides for the award of costs of litigation, including reasonable attorney and expert witness fees.21
Section 10 and section 7 of the ESA provide the only means for permitting the taking of listed species in compliance with the prohibitions in section 9 of the Act. Section 10 is applicable to the activities of non-federal entities such as cities and agencies, including the Local Sponsors. The primary mechanism for avoiding liability under section 9 is to apply for and receive an incidental take permit (“ITP”).22 In exchange for permission to “take” a listed species pursuant to an ITP, the permit applicant must commit to implement a “habitat conservation plan” (“HCP”) that “conserv[es]” – i.e., facilitates the recovery of – the species.23 The HCP must delineate “the impact which will likely result from such taking” and the “steps the applicant will take to minimize and mitigate such impacts . . . .”24 Section 7 applies to the activities of federal agencies and requires them to consult with the USFWS to ensure listed species will not be jeopardized by the activity and their critical habitat will not be adversely modified.25 Take of listed species may be authorized through an Incidental Take Statement issued at the conclusion of the consultation.26
B. The Santa Ana Sucker
The Santa Ana sucker is a small freshwater species of fish native to the larger stream systems of Southern California, including the San Gabriel and Santa Ana river systems.27 The sucker prefers cool, clear streams, with temperatures below 72 degrees.28 The sucker utilizes different portions of the watercourse during different life stages.29 Spawning occurs from mid-March until early July, with the peak of breeding activity occurring in April.30 Spawning beds consist of gravel substrate in moderate depth, flowing, water.31 Although the sucker can survive in streams with a variety of currents, it requires a constant stream flow both to keep stream temperatures habitable and to flush the streambed and water column of sediments.32 Increased water turbidity can negatively impact multiple sucker life stages, as fine sediment can smother spawning nests, while decreasing the availability of algae, a primary food source.33
19 16 U.S.C. § 1540(g). 20 National Wildlife Fed’n v. Burlington Northern Railroad, 23 F.3d 1508, 1511 (9th Cir. 1994). 21 16 U.S.C. § 1540(g)(4). 22 Id. § 1539(a)(1)(B). 23 Id. §§ 1539(a)(1)(B), (a)(2)(A); see also Sierra Club v. U.S. Fish and Wildlife Serv., 245 F.3d 434, 441-42 (5th Cir. 2001) (“‘[c]onservation’ is a much broader concept than mere survival” because the “ESA’s definition of ‘conservation’ speaks to the recovery of a threatened or endangered species” (emphasis added)). 24 16 U.S.C. § 1539(a)(2)(A). 25 Id. § 1536(a)(2). 26 Id. § 1536(b)(4)(C). 27 71 Fed. Reg. 19686, 19686 (Apr. 12, 2000). 28 USFWS, Recovery Plan for the Santa Ana Sucker (2017) at I-12. 29 Id. 30 Id at I-11. 31 Id at I-11. 32 USFWS, Recovery Plan for the Santa Ana Sucker (2017) at I-13; 71 Fed. Reg. 19686, 19686 (Apr. 12, 2000). 33 75 Fed. Reg. 77962, 77968 (Dec. 14, 2010). December 11, 2019 Page 6 of 13
By 2000, the Santa Ana sucker had been eliminated from at least 75 percent of its historic range. The remaining sucker habitat has been heavily fragmented and degraded. Today, sucker populations are primarily restricted to the East, West, and North forks of the San Gabriel River; the middle and lower Santa Ana River; and the lower Big Tujunga Creek. In the Santa Ana River, the Santa Ana sucker currently occupies only four to ten kilometers of habitat, and this “available suitable habitat is declining.” 34
FWS listed the Santa Ana sucker as threatened under the ESA on April 12, 2000, due primarily to the threats of “habitat destruction, natural and human-induced changes in streamflows … and demographics associated with small populations.”35 FWS has determined the Santa Ana River habitat that runs through the cities of San Bernardino, Riverside and Colton to be essential for the continued existence of the sucker. FWS first established critical habitat for the Santa Ana sucker on February 26, 2004 and has since amended its critical habitat designation, most recently on December 14, 2010. Critical habitat for the sucker extends roughly 60 miles along the Santa Ana River from the San Bernardino National Forest to the city of Anaheim, protecting the river, as well as some of its upland features and important aspects of its watershed.36
In its revised critical habitat rule, FWS stated that stream flows sufficient to transport coarse sediments from upstream areas and tributaries to occupied habitat downstream is critical to maintaining spawning substrate, and thus essential to conservation efforts.37 Under unaltered conditions, streams experience high flow events that deliver course sediments to downstream areas, while removing fine sediments that have covered up spawning habitats.38 These high flow events have historically coincided with seasonal precipitations events, but the flood control activities have altered the timing and intensity of such flows. The Seven Oaks Reservoir marks the upstream limit of the critical habitat. Operation of the SOD traps coarse sediment behind the dam, while failing to reduce the movement of fine sediment to downstream areas, doubling its negative impact on sucker critical habitat.39 The transport of fine sediment and silt downstream following releases from SOD was previously documented and referenced in the 2011 FWS five year review.40
C. The Seven Oaks Dam
SOD is located on the upper Santa Ana River, about 8 miles northeast of the city of Redlands in San Bernardino County.41 SOD was built by the Corps; construction was completed in 1999, and serves the primary purpose of flood control for San Bernardino, Riverside and Orange Counties.42 The Corps’ Water Control Manual for Seven Oaks Dam indicates that ownership, operation and maintenance of SOD were turned over to the Local Sponsors, on October 1,
34 USFWS 2011 http://ecos.fws.gov/docs/five_year_review/doc3616.pdf 35 71 Fed. Reg. 19686, 19686 (Apr. 12, 2000). 36 See 75 Fed. Reg. 77962 (Dec. 14, 2010). 37 75 Fed. Reg. 77962, 77968 (Dec. 14, 2010). 38 75 Fed. Reg. 77962, 77968 (Dec. 14, 2010). 39 75 Fed. Reg. 77962, 77968 (Dec. 14, 2010). 40 USFWS 2011 http://ecos.fws.gov/docs/five_year_review/doc3616.pdf at p. 13, see figures 3 & 4. 41 U.S. Army Corps of Engineers, Water Control Manual Seven Oaks Dam & Reservoir, September 2003, at 2-1 http://resreg.spl.usace.army.mil/library/WCM%20AND%20REFERENCES/SEVEN%20OAKS/SOAK_WCM.pdf. 42 U.S. Army Corps of Engineers, Water Control Manual Seven Oaks Dam & Reservoir, September 2003, at 2-1 http://resreg.spl.usace.army.mil/library/WCM%20AND%20REFERENCES/SEVEN%20OAKS/SOAK_WCM.pdf. December 11, 2019 Page 7 of 13
2002.43 The Water Control Manual further states that the Local Sponsors are required to operate the SOD in accordance with the Corps’ currently approved water control plan, which is included in the Water Control Manual.44 The specific duties of the Local Sponsors are listed below:45
1. Orange County Flood Control District (“OCFCD”) is responsible for water control management, in accordance with the water control plan, at SOD. OCFCD is required to coordinate with all other entities, public and private, affected by dam operations.
2. San Bernardino County Flood Control District (“SBCFCD”) controls physical operation of SOD, implementing the directives it receives from OCFCD.
3. Riverside County Flood Control and Water Conservation District (“RCFCWCD”) is not directly charged with any specific task necessary for operation or regulation of SOD.
The Water Control Manual directs dam operations and contains the protocols to which the Local Sponsors must adhere when making releases, such as the release at issue here. The Water Control Manual provides the rates at which impounded water can be released, given the physical limitations of SOD infrastructure.
II. INCIDENTS OF TAKE
The construction and operation of the SOD has negatively impacted the Santa Ana sucker population and its critical habitat in the Santa Ana River, as outlined in the FWS Recovery Plan and analysis supporting the designation of critical habitat. The Local Sponsors’ operation of the SOD, in particular the timing and quantity of surface flow releases, can harm downstream suckers and their critical habitat if done without sufficient ecological consideration. One such incident of harm occurred following a May 11, 2019 surface flow release from SOD. The release of murky, fine sediment-laden water from behind SOD, nearly three months after the last natural storm event of the season, moved through downstream spawning beds, causing harm to active nest sites.
The need for the release in question arose because the Corps was allegedly “stockpiling” water behind the dam; this caused water quality to diminish such that water agencies were complaining of the impacts to drinking water quality.46 The release, planned and ordered by OCFCD under the direction of the Corps’ Water Control Manual, was initially set to occur on May 9, 2019.47 After outreach from FWS, raising concerns over the potential impact of such a release on Santa Ana suckers in the absence of a naturally occurring storm event, the release plan was revised and
43 U.S. Army Corps of Engineers, Water Control Manual Seven Oaks Dam & Reservoir, September 2003, at 9-2 http://resreg.spl.usace.army.mil/library/WCM%20AND%20REFERENCES/SEVEN%20OAKS/SOAK_WCM.pdf.; Orange County Flood Control District, Seven Oaks Dam (last visited 7/29/2019), http://www.ocflood.com/sarp/7oaks 44 U.S. Army Corps of Engineers, Water Control Manual Seven Oaks Dam & Reservoir, September 2003, at 9-2 http://resreg.spl.usace.army.mil/library/WCM%20AND%20REFERENCES/SEVEN%20OAKS/SOAK_WCM.pdf. 45 U.S. Army Corps of Engineers, Water Control Manual Seven Oaks Dam & Reservoir, September 2003, at 9-3 http://resreg.spl.usace.army.mil/library/WCM%20AND%20REFERENCES/SEVEN%20OAKS/SOAK_WCM.pdf. 46 Exhibit 1 at 1. 47 Exhibit 2 at 8-9. December 11, 2019 Page 8 of 13 scheduled for May 11, 2019, when a storm event was expected to result in surface flow from the upper San Bernardino Basin.48 FWS advised that planning the SOD release for the tail end of a significant natural storm event would partially mask the negative impact of the SOD release on river resources.49 Since the natural storm runoff would lead to some increase in mainstem turbidity, a portion of the total turbidity increase, from rain and SOD release, would be attributed to the natural storm event.50
As originally planned, the release would be begin at 9:00 a.m. and would ramp up from 120 to 700 cubic feet per second, and sustain that level of flow until May 14, 2019, before decreasing to 250 cubic feet per second by May 20, 2019.51 It was anticipated that this level of flow would move significant amounts of sediment downstream, since the mainstem channel was considered saturated after a wet winter and spring.52 The maximum release rate from the debris pool is 500 cubic feet per second, a release rate that is deemed to avoid significant impacts on Santa Ana sucker habitat downstream of the SOD.53 Email exchanges between the Corps and OCFCD estimate that a release of 700 cubic feet per second would generate flows that would reach the Riverside Avenue Bridge in approximately 8 hours, and that the velocity of the release-generated flows would be sufficient to move coarse sands and fine gravels long distances, while potentially moving larger gravel particles locally.54
On May 11, 2019, prior to the scheduled 9:00 a.m. SOD release, FWS contacted representatives from the Corps and OCFCD, warning that the weather forecast had changed such that chances of a natural precipitation event sufficient to impact surface flows was unlikely, and therefore the planned release would likely harm suckers downstream.55 In its communication with OCFCD engineers, FWS outlined the potential harm of the planned release under current conditions:
“… a release of flow from Seven Oaks Dam that results in surface flow reaching the perennial stream is likely to cause harm to sucker. This harm will be in the form of smothering viable eggs in spawning beds (gravel beds), reduced water quality (high sediment load and low oxygen levels), transport of young fish downstream (increased potential for predation and exposure to high velocity flow), and reducing in foraging habitat for juvenile and adult fish (gravel beds covered by influx of deposited sand).”56
FWS recommended that formal consultation for such activities (moderate to high flow releases) should be conducted to cover incidental take of federally-listed species, and that the release should be “delayed until favorable conditions reduce the potential for impacts
48 Exhibit 2 at 1-2. 49 Id. 50 Exhibit 2 at 1-2. 51 Exhibit 3 52 Exhibit 2 at 7. 53 U.S. Army Corps of Engineers. Draft Supplemental Environmental Assessment/Negative Declaration, Seven Oaks Dam Updated Water Control Manual. May 2014. p. 69. Available at: https://www.spl.usace.army.mil/Portals/17/docs/publicnotices/Draft%20Public%20Review%20WQS%20SEA%20w %20IS_MAY%202014.pdf. 54 Exhibit 4 at 1 55 Exhibit 2 at 1. 56 Id. December 11, 2019 Page 9 of 13 to Santa Ana sucker.”57 Despite these plain warnings, and the lack of a natural storm event, flows from SOD were released May 11, 2019.58
On May 13, 2019, a FWS biologist observed the flows generated by the May 11, 2019 release (“SOD flows”) moving into fish-inhabited portions of the stream. The FWS biologist photographed the SOD flows mixing with clear, tertiary treated waste water discharged from the Rialto and RIX waste water treatment plants, just upstream from fish-occupied portions of the Santa Ana River mainstem. The photographs, included below, were taken approximately 0.60 miles upstream of the S. Riverside Ave. bridge, in the city of Colton.
The photo shows sediment-laden SOD flows entering the mainstem and mixing with clear water released from adjacent water treatment. Taken 5/13/19 by FWS staff, obtained in response to a 7/2/2019 FOIA request.
57 Exhibit 2 at 1. The Noticing Parties have previously provided the Corps with notice that the Corps is in violation of section 7 of the ESA, 16 U.S.C. § 1536 due to its failure to consult and/or reinitiate consultation with the U.S. Fish and Wildlife Service based on, among other things, the effects of dam operations and releases on the Santa Ana sucker and designated Santa Ana sucker critical habitat. The Corps’ failure to initiate or reinitiate formal consultation here despite the reasonable certainty of Santa Ana sucker take evidences and is an outgrowth of this previously-noticed ESA violation. 58 Exhibit 3 December 11, 2019 Page 10 of 13
Photo shows sediment-laden SOD flows entering the native fish-occupied stream portion of the mainstem. Photo taken 5/13/19 by FWS staff and obtained as part of a FOIA request submitted 7/2/2019.
The FWS biologist observed larval and young-of-year Santa Ana sucker at, and downstream of, the point at which SOD flows mixed with the tertiary treated waste water discharges. Additionally, the portion of the river depicted above is known to be utilized by Santa Ana sucker for spawning beds due to the presence of ideal substrate in the streambed.59
59 Santa Ana Riverwalk 2018, Quality of Substrate for Spawning. December 11, 2019 Page 11 of 13
The SOD flows caused demonstrable harm to Santa Ana sucker individuals, active spawning nests eggs as well as occupied habitat.60 Neither the Local Sponsors nor the Corps had authorization for the take of Santa Ana sucker that resulted from the intentional release of SOD flows. The 2002 Biological Opinion associated with construction and operation of the Seven Oaks Dam did not provide authorization for the incidental take of Santa Ana sucker, as it concluded that operation of the dam was not likely to adversely affect Santa Ana suckers.61
OCFCD, the other Local Sponsors and the Corps made no apparent attempt to avoid or mitigate the potential impacts of releasing water impounded behind SOD outside of a natural storm event, despite warnings and proposed mitigation actions issued by FWS.62 The Local Sponsors nevertheless undertook extensive coordinating efforts in anticipation
60 50 C.F.R. § 17.3 [Harm includes adverse habitat modification that injures wildlife by significantly impairing an essential behavior, such as breeding.] 61 U.S. Army Corps of Engineers, Water Control Manual Seven Oaks Dam & Reservoir, September 2003, Exh. J, Seven Oaks Dam Biological Opinion, 2002 at 1, http://resreg.spl.usace.army.mil/library/WCM%20AND%20REFERENCES/SEVEN%20OAKS/SOAK_WCM.pdf 62 Exhibit 2 at 4, 6. FWS proposed measures such as creating dikes and/or berms that would direct flows away from occupied stream sections, particularly near the Rapid Infiltration and Extraction Treatment Facility (“RIX”), where spawning beds are located. December 11, 2019 Page 12 of 13 of the release, including closing trail access near the Santa Ana River below SOD, as well as working with local law enforcement to notify and evacuate homeless encampments along the River.63 Meanwhile, the Corps failed to ensure that the release was consistent with the Water Control Manual and water control plan, asserting that the releases would occur “in a manner that is compliant with the Water Control Manual … .”64 Inquiring as to whether the release had been made, a Corps staff person noted, “we had agreement on a particular course of action and I didn’t see anything in earlier emails that said if the rain did not occur as predicted, then the release should not occur.”65
The Local Sponsors, in planning the May 2019 release, ignored vital information concerning the hydrologic needs of the suckers during spawning, as contained in the 2017 FWS Recovery Plan for Santa Ana suckers as well as the 2010 critical habitat revision. The Local Sponsors also ignored FWS’s multiple warnings concerning the impacts of the planned release. Despite receiving a specific recommendation that consultation should be initiated because the activity was not covered under an existing incidental take permit, the Local Sponsors carried out the May 11, 2019 release that resulted in harm to Santa Ana sucker.
The harm caused by this SOD release is reasonably certain to occur again, since the Local Sponsors and the Corps believe that such releases are compliant with Water Control Manual and 2011 Interim Environmental Guidelines.66 This foreseeable harm to Santa Ana suckers may be minimized or avoided entirely through, for example, the adoption of protocols governing the timing and mode of the releases, but on the Noticing Parties’ information and belief, there are no legal or regulatory mechanisms in place that will ensure the harm is minimized or avoided. The Local Sponsors’ refusal to implement mitigating actions on a voluntary basis indicates that future SOD releases that harm Santa Ana suckers are reasonably certain to recur. This was not a one- off incident, nor was it an accident. This was an intentional action, carried out by the Local Sponsors, with the support of the Corps, in spite of FWS objections.
III. CONCLUSION
The Local Sponsors’ release of outflows from the SOD to the Santa Ana River on May 11, 2019, with support of the Corps, led to sediment-laden surface flows moving through occupied habitat where active spawning nests were located, causing the take of the threatened Santa Ana sucker. Because the Local Sponsors and Corps have failed to obtain take authorization that may have allowed for limited take of Santa Ana suckers under certain conditions, the past and continuing actions of the Local Sponsors and Corps that are harming Santa Ana suckers is an illegal take in violation of the ESA. If the Local Sponsors and Corps do not remedy this violation within the next 60 days, the Noticing Parties may initiate legal proceedings against all responsible agencies to prevent any further illegal take of the Santa Ana sucker. If you have any questions, wish to meet to discuss this matter, or feel this notice is in error, please contact us.
63 San Bernardino Sun, “Seven Oaks Dam release postponed due to rain threat, has been rescheduled for Saturday,” 5/9/19, https://www.sbsun.com/2019/05/09/water-to-be-released-from-seven-oaks-dam-dangerous-flows-possible/ 64 Exhibit 5 at 1. 65 Exhibit 2 at 1. 66 Exhibit 5 at 2, 8. December 11, 2019 Page 13 of 13
Sincerely,
Ross Middlemiss John Buse Center for Biological Diversity 1212 Broadway, Ste. 800 Oakland, CA 94612 Tel: (510) 844-7125 [email protected] [email protected]
Exhibit 1 From: Palenscar, Kai To: Karin Cleary-Rose Cc: Ken Corey Subject: SOD High Flow Release Date: Wednesday, April 24, 2019 7:48:02 AM
Hi Karin,
I have a call with the Corps (Hayley's group) at 9 am to discuss the potential for a high flow release from SOD to occur sometime soon. The Corps has been stockpiling water behind the dam for months without our knowledge and now the water quality has become poor (for drinking) and the water agencies are complaining. The longer it is held the worse the situation will become for humans and wildlife.
A release of any significance (>500 cfs) will flow the length of the dry channel and merge with the perennial stream and sucker occupied habitat.
Potential for Harm If conducted now (anytime before mid-June) would likely negative impact spawning beds and larval/juvenile sucker (harm/death from suffocation/displacement). For adult fish (harm from displacement/temporary reduction in habitat quality) the loss of forage habitat would occur any time of year. Fine sediment moved into the inset channel would remain for several months and reduce the amount of exposed gravels during that time.
Potential for Benefit The benefit would be on the receding limb of the flow where some new areas would be scoured (open up new foraging habitat but likely less than the amount covered by fine sediment). If conducted in the middle of the spawning season those fish that are not spawned out would search for appropriate spawning sites on the receding limb of the hydrograph (similar to a late season storm event and a natural process). This may trigger or renew spawning. The displacement of fish downstream is not a bad thing. Summer warming likely causes massive die-offs of young-of-the-year fish between Riverside Avenue and the Riverside landfill. Cool upwelling upstream of the Riverside narrows provides thermal refuge for fish during the hot summer months.
Discussion topics will include what flow releases are possible from the dam, what monitoring the Corps can provide, what data and where it should be collected, etc. These data will be used to vet recent flow models with empirical data to see if they are providing accurate information. It will also be used to see where modification in the channel may be made to encourage flow to enter the '69 breakout channel.
Formal consultation will likely be necessary and I will encourage the Corps to find/place sediment below SOD and test a technique I recently learned about at my last NCTC training which is designed to remove fine sediment from a stream (vortex pipe) and place it off- channel.
Kai
Kai Palenscar, Ph. D. Fish and Wildlife Biologist U.S. Fish and Wildlife Service - Palm Springs Office 777 E. Tahquitz Canyon Way, Suite 208 Palm Springs, California 92262 T: 760-322-2070 x 408 E: [email protected]
Exhibit 2 From: Spencer, John Sent: Sunday, May 12, 2019 8:03 AM To: Lovan, Hayley J CIV (US) Cc: Camara, Alison; Wong, Megan T CIV CESPL CESPD (US) Subject: Re: [Non-DoD Source] Fwd: [EXTERNAL] FW: Seven Oaks Dam (SOD) Release
The release was and is being made. No actions were made to divert water. San Bernardino County stated they were going to have a biologist monitoring. There was no discussion as to what was to occur if the rain didn’t come.
John Spencer
Sent from my iPhone
On May 12, 2019, at 4:35 AM, Lovan, Hayley J CIV (US)
Did you see this message? Was the release made, and were any actions taken to keep the water away from spawning areas, or monitor? We had agreement on a particular course of action and I didn’t see anything in earlier emails that said if the rain did not occur as predicted, then the release should not occur.
Sent with BlackBerry Work (www.blackberry.com)
From: Palenscar, Kai
Dear Hayley,
The proposal to release flow from Seven Oaks Dam was delayed from Thursday, May 9 to Saturday, May 11 (8 am) based on the prediction for moderate precipitation to occur on May 11 resulting in surface flow in the Santa Ana River. The current weather prediction for Mentone, CA is for 30% chance of 0.03 inches of rain, starting at 1 pm (source: Weather Underground). This magnitude of precipitation is not likely to result in significant surface flow in the Santa Ana River. Based on the current conditions and unlikely chance for natural storm flow to interact with the perennial lowland stream (occupied by Santa Ana sucker), a release of flow from Seven Oaks Dam that results in surface flow reaching the perennial stream is likely to cause harm to sucker. This harm will be in the form of smothering viable eggs in spawning beds (gravel beds), reduced water quality (high sediment load and low oxygen levels), transport of young fish downstream (increased potential for predation and exposure to high velocity flow), and reducing in foraging habitat for juvenile and adult fish (gravel beds covered by influx of deposited sand).
1 Due to the high probability that a moderate to high flow release from Seven Oaks Dam will negatively affect Santa Ana sucker today (May 11, 2019), and potentially additional federally listed species, formal consultation should be initiated to cover incidental take for this type of activity. The pending release of flow from Seven Oaks Dam should be delayed until favorable conditions reduce the potential for impacts to Santa Ana sucker, or additional avoidance and minimization measures are provided to reduce impacts to native aquatic species. In addition to reducing impacts to listed species it is highly recommended that this type of activity is monitored to collect data (flow, sediment transport, etc.) that will be useful for future releases from Seven Oaks Dam.
Below is the current flow from the USGS E Street Gauge in San Bernardino, CA. No increase in surface flow is noted for Saturday, May 11, 2019.
Thank you, Kai
Kai Palenscar, Ph. D. Fish and Wildlife Biologist
U.S. Fish and Wildlife Service ‐ Palm Springs Office 777 E. Tahquitz Canyon Way, Suite 208 Palm Springs, California 92262 T: 760‐322‐2070 x 408 E: [email protected]
On Thu, May 9, 2019 at 10:11 AM Spencer, John
Kai,
2 Attached is the release plan that we discussed.
Thank you,
John Spencer, M.S., P.E. Civil Engineer Flood Programs Federal Projects OC Public Works Office: (714) 647‐3965
Mobile: ( [email protected]
From: Palenscar, Kai
Good Morning,
I had a lengthy discussion with John Spencer regarding the planned release from Seven Oaks Dam. He will be providing a revised release schedule soon.
The plan that we discussed is delaying the release until this weekend and initiate the release on the tail of the storm event that is predicted for Saturday. This storm will likely provide surface flow from the upper San Bernardino Basin to the perennial stream. If the release from Seven Oaks Dam is conducted after the natural storm flow, it will have minimal additional impact on native fishes, including Santa Ana sucker.
If any of this is inaccurate Spencer, please revise.
Thank you, 3 Kai
Kai Palenscar, Ph. D.
Fish and Wildlife Biologist
U.S. Fish and Wildlife Service ‐ Palm Springs Office
777 E. Tahquitz Canyon Way, Suite 208
Palm Springs, California 92262
T: 760‐322‐2070 x 408
On Wed, May 8, 2019 at 6:05 PM Palenscar, Kai
Hi Hayley,
As far as I can tell these interim recommendations were based upon a storm event originating proximal to the time period of the dam release. If the proposed dam release was proximal to a storm event the impact to downstream resources would be minimal as the natural storm flow would have caused the initial impact to river resources. At this point in the season we are well into the Santa Ana sucker spawning season and the last significant storm event was in February, approximately 3 months ago. Any release from Seven Oaks Dam that causes surface flow to reach the sucker‐occupied stream (downstream of La Cadena) is likely to cause negative impacts to both spawning beds and larval/small juvenile fish occupying the shallow stream margin.
Is it possible to move sediment (create berms/dikes) to direct flows away from the occupied stream near the RIX facility? This would avoid some of the impact to spawning beds.
Will anyone be monitoring conditions in the stream? If so, who is monitoring what and where?
4 Thank you,
Kai
Kai Palenscar, Ph. D.
Fish and Wildlife Biologist
U.S. Fish and Wildlife Service ‐ Palm Springs Office
777 E. Tahquitz Canyon Way, Suite 208
Palm Springs, California 92262
T: 760‐322‐2070 x 408
On Wed, May 8, 2019 at 12:13 PM Lovan, Hayley J CIV (US)
My understanding from the dam operators is that the release will commence tomorrow in a manner that is compliant with the Water Control Manual, and that an environmental release is not feasible at this time. However, they will implement the Interim Environmental Guidelines agreed upon between Orange County Public Works and USFWS (Heather Dyer) after the 2011 High Flow Release ‐ attached. Please contact the Reservoir Regulation Team (John Spencer or Alison Camara) directly with any questions or to discuss plans during future storm events.
Orange County asked me to also forward the attached email from Heather Dyer (from 2011). She had drafted an internal briefing paper on the Environmental Guidelines.
Alison's phone number is 714‐647‐3961 and her email is [email protected]. John's phone number is (714) 647‐3965 and his email is [email protected].
Hayley J. Lovan Chief, Ecosystem Planning Section Los Angeles District, U.S. Army Corps of Engineers [email protected]
Office: 213‐452‐3863 Cell:
‐‐‐‐‐Original Message‐‐‐‐‐ 5 From: Palenscar, Kai [mailto:[email protected]] Sent: Wednesday, May 8, 2019 8:56 AM To: Lovan, Hayley J CIV (US)
Dear Hayley,
If this is really going to occur tomorrow can we discuss measures to reduce impacts to sucker spawning habitat?
One measure I have thought of to avoid smothering some of the best spawning habitat would be to place sediment berms (dikes) at strategic locations to maintain flow along the southern portion of the floodplain downstream of the RIX discharge location and upstream of Riverside Avenue Bridge. The perennial stream is currently confined to the northern portion of the floodplain until just downstream of Riverside Avenue Bridge where it run near the southern levee. There are two or three braids of the river that connect to the wetted stream upstream of Riverside Ave. If these were blocked to divert flow back to near the southern levee this would maintain approximately 1 mile of sucker spawning habitat, of a total of approximately two miles of spawning habitat (amount of spawning habitat is highly variable).
Thank you, Kai
Kai Palenscar, Ph. D. Fish and Wildlife Biologist
U.S. Fish and Wildlife Service ‐ Palm Springs Office 777 E. Tahquitz Canyon Way, Suite 208 Palm Springs, California 92262 T: 760‐322‐2070 x 408
On Tue, May 7, 2019 at 5:36 PM Lovan, Hayley J CIV (US)
Yes, I was made aware of this today. I'm coordinating further with the Counties to get more information.
Hayley J. Lovan Chief, Ecosystem Planning Section Los Angeles District, U.S. Army Corps of Engineers [email protected]
Office: 213‐452‐3863 Cell:
6
‐‐‐‐‐Original Message‐‐‐‐‐ From: Palenscar, Kai [mailto:[email protected]
Hi Hayley,
Have you heard about this pending release from Seven Oaks Dam? See forwarded message that originated from San Bernardino County Department of Public Works.
Kai
Kai Palenscar, Ph. D. Fish and Wildlife Biologist
U.S. Fish and Wildlife Service ‐ Palm Springs Office 777 E. Tahquitz Canyon Way, Suite 208 Palm Springs, California 92262 T: 760‐322‐2070 x 408
E: [email protected]
‐‐‐‐‐‐‐‐‐‐ Forwarded message ‐‐‐‐‐‐‐‐‐ From: Jeff Beehler
FYI. See below. The ground is saturated up here and we only have the capacity to take about 130 cfs under current conditions. Based on what we’ve seen in the channel this year, it’s also saturated. I’d expect these SOD flows will continue downstream. The higher of the releases (1,000 and 750) will likely move significant sediment downstream.
7
From: Daniel Cozad Sent: Tuesday, May 07, 2019 8:19 AM To: Jeff Beehler; Manuel Colunga; Katelyn Scholte; Heather Dyer; 'Doug Headrick' Subject: Fwd: Seven Oaks Dam (SOD) Release
Daniel B. Cozad
Please excuse typo's and autocorrect errors as this was sent from my iPad
Begin forwarded message:
From: "McKenzie, Jr., James"
All,
Here's the draft release for SOD starting on May 9th:
1,000 cfs release starting 5‐9‐19
‐ Ramp up to 1,000 cfs and sustain it for 4 hours
‐ Ramp down to 750 cfs for the weekend
8 ‐ Gate changes occur on normal business days
‐ Reach Debris Pool on 6‐7‐19
‐ Reach Sediment Pool on 6‐12‐19
‐ Assumed release of 250 cfs can be diverted by the water districts
Lillian,
Please forward this to the BTAC.
I will provide an update if this changes.
Thanks,
James McKenzie, Jr.
Groundwater Recharge Coordinator Department Of Public Works Flood Control Planning Division
Phone: 909‐387‐7831 Fax: 909‐387‐7801
Our job is to create a county in which those who reside and invest can prosper and achieve well‐being.
BlockedBlockedBlockedwww.SBCounty.gov
9
County of San Bernardino Confidentiality Notice: This communication contains confidential information sent solely for the use of the intended recipient. If you are not the intended recipient of this communication, you are not authorized to use it in any manner, except to immediately destroy it and notify the sender.
10
Exhibit 3 Ross Middlemiss
From: Doublet, David Sent: Thursday, May 9, 2019 11:12 AM To: Biggs, Brendon; Eke, Ken; Walker, Melissa; Meeka, Darren Subject: FW: Seven Oaks Dam Status Update - Draw Down Schedule 2019
FYI, see below for update from Orange County.
David R. Doublet (909) 387‐7918
From: SODResReg
Current Conditions: (As of 1100 hr, Thursday May 9, 2019)
Reservoir Level: 2304’ (Main Flood Control Pool)
Sediment Elevation: 2131’
Depth of water: 173’
Reservoir Volume: 17,772 AF
Release: 120 cfs
Draw Down Schedule:
May 11, 2019 - Start Ramp Up at 0900 hr From 120 cfs to 700 cfs by 1100 hr
Maintain Approximately 700 cfs Until May 14, 2019
May 14, 2019 to May 20, 2019 – Start Ramp Down to Approximately 250 cfs
Maintain Approximately 250 cfs Until Debris Pool Elevation 2200’ is Reached
1
Note: The National Weather Service is predicting approximately 1.4 inches of rain within the SOD watershed between Thursday, May 9, 2019 and Tuesday, May 14, 2019. Concerns raised by USFWS have been resolved, which resulted in the draw down to begin May 11, 2019.
2
Exhibit 4 From: Kemp Weitzman, Erica D CIV USARMY CESPL (US)
(view in html)
For 700 cfs it’s approx. 19 miles to the bridge with an average of 3.3 fps. You can check my math but that comes out to a crude estimate of about 8 hours. I would assume a large buffer on this estimate but hopefully it helps for rough order of magnitude planning purposes.
distance avg velocity ft mi fps sec min hr 100445.4 19.0 3.345665 30022.55 500.3758 8.339597
For particle movement, it looks like shear stress will be high enough in the area (avg ~0.30 lbs/sq ft) near Riverside drive to cause incipient motion of some gravel particles (~10‐15 mm). Keep in mind this is only initiation of movement for freely available particles. Particles traveling longer distances will be smaller—we might see some good movement of coarse sands and fine gravels at this flow rate.
Is this the kind of ballpark estimate you were looking for?
Regards,
Erica D. Kemp Weitzman, P.E. Lead Planner Planning Division, Plan Formulation, Coastal Studies Los Angeles District, U.S. Army Corps of Engineers [email protected]
Office: 213.452.3571 Cell:
‐‐‐‐‐Original Message‐‐‐‐‐ From: Camara, Alison [mailto:[email protected]] Sent: Wednesday, May 8, 2019 16:08 To: Kemp Weitzman, Erica D CIV USARMY CESPL (US)
1
Hi Erica,
Perhaps if you can provide us a ballpark average velocity of the river for 700 cfs, we can approximate travel time solely on distance? Just a thought.
Thanks, Alison
‐‐‐‐‐Original Message‐‐‐‐‐ From: Kemp Weitzman, Erica D CIV USARMY CESPL (US)
Thank you Kim.
Alison, I will look into other items later today.
Regards,
Erica D. Kemp Weitzman, P.E. Lead Planner Planning Division, Plan Formulation, Coastal Studies Los Angeles District, U.S. Army Corps of Engineers [email protected]
Office: 213.452.3571 Cell:
‐‐‐‐‐Original Message‐‐‐‐‐ From: Gilbert, Moon K CIV USARMY CESPL (US) Sent: Wednesday, May 8, 2019 16:01 To: Kemp Weitzman, Erica D CIV USARMY CESPL (US)
Our CWMS models are set up as "real‐time" operational guidance tool, and not as an analysis tool. We also currently don't have a CWMS model specific to Seven Oaks Dam.
2 As I have told Alison over the phone, ResReg is real‐time operations and we do not develop models for studies. Our CWMS models are comprised of several model inputs, starting with a rainfall model, HMS, ResSim, and RAS, all of which are developed and provided by our H&H Sections for our use. We generally don't need RAS outputs for making real‐ time operation decisions.
In conclusion, ResReg doesn't have the hydrograph showing the data you're looking for.
Kim
Kim Gilbert Senior Hydraulic Engineer Reservoir Regulation Section Hydrology and Hydraulics Branch, Engineering Division U.S. Army Corps of Engineers Los Angeles District 213‐452‐3533
‐‐‐‐‐Original Message‐‐‐‐‐ From: Kemp Weitzman, Erica D CIV USARMY CESPL (US) Sent: Wednesday, May 8, 2019 3:44 PM To: Camara, Alison
Questions about timing require an unsteady‐state model with a hydrograph. ResReg may be able to provide this but it is unlikely this would have a quick turnaround time‐‐Kim please chime in if you have anything to add here, I'm not familiar with all of the inner workings of the CWMS unsteady set‐up. Sediment inquiries also require a different model configuration. We have models that do these things but I don't believe we would be able to give you answers today. However, I'll look into both of these items.
Regards,
Erica D. Kemp Weitzman, P.E. Lead Planner Planning Division, Plan Formulation, Coastal Studies Los Angeles District, U.S. Army Corps of Engineers [email protected]
Office: 213.452.3571 Cell:
‐‐‐‐‐Original Message‐‐‐‐‐ From: Camara, Alison [mailto:[email protected]] Sent: Wednesday, May 8, 2019 15:04 To: Kemp Weitzman, Erica D CIV USARMY CESPL (US)
Hi Erica,
3 Thank you for running the hydraulic models. This gives us a general idea of the velocities in the river with either a 750 or 1000 cfs release. Would your hydraulic model be able to provide travel times along the river from Seven Oaks Dam to the area below Rialto Channel for a 750 cfs release? Also, does the model provide information on what type of sediment would be moving for velocities between 2.5‐5 fps?
Thanks, Alison
‐‐‐‐‐Original Message‐‐‐‐‐ From: Kemp Weitzman, Erica D CIV USARMY CESPL (US)
Alison,
Moosub and I checked a 2014 final model and an 2017 draft model with updated terrain data. Both models yield results between ~2.5 and 5 fps at the bridge (difference between 750cfs and 1000 cfs is about 0.3 fps ) and this is consistent in the area below Rialto Channel. I would be happy to provide the screen‐shot print outs of these two models if you would like more specific data.
Keep in mind these are channel‐average velocities. Actual numbers will be higher at the thalweg and much lower near the margins. This also doesn't consider any infiltration that may occur prior to flows reaching this area of the channel.
Please let me know if you have additional questions.
Regards,
Erica D. Kemp Weitzman, P.E. Lead Planner Planning Division, Plan Formulation, Coastal Studies Los Angeles District, U.S. Army Corps of Engineers [email protected]
Office: 213.452.3571 Cell:
‐‐‐‐‐Original Message‐‐‐‐‐ From: Kemp Weitzman, Erica D CIV USARMY CESPL (US) Sent: Wednesday, May 8, 2019 10:43 To: Camara, Alison
Alison,
Received. Working on it.
Regards,
4 Erica D. Kemp Weitzman, P.E. Lead Planner Planning Division, Plan Formulation, Coastal Studies Los Angeles District, U.S. Army Corps of Engineers [email protected]
Office: 213.452.3571 Cell:
‐‐‐‐‐Original Message‐‐‐‐‐ From: Camara, Alison [mailto:[email protected]] Sent: Wednesday, May 8, 2019 10:37 To: Kemp Weitzman, Erica D CIV USARMY CESPL (US)
Hi Erica,
Can you run a hydraulic analysis of the Santa Ana River from Seven Oaks Dam to Prado Basin with a 1000 cfs and 750 cfs? Can you provide me a velocity of the river at Riverside Avenue Bridge? This will help us determine if there is a concern regarding Santa Ana Sucker habitat. Please, if you can do this as soon as possible, as we would like to begin releasing water from Seven Oaks Dam tomorrow. Please feel to call me if you have any questions.
Thanks so much!
Alison Camara, P.E.
OC Public Works ‐ OC Infrastructure Programs
Flood Programs Division
Santa Ana River Project
300 N. Flower Street
Santa Ana, CA 92703
(714) 647‐3961 (Work)
(Cell) [email protected]
5
6
Exhibit 5 From: Lovan, Hayley J CIV (US) To: Palenscar, Kai; Cleary-Rose, Karin Cc: Wong, Megan T CIV (USA) Subject: FW: [Non-DoD Source] Fwd: [EXTERNAL] FW: Seven Oaks Dam (SOD) Release Date: Friday, July 19, 2019 4:09:52 PM Attachments: Re Revised Interim Water Control Plan (35.5 KB).msg SOD Interim Water Control Environmental Guidelines-Rev 8-15-11.pdf
Hi Kai and Karin,
Re-sending the guidelines we referred to in our call today.
Thanks for your time today. Have a good weekend!
Hayley J. Lovan Chief, Ecosystem Planning Section Los Angeles District, U.S. Army Corps of Engineers [email protected]
Office: 213-452-3863 Cell: 213-453-3163
-----Original Message----- From: Lovan, Hayley J CIV (US) Sent: Wednesday, May 8, 2019 12:12 PM To: Palenscar, Kai
My understanding from the dam operators is that the release will commence tomorrow in a manner that is compliant with the Water Control Manual, and that an environmental release is not feasible at this time. However, they will implement the Interim Environmental Guidelines agreed upon between Orange County Public Works and USFWS (Heather Dyer) after the 2011 High Flow Release - attached. Please contact the Reservoir Regulation Team (John Spencer or Alison Camara) directly with any questions or to discuss plans during future storm events.
Orange County asked me to also forward the attached email from Heather Dyer (from 2011). She had drafted an internal briefing paper on the Environmental Guidelines.
Alison's phone number is 714-647-3961 and her email is [email protected]. John's phone number is (714) 647-3965 and his email is [email protected].
Hayley J. Lovan Chief, Ecosystem Planning Section Los Angeles District, U.S. Army Corps of Engineers [email protected]
Office: 213-452-3863 Cell: 213-453-3163
-----Original Message----- From: Palenscar, Kai [mailto:[email protected]] Sent: Wednesday, May 8, 2019 8:56 AM To: Lovan, Hayley J CIV (US)
Dear Hayley,
If this is really going to occur tomorrow can we discuss measures to reduce impacts to sucker spawning habitat?
One measure I have thought of to avoid smothering some of the best spawning habitat would be to place sediment berms (dikes) at strategic locations to maintain flow along the southern portion of the floodplain downstream of the RIX discharge location and upstream of Riverside Avenue Bridge. The perennial stream is currently confined to the northern portion of the floodplain until just downstream of Riverside Avenue Bridge where it run near the southern levee. There are two or three braids of the river that connect to the wetted stream upstream of Riverside Ave. If these were blocked to divert flow back to near the southern levee this would maintain approximately 1 mile of sucker spawning habitat, of a total of approximately two miles of spawning habitat (amount of spawning habitat is highly variable).
Thank you, Kai
Kai Palenscar, Ph. D. Fish and Wildlife Biologist
U.S. Fish and Wildlife Service - Palm Springs Office 777 E. Tahquitz Canyon Way, Suite 208 Palm Springs, California 92262 T: 760-322-2070 x 408
On Tue, May 7, 2019 at 5:36 PM Lovan, Hayley J CIV (US)
Yes, I was made aware of this today. I'm coordinating further with the Counties to get more information.
Hayley J. Lovan Chief, Ecosystem Planning Section Los Angeles District, U.S. Army Corps of Engineers [email protected]
Office: 213-452-3863 Cell: 213-453-3163
-----Original Message----- From: Palenscar, Kai [mailto:[email protected]
Hi Hayley,
Have you heard about this pending release from Seven Oaks Dam? See forwarded message that originated from San Bernardino County Department of Public Works.
Kai
Kai Palenscar, Ph. D. Fish and Wildlife Biologist
U.S. Fish and Wildlife Service - Palm Springs Office 777 E. Tahquitz Canyon Way, Suite 208 Palm Springs, California 92262 T: 760-322-2070 x 408
E: [email protected]
------Forwarded message ------From: Jeff Beehler
FYI. See below. The ground is saturated up here and we only have the capacity to take about 130 cfs under current conditions. Based on what we’ve seen in the channel this year, it’s also saturated. I’d expect these SOD flows will continue downstream. The higher of the releases (1,000 and 750) will likely move significant sediment downstream.
From: Daniel Cozad Sent: Tuesday, May 07, 2019 8:19 AM To: Jeff Beehler; Manuel Colunga; Katelyn Scholte; Heather Dyer; 'Doug Headrick' Subject: Fwd: Seven Oaks Dam (SOD) Release
Daniel B. Cozad
Please excuse typo's and autocorrect errors as this was sent from my iPad
Begin forwarded message:
From: "McKenzie, Jr., James"
All,
Here's the draft release for SOD starting on May 9th:
1,000 cfs release starting 5-9-19
- Ramp up to 1,000 cfs and sustain it for 4 hours
- Ramp down to 750 cfs for the weekend
- Gate changes occur on normal business days
- Reach Debris Pool on 6-7-19
- Reach Sediment Pool on 6-12-19
- Assumed release of 250 cfs can be diverted by the water districts
Lillian,
Please forward this to the BTAC.
I will provide an update if this changes.
Thanks,
James McKenzie, Jr.
Groundwater Recharge Coordinator Department Of Public Works Flood Control Planning Division
Phone: 909-387-7831 Fax: 909-387-7801
Our job is to create a county in which those who reside and invest can prosper and achieve well-being.
BlockedBlockedwww.SBCounty.gov
County of San Bernardino Confidentiality Notice: This communication contains confidential information sent solely for the use of the intended recipient. If you are not the intended recipient of this communication, you are not authorized to use it in any manner, except to immediately destroy it and notify the sender.
From: [email protected] [[email protected]] To: Camara, Alison [[email protected]] Subject: Re: Revised Interim Water Control Plan Date: Wednesday, April 20, 2011 12:08:11 Attachment 1: 7 Oaks Release.doc ______
Alison,
Please find attached my summary of the spreadsheet and just give it a quick look to make sure I didn't misinterpret or misunderstand something. This will only be for internal briefing purposes when other biologists have questions about the release plan.
We don't have any further comments on the draft plan. Let's plan on touching base once the Corps engineers give you some feedback.
Thanks,
Heather P. Dyer Fish & Wildlife Biologist U.S. Fish and Wildlife Service Carlsbad Field Office Phone: 760/431-9440 x 246
"Lee, Alison"
04/19/2011 04:31 PM To "Heather Dyer"
Heather and Jenness,
Thank you for meeting with us today. I’ve made some minor revisions to the plan from our discussions and I’ve highlighted them in red. Please let me know if you have any questions.
Thank you,
Alison Lee, P.E. OC Public Works - Flood Control Section Santa Ana River Project
300 N. Flower Street, Room 716 Santa Ana, CA 92703 (714) 834-6061 [email protected]
[attachment "Proposed Interim Water Control Plan 4-19-11.pdf" deleted by Heather Dyer/R8/FWS/DOI]
Winter Storm Season (Oct. 1-March 15)
• Release water as needed based on input in order to keep levels as close to the debris pool elevations as possible. Debris pool and intermediate pool release flows will range from 3 to 500cfs, dependent upon conditions.
• If water is up to Main Trash Rack Pool and 7 Oaks is rising (and assumedly Prado as well) water will be released at 50cfs, per the Water Control Manual. If 7 Oaks is falling, releases will range from 500 – 2000cfs.
• If a large event occurs and water reaches the Main Flood Control Pool, releases will be influenced by the conditions at Prado and range from 500-7000cfs in order to release the excess water quickly and restore flood control capacity.
Late Storm Season (March 15 – April 15)
• Release water from the debris pool and intermediate pool from 3 – 250cfs, as needed. Attempts will be made to reduce the likelihood of temporary, high volumes of water being released that will reach La Cadena but subsequently stop after the debris pool is reached. Volumes will be kept low and steady if conditions allow.
• If water is up to Main Trash Rack Pool and 7 Oaks is rising (and assumedly Prado as well) water will be released at 50cfs, per the Water Control Manual. If 7 Oaks is falling, releases will be 1000cfs in order to empty the reservoir quickly and attempt to mimic a late season storm event. In an effort to limit possible stranding of SAS moving upstream during spawning season, ramp down will be accomplished gradually, with decreases no more than 33% lower than the previous day.
• If a large event occurs and water reaches the Main Flood Control Pool, releases will be influenced by the conditions at Prado. In order to empty the reservoir as quickly as possible and mimic a late season storm, releases will range from 500-6200cfs. Complete draw down to the Main Trash Rack Pool will be accomplished in 3-5 days. However, once this is achieved, further releases will be done gradually, with decreases no more than 33% lower than the previous day.
Spawning Season (April 15 – May 31)
• Operational goal is for levels to be at the Debris Pool by June 1. If levels are at the Debris Pool or Intermediate Pool, releases will match inflow, up to 250cfs.
• If water is up to Main Trash Rack Pool and 7 Oaks is rising (and assumedly Prado as well) water will be released at 50cfs, per the Water Control Manual. If 7 Oaks is falling, releases will be 1000cfs in order to empty the reservoir quickly and attempt to mimic a late season storm event. In an effort to limit possible stranding of SAS moving upstream during spawning season, ramp down will be accomplished gradually, with decreases no more than 33% lower than the previous day.
• If a large event occurs and water reaches the Main Flood Control Pool, releases will be influenced by the conditions at Prado. In order to empty the reservoir as quickly as possible and mimic a late season storm, releases will range from 500-6200cfs. However, once this is achieved, further releases will be done gradually, with decreases no more than 33% lower than the previous day.
Spawning Season (June 1-July 15)
• Operational goal is to have water levels at the Debris Pool by June 1. By July 15 water levels should be at the Sediment Pool for maintenance activities. Minimal releases will occur over the summer. Releases will range from Inflow+20cfs to 250cfs, dependent upon conditions. At 250cfs, it is estimated no water would reach La Cadena as it would have infiltrated the dry riverbed. Keeping water releases low and steady is a measure meant to help prevent SAS from heading upstream late in the spawning season due to high flows and then becoming stranded after the release stops.
Summer (July 16-September 30)
• Releases will be according to Water Control Manual.
Seven Oaks Dam Draft Interim Water Control Environmental Guidelines 8/15/2011
* Note: Discharges can be modified based on unforseen and unique hydrologic conditions to meet public safety concerns, environmental mitigation, and/or maintenance deadlines.
Flow Rate (cfs)
Debris Pool Intermediate Pool Main Trash Rack Pool Main Flood Control Pool Comments 2149.72 to 2200' 2200' to 2265' 2265' to 2299' 2299 ft to 2400 ft 2400 ft to 2500 ft 2500 ft to 2580 ft Seven Oaks Rising 50 cfs Prado Rising 500 500 500 Operational goal: Be down to debris pool by March 15. If October 1 to March 14 3 cfs 3 to 500 cfs needed, flooding of the WSPA would occur in the storm Seven Oaks Falling 500 - 2000 cfs Prado Falling 2000 - 4340 4340 - 6560 6560 - 7000 season to mimic a natural storm event. Seven Oaks Rising 50 cfs Prado Rising 500 500 500 Operational goal: Empty the reservoir as quickly as March 15 to April 15 3 cfs 3 to 250 cfs Seven Oaks Falling 1000 cfs Prado Falling 2000 4340 6560 possible by mimicking a late storm event, so that water will be released early in the spawning season. Ramp down no more than 33% from prior day Ramp down no more than 33% from prior day
Min = 3 cfs Min = 3 cfs Seven Oaks Rising 50 cfs Prado Rising 500 500 500 Operational goal: Be down to debris pool or lower by June April 16 to May 31 Max = Inflow, Max = 250 cfs Seven Oaks Falling 1000 cfs Prado Falling 2000 4340 6560 1. up to 250 cfs Ramp down no more than 33% from prior day Ramp down no more than 33% from prior day Min = 3 cfs Min = Inflow + 10 Min = Inflow + 10 Min = Inflow + 10 Operational goal: Minimal releases. Maximum is no more June 1 to June 30 than what may infiltrate into the river plus diversion (approx. Max = Inflow + 10 cfs Max = 250 cfs Max = 250 cfs Max = 250 cfs 250 cfs). Operational goal: Minimal releases. Maximum is no more Min = 3 cfs Min = Inflow + 20 Min = Inflow + 20 Min = Inflow + 20 than what may infiltrate into the river plus diversion (approx. July 1 to July 15 250 cfs). Draw down to Sediment Pool for maintenance Max = Inflow + 20 cfs Max = 250 cfs Max = 250 cfs Max = 250 cfs activities. Min = 3 cfs Seven Oaks Rising 50 cfs Prado Rising 500 500 500 Operational goal: Releases would be according to the July 16 to August 31 3 to 500 cfs Water Control Manual. Draw down to Sediment Pool for Max = Inflow + 20 cfs Seven Oaks Falling 500 - 2000 cfs Prado Falling 2000 - 4340 4340 - 6560 6560 - 7000 maintenance activities. Min = 3 cfs Seven Oaks Rising 50 cfs Prado Rising 500 500 500 Operational goal: Releases would be according to the September 1 to September 30 3 to 500 cfs Water Control Manual. Prepare for the upcoming storm Max = Inflow + 20 cfs Seven Oaks Falling 500 - 2000 cfs Prado Falling 2000 - 4340 4340 - 6560 6560 - 7000 season.
Normal Operations Environmental Guidelines *
Santa Ana Sucker Assumptions March 15 is the beginning of the spawning season July 15 is the end of the spawning season Hatching takes place in about 15 days DRAFT