Water Provider and Regulator Clash Over Flood Control Project

SAN JOSE, Calif. (CN) – A major Silicon Valley water provider sued a California water quality regulator, claiming its needless and illegal addition of bureaucratic layers to a flood project will not only hurt residents endangered by flooding but potentially prevent a major regional public transportation project.

The Santa Clara Valley Water District sued the San Francisco Bay Regional Water Quality Control Board in Santa Clara Superior Court last Friday, saying the agency’s 11th-hour intervention in a project could jeopardize vital flood control and transit plans in the region.

“The San Francisco Bay Regional Water Quality Control Board has issued an order that puts a major flood control project and regional transportation project — the Upper Berryessa Creek Flood Risk Management Project — together with hundreds of millions of dollars of federal funding at risk,” the water district said in its complaint.

The flood management project was already approved and had completed the federal environmental review process in compliance with the National Environmental Protection Act (NEPA), with the U.S. Army Corps of Engineers taking on the role of lead agency, the water district said.

After completing an extensive review process and garnering the necessary dollars – including a sizable sum of federal money – the water district began to proceed with the project earlier this year.

But before doing so, it obtained a certification from the water-quality control board that it complied with state water standards in March 2016.

However, the control board inexplicably reversed course this past April, the water district says, even though there had been no substantial changes to the project it had approved a year earlier. Nonetheless, water-quality officials allegedly reported that the project would impact 10 acres of water despite a lack of evidence to support this claim.

The water district said such a reversal is illegal.

“If a responsible agency thinks that a certified [environmental impact report] is not for adequate use by the responsible agency then it must either take the issue to court within 30 days of certification, prepare a subsequent EIR … or assume the role of lead agency,” the water district said in its complaint.

The flood project looms particularly large as the Berryessa Creek is part of the Coyote Creek watershed, which overflowed during a rainstorm this past winter and damaged property at three distinct locations in downtown San Jose.

The project proposed to widen the channel of the Berryessa Creek, which is a man-made water diversion ditch dating back to the turn of the 20th century that flows through a highly industrialized area during the winter months only.

The creek does not support fish due to its seasonal flows and high water temperatures.

A widened channel will theoretically stop the banks from overflowing, which causes floods in the area near San Jose and Milpitas every 10 to 20 years, according to the water district.

This is especially important to the Santa Clara Valley Transportation Authority, which plans to undertake a $2.2-billion transportation project to extend the rail system that serves the San Francisco Bay Area all the way to San Jose.

“This project will provide a 100-year flood protection for the new Milpitas BART station, a necessary part of the $2.3 billion (including $900 million in federal funding) project to extend BART to San Jose,” the water district said in the complaint.

The water district said delay to the project could jeopardize the federal funding, which would kill the project and hurt both flood control and a lynchpin transportation project.

More than 650 parcels are affected by the flood control project, according to the water district.

The water district is asking the court to set aside the water control board’s order for a new environmental analysis.

It is represented by Peter Prows of Briscoe Ivester & Bazel LLP based in San Francisco.

The water control board said it does not comment on pending litigation, and the Santa Clara Valley Transportation Authority did not return a call seeking comment.


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