Lawsuit Threatened over River

The Elkhorn Slough Coalition has put the Bush administration on notice that it plans to sue two federal agencies and California American Water Co. over the effects of overpumping on the Carmel River.

The Elkhorn Slough Coalition has put the Bush administration on notice that it plans to sue two federal agencies and California American Water Co. over the effects of overpumping on the Carmel River.

Unless the government acts within 60 days, the coalition warned in a letter to Interior Secretary Gale Norton and Commerce Secretary Carlos Gutierrez, it will file a lawsuit over the government's failure to enforce the Endangered Species Act and protect threatened steelhead trout and red-legged frogs harmed by Cal Am's pumping on the river.

Cal Am would also be named in the lawsuit for continuing to overpump the river despite knowledge of its effects on the threatened species and a 10-year-old state order to develop an alternative source of water for the Monterey Peninsula, according to the letter by the coalition's attorney, Pacific Grove City Councilwoman Susan Goldbeck.

Goldbeck said she is also researching a potential action against the State Water Resources Control Board for failing to respond to the situation 10 years after its order, commonly referred to as order "95-10."

That order, issued in July 1995, ruled that Cal Am had legal rights to only 3,376 acre feet of river water per year, but allowed the company to continue pumping 80 percent of its historical take while it "aggressively seeks" a new water source for the Monterey Peninsula. As of 1997, Cal Am is allowed to pump 11,285 acre-feet per year.


In 1996, the red-legged frog was listed as "threatened" under the Endangered Species Act. Steelhead joined the threatened list in 1997.

In the ensuing decade since 95-10 was issued, "No replacement water source has been found and indeed Cal Am has no application for any project presently in the works," Goldbeck wrote. "Neither your agencies nor your delegates have taken any meaningful action in this regard to manage the resource pursuant to (the Environmental Species Act) during this lengthy period.

"It is clear that Cal Am's activity constitutes a multitude of 'takings' under (the Endangered Species Act) triggering substantial civil and criminal penalties," Goldbeck said.

Cal Am officials took issue with several of Goldbeck's characterizations, particularly her assertions that the company has not found a replacement water source and has no project applications in the works.

Steve Leonard, general manager of Cal Am's Monterey operations, learned of the threatened lawsuit as he prepared for a presentation to update the Monterey Peninsula Water Management District on Cal Am's efforts to build a desalination plant in Moss Landing.

The company's application to move forward with that project was suspended by the Public Utilities Commission last year until Cal Am can complete its initial environmental assessment, due in June.

Goldbeck has "missed a number of the facts. Most of what's here is largely, or totally incorrect," Leonard said, after reviewing the letter to the federal agencies. "We made a presentation to (the Pacific Grove City Council). Where was she when all this was going on?

"We do have an application (at the utilities commission)," he said. "It may be in suspension, but it was not rejected. I think you can comfortably say we are aggressively seeking a water supply."

Jan Driscoll, a lawyer who handles issues surrounding the Endangered Species Act for Cal Am, said the company and its rate payers have spent millions of dollars to protect the threatened species on the river.

Under orders from the National Oceanic and Atmospheric Administration Fisheries department, Cal Am pumps water from a lower location on the river, requiring additional treatment and later pumping back up the river, all of which costs rate payers "tens of thousands of dollars a year," said Leonard.

The company has also instituted a bullfrog eradication program to rid the river of one of the primary predators of the red-legged frog; instituted educational programs, both for its employees and local schools, and hired wildlife biologists to monitor the populations on the river. The costs for all of those programs are paid by rate payers.

Driscoll pointed out that Cal Am has been working since 1995 to find an alternative source, first with a new dam, whose financing was rejected by voters, and now with the desalination plant. Cal Am has spent more than $4 million planning that operation.

"To say the company hasn't been pursuing a water project is just not right," she said. "The company has done a lot and spent a lot of money on mitigation for these species and believe me, there's nothing the company would rather do than get off that river because we're under constant threat" of fines from state and federal agencies.

Leonard confirmed that Cal Am has been under increasing pressure from the NOAA Fisheries to find a solution for the threatened species on the river.

In the meantime, Goldbeck asserted in her letter, those species "are disappearing to a greater extent each year" while Cal Am, "a private, German-owned corporation ... has engaged in this activity as part of an effective and highly lucrative profit-based plan."

If the Interior and Commerce departments do not take action within the mandatory 60-day waiting period, Goldbeck said, the Elkhorn Slough Coalition will file a lawsuit to compel them to act and seek a preliminary injunction commanding Cal Am to stop its over-pumping activities.

Source: Knight Ridder/Tribune Business News