Restore Hetch Hetchy Appeal Letter on O'Shaughnessy Dam Modification

Restore Hetch Hetchy
P.O. Box 3591, Walnut Creek, CA 94598
(209) 533-4481
www.hetchhetchy.org

May 9, 2003

Ms. Gloria Young, Clerk
San Francisco Board of Supervisors
City Hall, Room 244
San Francisco, CA 94102-4689

RE: Appeal of the San Francisco Planning Commission's
decision to uphold a "Preliminary Mitigated Negative
Declaration" regarding the proposed O'Shaughnessy Dam
Modification Project, File Number 2002.0475E

Dear Ms. Young,

On behalf of RESTORE HETCH HETCHY, I am filing an appeal of the San Francisco Planning Commission's decision to uphold a "Preliminary Mitigated Negative Declaration" regarding the proposed O'Shaughnessy Dam Modification Project, File Number 2002.0475E.

As required in the "Interim Procedures, Appeals of Negative Declarations and Exemptions," [#4] I am enclosing "proof that [appellants] have appealed a preliminary negative declaration to the Planning Commission" (copies of our March 10 appeal and testimony I delivered before the Planning Commission on May 1), "and that the Planning Commission has upheld the negative declaration" (copy of Planning Commission resolution signed by its Secretary).

RESTORE HETCH HETCHY, is a non-profit organization devoted to returning Hetch Hetchy Valley to purposes for which Yosemite National Park was created and, at the same time, addressing the San Francisco Bay Area's water and power needs.

A full (state) Environmental Impact Report and (federal) Environmental Impact Statement are required: A full (state) Environmental Impact Report (EIR) must be prepared under the California Environmental Quality Act (CEQA) because this project "may have a significant and adverse physical effect on the environment." [Mountain Lion Foundation v. Fish and Game Commission (1997) 16 Cal.4th 105].

Indeed, CEQA requires an EIR to be prepared "whenever substantial evidence in light of the entire record supports a 'fair argument' that a proposed project may have a significant adverse impact on the environment." As recognized by the California Supreme Court, "CEQA's 'fair argument' standard establishes a low threshold for requiring the preparation of an EIR in order to fulfill CEQA's substantive environmental ... objectives." [No Oil,Inc. v. City of Los Angeles (1975) 13 Cal. 3d 68, 85] And, "the 'benefit of the doubt' is given to full environmental review." In other words, the legal burden is on the City and County of San Francisco to demonstrate why a full EIR should not be prepared, and that legal burden has not been met; the legal burden is not on us (the appellants) to demonstrate why a full EIR should be prepared. [Pub. Resources Code, Sec. 21080, subds. (c) and (d); CEQA Guidelines, sections 15064, subd. (a)(1); 15070, subd. (a); Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal. App.4th 144, 150-151, CEQA Guidelines, sections 15064, 15064.5, 15065, as quoted in The California Environmental Quality Act by J. William Yeats, Esq, Planning and Conservation League Foundation, 2002, pp. 10-11]

In addition, because approval by the United States Secretary of the Interior is required for this modification to the O'Shaughnessy Dam under Section 4 of the Raker Act of 1913, a full (federal) Environmental Impact Statement (EIS) is required under the National Environmental Policy Act (NEPA), as amended. Section 4 of the Raker Act states, in part: "all reservoirs, dams, conduits, power plants, water power and electric works, bridges, fences, and other structures not of a temporary character shall be sightly and of suitable exterior design and finish so as to harmonize with the surrounding landscape and its use as a park; and for this purpose all plans and designs shall be submitted for approval to the Secretary of the Interior." Exhibit A fails to recognize the City's responsibilities under Section 4 of the Raker Act, and incorrectly argues the new 5 foot diameter pipe is within the dam structure in Response 1-A on page 2. Federal permission is required as suggested in Response 14-A.

John Muir described Yosemite National Park's Hetch Hetchy Valley as a "grand landscape garden, one of Nature's rarest and most precious mountain temples." This proposal by the City & County of San Francisco to modify the O'Shaughnessy Dam is a further desecration of this "precious mountain temple." Indeed, there is only passing acknowledgement by the City and County of San Francisco that this proposed project would be taking place in Yosemite National Park. Because this proposed modification of the O'Shaughnessy Dam would occur in Yosemite National Park, in and around designated federal wilderness areas, for a six-month period a "significant adverse impact on the environment" may result from "drilling, blasting" and other heavy construction activities that include having a crane ("approximately 20 feet wide, 14 feet high, and about 30 to 35 feet long") on the dam for approximately five months [pp.7 and 12, Planning Department Response to Concerns, Exhibit A]. It should be noted that there is currently a 25-foot limitation on the length of vehicles permitted on the Hetch Hetchy Road. The PMND (p.22) states: "The project would not require the removal of substantial numbers of mature, scenic trees." This statement implies that, indeed, some "mature, scenic trees" are planning to be removed. The project proponents acknowledge that this is a "modification" of the existing structure (O'Shaughnessy Dam), not merely routine maintenance, and therefore a full EIR under (state) CEQA and a full EIS under (federal) NEPA must be performed.

Furthermore, increase in energy production will result from one of the stated purposes of this project, to "reduce head loss." Reduction in head loss means that more energy will be produced from the same amount of water. In the past, every time a project was done that increased energy production, the Department of the Interior (DOI) has required mitigation. There is no statement that the DOI will be asked to review this project for that purpose. Again, a full EIR/EIS would deal with these omissions. An increase of 6 megawatt in generation capacity at Kirkwood Powerhouse (from 124 to 130 MW) is certainly enough to require mitigation (Response 7 page 22 in Exhibit A).

Public Trust Doctrine applies: Furthermore, because of the recognized "public trust" doctrine regarding natural resources in California, the City and County of San Francisco is required under CEQA to consult with certain "trust agencies" like the California Department of Fish and Game and the University of California. Nothing in the record indicates that these required consultations occurred. [CEQA Guidelines, section 15086; and Yeates, p. 7, ibid]

Project is not justified from a public policy and financial perspective: Moreover, this proposed project is not justified from a public policy and financial perspective. This proposed project is akin to a major medical operation like a heart transplant being performed on a patient, when the only ailment described by the patient is an occasional heartburn that a little Pepcid AC could take care of. The proponents of the project acknowledge: "The new pipe and upper outlet would only be used exclusively when turbid water is detected at the bottom of the reservoir, approximately three percent of the time." [p. 7, Planning Department Response to Concerns, Exhibit A] The proponents further define "three percent of the time" to occur within a seven-month period "during late spring, summer, and early fall." [p. 10, Planning Department Response to Concerns, Exhibit A] Therefore, this new pipe might be used for as many as seven days out of the year [3% of 7 months (approx 30 days times 7 days/month times .03]. From a public policy and financial perspective, does it make sense to disrupt Yosemite National Park and to expend a significant amount of money (nowhere in any of the proponent's documents is the cost of this project set forth) for a turbidity event that might occur for only up to seven days during the year? We think not.

As mentioned above, the proponent's documents do not set forth the proposed cost of this project. As discussed in our appeal letter of March 10, 2003, [p. 2] a similar project had been contained in the SF PUC's Capital Improvement Program (CIP) in its 2001 edition, but that the January 2002 edition did not contain this proposed project. It is our recollection that this project was estimated to cost $12.5 million in the 2001 edition of the CIP. Recent conversations between the staff of the San Francisco Planning Department and another appellant, the Tuolumne River Preservation Trust, indicated that the project may cost approximately $3.2 million.

The proponents of this O'Shaughnessy Dam modification project state: "It is not the purpose of CEQA documents to justify the merits of the project being analyzed. Comments on the merit of the proposed project are not relevant for environmental review, but may be taken into account by decision-makers, e.g., the SFPUC, in their decision whether to approve the project." [p. 9, Planning Department Response to Concerns] Certainly, we believe the Planning Commission should have taken public policy and financial considerations into account in its decision making process. And, we respectfully urge the SF PUC and the San Francisco Board of Supervisors to take these public policy and financial considerations into account in making a decision whether or not to proceed with the proposed project.

Connection between this project and Capital Improvements Program project to enlarge the Sunol Valley Water Treatment Plant and cumulative impacts: The close nexus existing between this project and the CIP project to enlarge the Sunol Valley Water Treatment Plant to 240 mgd is well described by the Planning Department in Response 2-J page 8 and 9 of Exhibit A This close nexus requires that a full programmatic EIR/EIS be completed.

The close nexus requires this project and the "reliability projects" in the CIP to be dealt with together in a programmatic EIR/EIS since all are related and connected. The SF PUC uses the term "reliability projects" to mean those that provide backup or alternatives for existing projects. An example would be adding a pipeline parallel to an existing one. In our view, such projects also allow for expansion of diversion from the Tuolumne River as well as operational reliability. About half of the 77 CIP projects would fall into this group. Many of them are related to each other in that one relies on the other for its operation, such as an additional pipeline supplying an enlarged reservoir. These reliability projects add up to an extra take of 10 % of the entire average flow of the Tuolumne River every year for expansion of population of nearly 1.5 million people in the San Francisco water service area by the end of this century based on extrapolation of state Department of Finance population projections. In addition, there would be significant impacts on aquatic and terrestrial wildlife, campers, fishing persons, visitor aesthetics, wilderness values, and the numerous white water boaters and rafting outfitters who struggle to negotiate adequate flow in late summer, especially on weekends. There are huge cumulative impacts on both the Tuolumne River and on the Bay Area as a result of this project at the O'Shaughnessy Dam and the CIP's "reliability projects."

The Planning Department's Response to Concerns, Exhibit A, states that the "proposed project has been in the active planning stage for the last eight years." [p. 28] Therefore, because this project to modify the O'Shaughnessy Dam was planned long before the San Francisco voters approved Prop A ($1.6 billion revenue bond levy for seismic retrofits and expansion projects) in November, 2002, the necessity for this proposed project should be re-evaluated in light of the passage of Prop A. As discussed in our appeal letter of March 10, 2003, this proposed project would duplicate turbidity control (filtration) measures at the Sunol Valley Water Treatment Plant (SVWTP) authorized in the Capital Improvements Program approved in Prop A. Does it make sense from a public policy and financial perspective to complete the proposed modification of the O'Shaughnessy Dam for the purpose of turbidity controls when the improvements to the SVWTP will address these same turbidity issues? We think not.

The Planning Department's Response to Concerns, Exhibit A states: "The SVWTP project is a huge treatment plant expansion costing hundreds of millions of dollars that could be used to treat Hetch Hetchy water..." [p. 29; The proponent's assertion that the SVWTP improvements will cost "hundreds of millions of dollars" is repeated on p. 8] However, according to the CIP approved by the San Francisco voters in Prop A, and according to the current CIP [Appendix CIP-3, and p. 31 of the CIP], the SVWTP improvements are projected to cost $81,974,044 [in 2003 dollars] or $95,280,853 [in "escalated" dollars]. This is a far cry from "hundreds of millions of dollars" stated by the proponents of this O'Shaughnessy Dam modification project, which calls into question the project proponent's accurate considered of the situation with regard to the SVWTP improvements. [Please see attached Appendix CIP-3, and p. 31 of the CIP regarding projected costs of the SVWTP.]

Incorporation by Reference: We hereby incorporate, by reference, our appeal letter and attached memorandum of March 10, 2003, and our testimony on May 1, 2003 before the San Francisco Planning Commission into this appeal.

RESTORE HETCH HETCHY looks forward to appearing before the San Francisco Board of Supervisors regarding this appeal.

Sincerely,

Ron Porter Good
Executive Director
RESTORE HETCH HETCHY

To get involved in the effort to restore Hetch Hetchy, contact Restore Hetch Hetchy at: info@hetchhetchy.org, To get involved in the effort to restore Hetch Hetchy, contact Restore Hetch Hetchy at: info@hetchhetchy.org, P.O. Box 3538, Sonora, CA 95370. Telephone: (209) 533-4481.