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| An Amador Water Agency shows which parts of Jackson Creek will turn intermittent as a result of dewatering the Amador Canal. |
| Photo by: Jerry Budrick |
The lawsuit by Ken Berry states, "In particular, Petitioner (Berry) requests the court to compel the agency to maintain flows in the Amador Canal sufficient to maintain historic flows in Jackson Creek until adequate alternative mitigation measures are developed and implemented."
"I believe I'm going to win this lawsuit," Berry asserted, "because the water agency misstated the facts. They insisted that Jackson Creek would continue to be fed by springs and it wasn't true."
Berry was referring to the agency's preparation of an environmental impact report for the Amador Transmission Pipeline in 2004. "They never considered the creek drying up," he continued, "and that was the fatal flaw."
"I'm disappointed that we're involved in further litigation," said AWA General Manager Jim Abercrombie. "The last litigation cost the ratepayers $9 million in additional construction costs for the Amador Transmission Pipeline."
Agency officials have estimated that $9 million was added to the total cost of the Amador Transmission Pipeline by legal battles and actions required by legal decisions.
Following years of contentious litigation, the revised final environmental impact report for the pipeline was approved in August 2005. Included in the plan was installation of a small diameter pipeline that would continue to carry water to customers located along the right of way of the dewatered 23-mile Amador Canal. Not included at the time was a specific plan for final location of the small pipeline or a plan to bury the pipeline following installation.
In the fourth addendum to the RFEIR, agency directors voted to approve a plan to offer landowners along the canal four options that would either leave the small pipeline exposed or bury it, either in the bottom of the canal or in the berm alongside the canal, then, if buried, to leave the canal open or fill it.
"Many property owners are interested in having the water pipe covered in the canal alignment," states an Aug. 14 agency staff report. Indeed, many letters to that effect have been sent to the agency by landowners. Filling the canal could result in the ancillary benefits of road creation, weed control and mosquito abatement on affected properties, though Berry doesn't see the benefits as outweighing detrimental consequences.
Filling the canal is an action that Berry believes will dramatically change the runoff patterns and distribution of wetlands along the canal route. "It is not trivial," Berry said in an Aug. 13 letter to the agency, "how the existing canal is closed and the four options were not considered in the RFEIR, as amended by Addenda Nos. 1, 2, and 3."
The lawsuit challenges agency use of an addendum to the RFEIR as a vehicle to achievement of its goal. Berry alleges that either a supplemental or subsequent EIR should have been required.
Pertinent code (California Code of Regulations, Title 14, Section 15162) presents three conditions that would require the far more extensive documents and process involved in the creation of either:
- Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects;
- Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or
- New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the negative declaration was adopted, shows any of the following:
Berry's lawsuit alleges that the proposed project changes meet all three conditions:
- Storm water runoff will take new courses and have not been analyzed in the RFEIR. Filling the canal will also change the distribution of wetlands associated with the canal.
- Circumstances have changed, in that there is a 2007 order to the Jackson Wastewater Treatment Plant from the Central Valley Regional Water Quality Control Board, which is a subdivision of the state Water Resources Control Board. The order requires the city of Jackson to limit the amount of effluent in Lake Amador to a maximum of 5 percent of the total water volume. Water in Lake Amador comes from Jackson Creek, the flow of which will be adversely affected by dewatering of the canal.
- New information has been submitted in the form of rainfall charts, Amador Canal flows and Jackson Creek flows. This is information that was not available previously. Berry alleges that it contradicts the projections and predictions of the RFEIR and its first three addenda.
Berry and the Friends of Jackson previously warned the agency of the possibility of a lawsuit over agency approval of Addendum No. 4 to the Amador Pipeline RFEIR. In a letter dated Aug. 14, they wrote, "Understand that lawsuits based on compliance with CEQA (California Environmental Quality Act) are often successful if they are based on the failure to disclose information that is required to be disclosed and/or if the public agency has not proceeded according to law."
"The agency wanted to give the landowners along the Amador Canal options to fill in the canal or leave it open," Abercrombie lamented. "It's unfortunate that this lawsuit may prevent us from doing so."
The first official hearing on the lawsuit will be held Oct. 30 in Amador Superior Court, with Judge Susan Harlan presiding. This will be a hearing on whether to "show cause."
Four options are available: Harlan could make a clear decision one way or the other, either granting Berry's request or turning it down; she could decide that the agency must show cause, meaning providing documentary evidence of why Berry should not prevail; or, she could require Berry to provide additional information.
| Jerry Budrick |