Feds sued over Stanford's Searsville Dam

Lawsuit claims two water diversions are illegal

Environmental groups who have an ongoing lawsuit against Stanford University for its diversion of water from endangered species habitat into Searsville Dam have filed a second suit against the National Marine Fisheries Service.

San Francisco-based Our Children's Earth and the Ecological Rights Foundation filed the lawsuit on Tuesday, March 11, in U.S. District Court in San Francisco. Defendants include U.S. Secretary of Commerce Penny Pritzker and Marine Fisheries Regional Administrator Rodney McInnis, according to the complaint.

Environmental groups have long asserted that Stanford's diversion of water from San Francisquito Creek and related tributaries negatively impacts endangered species, including steelhead trout and the red-legged frog. Beyond Searsville Dam and others complained to the Marine Fisheries Service last year about the dam. The service confirmed it was looking into investigating whether the impediment to the fish constitutes a "taking" of the species, which would violate the Endangered Species Act.

Our Children's Earth and the Ecological Rights Foundation filed suit against Stanford on Jan. 29, 2013, asking the court for an injunction and declaratory relief to stop the university from its water diversions. Stanford uses the water for irrigation and non-potable uses. It gets its drinking water from Hetch Hetchy Reservoir in the Sierras.

The latest lawsuit claims two water diversions downstream from Searsville Dam that are operated by Stanford -- the San Francisquito pump station and the Los Trancos Diversion facility -- are illegally diverting the water. The lawsuit claims the Marine Fisheries Service did not consider how the dam, reservoir and booster pumps add to and exacerbate adverse impacts when it approved the diversion in 2008.

The suit also charges that the Marine Fisheries Service failed to meaningfully analyze the extent of the harm that the pump and water diversions would have on the steelhead population, and how the harm translates into impact on the overall population of the fish in the San Francisquito Creek watershed.

Marine Fisheries also did not establish the steelhead's baseline population and consider any cumulative effects of multiple water diversions in the watershed over time or how the diversions would affect species recovery, according to the lawsuit.

The lawsuit comes on the heels of a recent examination of San Francisquito and Corte Madera creeks by an expert and attorney, who were examining the creeks and dam as part of "discovery" for the original suit against Stanford.

For that lawsuit, the university agreed to allow for the organizations' expert to inspect portions of the creeks near the dam during the summer, fall/winter and spring seasons beginning last August. The expert was to assess the impacts of the water diversion on the endangered species habitat. The steelhead trout, for example, use the creek to travel to spawning areas, and too little water can cause them to be caught in pools and die, according to biologists.

Readings taken by an expert during the most recent sustained rainfall on Feb. 28 showed some significant habitat degradation, lead attorney Christopher Sproul said. The environmental groups claim they documented additional harm that the Marine Fisheries Service failed to take into account when it approved the two downstream diversions.

"We want the National Marine Fisheries Service to do its job and enforce the Endangered Species Act," Sproul said in a statement. "Stanford should no longer be authorized to take water out of these two diversions, particularly in the face of the worst drought in California's history. The critical ecological function of steelhead habitat for a quarter-mile below the dam has been crushed and habitat further down the creek degraded, placing the Palo Alto population of steelhead at great risk."

Sproul told the Weekly last week that he and the expert found "zero flow" reaching Corte Madera Creek below Searsville, with the dam trapping all of the flow during this critically dry year. Steelhead require sufficient flow to bring them to spawn.

"Once their life cycle is lost, it's a big loss to the species. Fish can't live on dry rock. The creek is rendered useless now," he said.

Stanford spokeswoman Jean McCown refuted the environmental groups' claims. In February, she told the Weekly that the university continually monitors the creek and wildlife.

"There are no water diversions occurring at Searsville," she said in an email. "Due to the drought, there is as little water in the watershed as anyone at the Jasper Ridge Biological Preserve can ever remember. There is little water in the creek either above or below the dam and there is nothing Stanford can do to change that, nor is the dam of any consequence under these conditions."

Stanford has recently been studying what to do about Searsville, with the reservoir about 90 percent silted in. Options include dredging the reservoir or allowing it to fill in and creating other sources for water diversion, among others.

McCown, who is on the advisory task force looking into the many alternatives for Searsville, said last year that the federal investigation would not sway Stanford from taking a "responsible approach" to seeking a solution that would satisfy the many concerns the project poses. The university has been working regularly with the Marine Fisheries Service on the project, but the investigation is coming out of a separate law-enforcement branch, she said.

Stanford is also currently pursuing a robust water conservation plan. Last month its experts held a panel discussion regarding its ongoing conservation efforts in the face of the current and future droughts.

A spokesperson for the Marine Fisheries Service could not be immediately reached for comment.

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Posted by resident 1
a resident of Adobe-Meadow
on Mar 12, 2014 at 11:08 am

This problem is directly related to the flooding at the lower end of the creek. If no water is coming down then you have salt water intrusion moving up stream and build up of sludge. If you go look at the end of Embarcadero you can see it. This flattens the bottom end at the bay and allows water to flood upstream during storms at high tide periods.
The lawyers need to coordinate with FEMA, the Water Quality Board, County of Santa Clara Flood Control, and Army Corps of Engineers who are working the bottom of the bay issues. Everyone who participated in the planning of the flood control needs to put this whole issue together.
This is more than an environmental issue - it is a legal issue affecting the downstream residents and businesses.

The divide and conquer strategy needs to end here.

Like this comment
Posted by interesting
a resident of Gunn High School
on Mar 12, 2014 at 1:57 pm

@ resident 1

Thank you for your enlightening comments. It is amazing how broad the repercussions actually are to the things we do.

Like this comment
Posted by Marie
a resident of Midtown
on Mar 12, 2014 at 9:26 pm

Marie is a registered user.

And why aren't they looking into the Regional Water Board's contention that flood abatement measures should start in the headwaters of San Francisquito Creek? Notwithstanding the current drought, provisions need to be made to divert floodwaters at the source during flooding. I can't see that Stanford or the Ecological Rights Foundation are even considering any cooperation with the efforts to reduce the harms of flooding on E PA, MP or PA. Such diversion might have the benefit of providing water for Stanford irrigation and providing water after the flood for the trout.

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Posted by resident 1
a resident of Adobe-Meadow
on Mar 12, 2014 at 10:34 pm

I am looking at the Santa Clara Valley Water District year 2013 mailing you get with your utility bill. It is providing direction on the management of water ways to prevent flooding. Adobe Creek and San Francisquito Creek are listed as designated flood control creeks for our area. Adobe has been rebuilt so that it is now a very safe creek. They bring in tractors to remove the build up of vegetation so there is good flow of water.

We know that San Franscisquito starts at Searsville lake / dam which needs the removal of dirt and sludge so it can contain water. We also know that Stanford needs to build some holding pools at the top for overflow.
Much has been done on reporting that trash needs to be removed from the mid and lower end. We have to keep the whole creek open and clean.

The problem for the people at the bottom is that since there is no downward flow of water there is a dirt and sludge buildup at the bottom which flattens the area. We have the upward transition of salt water, and during a storm with high tide the water can travel upward and cause flooding in residential areas.

There are a lot of agencies and a lot of vested interest in strategies both at the top and bottom of the creek. I think at this point there is enough attention on the matter that the creek has to be viewed as a total conservation effort top to bottom.

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Posted by Beyond Searsville Dam
a resident of Another Palo Alto neighborhood
on Mar 15, 2014 at 7:24 pm

There are several major flaws with the Stanford statement reported in this article:

"There are no water diversions occurring at Searsville"
"There is little water in the creek either above or below the dam and there is nothing Stanford can do to change that, nor is the dam of any consequence under these conditions."

1) There doesn't need to be any diversions occurring from Searsville (to campus) for it to be dewatering or reducing flows in the creek downstream. The reservoir is nearly full right now, so Stanford has already captured upstream flows and is preventing this stored reservoir water from becoming flow downstream. Stanford has no bypass flow measures to release water from the dam for protected fish and wildlife, as multiple parties have pointed out is required by law.

2) Most troubling is this statement that "there is nothing Stanford can do to change that, nor is the dam of any consequence under these conditions." Nothing could be further from the truth. To start, Stanford has multiple intake pipes within the reservoir that CAN be used, along with the existing valves on the downstream side of the dam, to release flows captured in the reservoir to benefit fish and wildlife downstream. They could release water downstream right now, but they choose not to release flows downstream. Secondly, the dam and reservoir are of major consequence to downstream flows under these conditions. As noted above Stanford CAN release flows downstream even after the reservoir drops below the spillway elevation by way of multiple submerged intake pipes and downstream valve. In addition, the stagnant Searsville Reservoir causes the unnatural evaporation of huge quantities of water that would otherwise be available as flow downstream. Finally, there is flow entering Searsville, both surface and subsurface, that is not being release downstream, is being evaporated, and used to fill the reservoir from last summers drawdown of water to irrigate their golf course. By refilling the depleted reservoir each year Stanford captures and prevents flows downstream… this is especially problematic during drought years like this when few rainfall events occur and most is trapped in the reservoir with no bypass flow occurring.

Our group and others have been advocating for Stanford to undertake a Searsville study of alternatives and take a "reasonable approach" to finding a solution for 15 years. We hope the University will make the right decision to remove this unnecessary and inefficient dam this year. We also hope that all sides will utilize and convey the known facts when describing impacts caused by the dam.

Thanks Palo Alto Online for in depth ongoing coverage of this critical issue for our region!

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Posted by resident 1
a resident of Adobe-Meadow
on Mar 15, 2014 at 8:44 pm

Excellent response above. Since the creek is a listed environmental county
property I think the county should be exercising some requirements here since they have to work with FEMA on the downward portion of the creek.
Time to focus on the Santa Clara Valley Department of Water project manager for the creek.

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Posted by resident 1
a resident of Adobe-Meadow
on Mar 22, 2014 at 11:32 am

The SJM reported that the SCVWD is going to let out the water on Anderson Dam because it is not up to earthquake standards. The dam will be rebuilt. Since we are on the fault line it is important to make sure that all of the systems can withstand a major quake.

I think that would be a good approach to the Searsville Dam since it is reportedly not working correctly. There has to be a higher agency that is responsible for the creek from top to bottom.

However - the US Army Corps of Engineers do not want to widen the bottom of the Guadalupe River in Alviso. Note that the Guadalupe river is a flood control project in San Jose but somehow turns into a different animal in Alviso.

I suggest you call up the SCVDW and talk to the project Manager for the creek. They are responsible from top to bottom so can maybe provide advice.

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Posted by resident 1
a resident of Adobe-Meadow
on Apr 9, 2014 at 1:08 pm

There is an excellent article on Searsville Dam in the SF Chronicle today - 04/09/14, Section E.2. It provides the numerous positions on how to approach this topic.
What is missing is the hierarchy of who is the agency with the most authority on this topic?
The Creek is officially listed as a SCVDW flood control creek and has a project manager appointed to the creek.
It is a FEMA designated creek for the lower landowners for flood insurance.
It is the border between Santa Clara County and San Mateo County.
Yes - it originates on Stanford property but it was there before Stanford assumed ownership of the property.
It is an asset for the State of California.
So why isn't the proper agency stepping up and taking control of the situation?
There is a hierarchy of who is in charge - and it is not Stanford to use the water to irrigate their golf course.

Like this comment
Posted by resident 1
a resident of Adobe-Meadow
on Apr 9, 2014 at 5:43 pm

Another thought on this is that many Stanford employees live in the 100 year flood zone so are required to have flood insurance. SU employees are being hit with an large expense so the SU golf course can be watered.
Likewise residents of PA are required to have flood control insurance based on the San Francisquito Creek proximity and history. This is very wrong from whatever angle you look at it.

I live near Adobe Creek which has been updated and is maintained and kept clean. I do not see Adobe Creek flooding at this time. I still pay the flood insurance which is very expensive.

So that raises the question as to what part FEMA has in all of this - they should be trying to correct this problem based on the number of people that are adversely affected by this. A lot of money is being paid to a lot of insurance companies for flood insurance. I am wondering if there is some deal going on here. Put it on the table. Put it out there - too many people are affected by this. We already know that FEMA has no money at this time.

Like this comment
Posted by resident 1
a resident of Adobe-Meadow
on Apr 12, 2014 at 2:18 pm

Articles in the SJM this weekend - there will be a El Nino this winter - projection by NOAA and SU Studies. In same paper is article about flood insurance which will have a rise in cost of 18%.
That foretells what is in store for everyone, including employees of SU.
This summer there needs to be a concerted effort to clean up Searsville Lake at the dam, create holding pools at the top of the SU property, and clean up the creek of overgrown vegetation.
PA weekly - please follow up on CC discussions with Stanford concerning this topic.

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Posted by resident 1
a resident of Adobe-Meadow
on Apr 23, 2014 at 8:32 am

Article in SJM 04.23.14 concerning the Pinto Lake in Watsonville. Due to increase in sediment there has been an increase in the growth of algae which has a negative affect on the water released into the ocean as well as the animals and fish who are dependent on the lake water.

It should be noted that the growth of algae was a major negative effect in Golden Gate Park and they have invested in effort to remove the algae and control further growth.

SU's position on refusal to remove the sediment build up in Searsville Lake could possibly be the result of algae build up. That should be a topic of discussion with the SCVWD as well as other government agencies.

Like this comment
Posted by Daniel
a resident of Portola Valley
on Sep 11, 2015 at 12:16 am

I would like to know the current progress in this long term litigation processing for the Searsville Dam.

Sorry, but further commenting on this topic has been closed.

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