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.