Lawsuit filed over S.J. project
Water district blames state for excessive bureaucratic oversight
Citing the lessons learned from the Coyote Creek flood that caused $100 million damage in San Jose four months ago, the Santa Clara Valley Water District has filed a lawsuit against state officials, claiming they are threatening the completion of a flood control project nearby with too much bureaucracy.
The $35 million project is designed to provide 100-year flood protection to 2.2 miles of Upper Berryessa Creek between North San Jose and Milpitas, reducing flood risk to 624 properties and Santa Clara County’s first BART station: the new Milpitas station scheduled to open in December.
The creek, in a heavily urbanized area, didn’t overflow its banks during this winter’s heavy rains, but every 10 to 20 years it does. The last big floods were in 1998, 1983 and 1982.
In October, contractors working for the Army Corps of Engineers began construction on a project approved in 2014 by Congress to widen its channel and install other flood protections.
But in April, state water regulators rescinded an earlier approval they gave in March 2016. The regulators, working for the San Francisco Bay Regional Water Quality Control Board in Oakland, said the two agencies overseeing the project, the Army Corps and the Santa Clara Valley Water District, had to restore 15 acres of wetlands or 15,000 feet of creek — nearly three miles — somewhere else in the South Bay to offset the harm to the environment from the project.
Calling that decision unfair, illegal and likely to cost millions of dollars — and risking a shut-down of construction before the work is
finished in December — the water district sued the regional water board June 15 in Santa Clara County Superior Court.
“It’s irresponsible and beyond the water board’s authority to change the rules midstream,” said John Varela, chairman of the Santa Clara Valley Water District.
The lawsuit claims that the regional water board violated the California Environmental Quality Act, a law signed by former Gov. Ronald Reagan in 1970 that requires environmental impact reports for major projects to allow public input and review of noise, air pollution, traffic, impacts on wildlife and other effects.
Because the regional water board already had signed off on the water district’s environmental impact report, it can’t come back later and make changes and new demands, the water district said. Also, because the requirement to restore 15 acres or 15,000 feet of wetlands and creeks somewhere else will have environmental impacts, the regional board needs to conduct an environmental review for that work, the lawsuit argued.
Although work is continuing on the project, Army Corps officials in the Bay Area have said in writing that the added cost could cause Army Corps officials in Washington, D.C., to halt work.
Representatives of the regional water board did not return requests for comment on the lawsuit Friday. But they said last month that they always told the Army Corps and the water district that restoration work was likely to be required — and that they believe construction will be completed in time for the Milpitas BART station opening in December.
Environmental groups say the regional water board indicated last year that it was likely to require restoration work. They also say the flood control project is too traditional a design — a concrete channel — without enough features to help restore natural processes and bring back fish and wildlife.
“We absolutely support flood control,” said Carin High, co-chair of the Citizens Committee to Complete the Refuge, an environmental group based in Palo Alto. “But look around the edges of the bay. We have very little habitat left. It provides community benefits, like water quality and fisheries. A creek is not just flood control.There are all these other functions of creeks that contribute to the health of the bay and support wildlife.”