Politics & Government

WATER WAR: Council Concerned About Feds' Opposition to Flume, Approves More Cash for Consultant

Update 9:20 p.m. Council members expressed concern Tuesday night about the status of the Whitewater Flume that diverts water to Banning Bench and the Water Canyon, and they voted 4-0 to approve more than $80,000 in consultant fees as the city continues discussions with the Forest Service and other agencies.

"Is the flume on the chopping block?" Council member Don Peterson asked Banning Public Works director Duane Burk, who answered, "Yes."

The Forest Service wants the flume removed, which would threaten Banning water rights that date back more than a century, Burk told the council.

"Percentage-wise, do you think we're going to win this thing?" Peterson asked City Attorney Dave Aleshire before the council vote.

"We are going to be preparing a closed-session memo to talk about the pros and cons," Aleshire said. "It's certainly a fight we really need to win. But I think ultimately the best strategy is going to be one that doesn't involve us in litigation, it's going to be working with the various entities in a cooperative manner.

"We need at this point to be understanding what the Forest Service is really looking for and we need to be considering, once we can identify what they're looking for, we have to figure ways to accommodate that," Aleshire said. "Getting into litigation, and evaluating your chance of success, we may ultimately get there, but I think the administrative path we want to go down would not get us into that sort of a fight.

"I think our legal rights to these water rights are very clear, we just need to figure out what the Forest Service is trying to accomplish in this process and try to figure out a way of meeting that."

Diverted flume water serves 200 customer connections on Banning Bench and adds to city water reserves, Burk said. The flume has deteriorated over the past 20 years due to lack of maintenance by Southern California Edison, and the City wants to rebuild the water and hydroelectric power project.

"The flume is huge, this is a pre-1914 water right," Burk said. "It is a huge water right as it relates to the Williams Act . . . It really is an established water right. . . . I think we stand strong on that case.

"Unfortunately one of the issues is the Forest Service has never argued that we have a water right. They argue you can't take your conveyance system through their lands because they speak for the lands. I'm not sure what that means but we have to be considerate to that."

Posted 2:15 p.m. The Banning city council will be asked Tuesday night to approve an $88,435 amendment to a services agreement with a consultant for more work on a restoration project for the Whitewater Flume that diverts water to Banning Water Canyon, according to city staff.

The total contract for consultant work on the flume restoration project is "not to exceed $168,035," the Oct. 22 council agenda states.

"It is necessary to amend the professional services agreement with Roy McDonald, Environmental and Regulatory Consultant to assist the City with meeting Goal #3, Infrastructure and City Facilities, Action Step E-3, Restoration of the Whitewater Diversion Pipeline Flume, of the City's Strategic Plan . . . ," Duane Burk, Banning director of Public Works, says in a recommendation to the Banning Utility Authority dated Oct. 22.

The City of Banning has faced opposition on flume restoration details from the Forest Service and the Federal Energy Regulatory Commission, according to city staff.

Background on Tuesday night's recommendation includes:

- On Jan. 8, 2013, the Banning Utility Authority approved a $56,000 services agreement for work including "assisting the City with a United States Forest Service Special Use Permit for Fiscal Year 2013."

- On Jan. 15, 2013, the Forest Service issued a denial letter stating the proposal submitted by the City was not consistent with a federal Land Management Plan.

"Your proposal would convert the water works associated with the San Gorgonio Hydroelectric Project to a water supply project," Forest Supervisor Judy Noiron said in the Jan. 15 letter.

"As described in the LMP (Land Management Plan), the Whitewater River area is managed to support 24.2 miles of an eligible Wild and Scenic River. In addition, the Whitewater River supports the character of the San Gorgonio Wilderness," Noiron said.

"The San Gorgonio Wilderness is in close proximity to the proposed location of the three diversions," Noiron said. "The wilderness is one of the most heavily used in the nation. . . . 

"In summary, your proposal is not accepted because it is inconsistent with the Land Management Plan, incompatible with the purposes for which the lands are managed, and not in the public interest," Noiron said. "Thank you for your time. If you have further questions, please contact Jerry Sirski, Forest Special Uses Program Manager at 909-382-2887."

- On March 14, 2013, city staff met with representatives of the Forest Service, Southern California Edison, Banning Heights Mutual Water Company and the San Gorgonio Pass Water Agency in San Bernardino.

"It was then determined it was necessary to go forward with the FERC," according to city staff.

- On April 9, 2013, the Banning Utility Authority approved additional services that included assisting the City with the application process of the Federal Energy Regulatory Commission power license.

- On June 5, 2013, the Federal Energy Regulatory Commission dismissed the City's application for licensing.

The FERC's order dismissing Banning's license application notes:

"On May 7, 2013, the City of Banning, California filed an application for a license for the proposed Whitewater Flume Water Power Project No. 14520-000.

"The proposed project would be located on the San Gorgonio River in San Bernardino and Riverside counties, California. Banning seeks a license to operate and maintain project facilities currently under a license issued to Southern California Edison Company for the San Gorgonio Hydroelectric Project No. 344. . . . 

"The San Gorgonio Project occupies approximately 246 acres of federal lands administered by the U.S. Forest Service within the San Bernardino National Forest."

- On June 14, 2013,  the Forest Service issued a letter to Southern California Edison regarding the Special Use Permit that expired Dec. 21, 2012 "and was terminated, asking for a plan for removal of the Burnt Canyon Pipeline."

More city requests and meetings followed.

Summing up his recommendation, Burke states:

"As a result of the numerous meetings with Southern California Edison, Forest Service, FERC and the Participating Entities (Banning Heights Mutual Water Company and the San Gorgonio Pass Water Agency), it has been determined that additional services are required to continue the Restoration of the Whitewater Flume Project. . . . 

"The full amount is available in the Water Capital Facility Account No. 661-6300-471.90-78 to fund the First Amendment to the Professional Services Agreement with Roy McDonald, Environmental and Regulatory Consultant. The total contract is for an amount "Not to Exceed" $168,035.00 unless otherwise approved by the Banning Utility Authority."

The Oct. 22 city council agenda and staff report on the flume restoration amendment are at this link: 

http://banning.ca.us/ArchiveCenter/ViewFile/Item/1002

City of Banning photos of the flume are at this link:

http://banning.ca.us/DocumentCenter/Home/View/749

The council meeting is scheduled to start at 5 p.m. Tuesday at 99 E. Ramsey St.


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