Merced agencies sought state approval to clear stream beds for more than five years before last winter’s floods. Now they’re suing.

November 28, 2023
Jesse Vad, SJV Water
by Jesse Vad, SJV Water
Water surrounds a neighborhood in western Merced after Bear Creek overflowed its banks during a Jan. 10, 2023 storm. CITY OF MERCED
Jesse Vad, SJV Water
Jesse Vad, SJV Water

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A string of emails appears to show that one state agency stood in the way of stream channel maintenance for more than five years, which may have led to flooding that caused severe damage in Merced County, according to a recent lawsuit. 

The emails begin in 2018 and go back and forth for years between several Merced agencies  – seeking a permit agreement to clear stream beds of the Black Rascal, Bear and Miles creeks – and the California Department of Fish and Wildlife (CDFW.) 

The emails show repeated warnings by CDFW that maintenance work could not be done without a permit agreement. Then, after 2023 floods destroyed homes, businesses and farmland, at least one email suggests staffers at CDFW sought to shift blame for the delayed channel work onto local agencies.

The emails are contained in a lawsuit filed against the CDFW on behalf of the City of Merced, a local elementary school and 12 agricultural groups. All the plaintiffs took significant damage from flooding after water backed up in clogged waterways and broke through, or overtopped creek banks and levees. 

Flooding from Miles Creek damaged nearly every home in the small, rural town of Planada. 

This isn’t the first time

The CDFW oversees all natural waterways in the state and determines what maintenance can be done. It requires permit agreements for maintenance on those waterways. 

After this year’s floods, allegations of significant delays by CDFW were made by residents, farmers and local officials. They alleged the process to get required permit agreements dragged on for years, blocking necessary flood control maintenance. 

“I’ve seen the records, I’ve seen how they stalled and delayed it,” said Mick Marderosian, lead counsel for the plaintiffs suing CDFW. “I have hired engineers, hydrologists, and they tell me straight away that if these channels were cleaned like they should have been, there would have been very little, if any, flooding in January of 2023.”

Merced County and CDFW spokespeople declined to comment for this story citing ongoing litigation. No one from Merced City responded to repeated requests for comment.

This isn’t the first time these waterways have flooded due to mismanagement, Marderosian said.

He successfully sued Merced Irrigation District (MID) for flooding on the same waterways in the late 1990s. In 2006, he again sued MID, the County and City of Merced over flooding and settled for a “significant” amount of money, he said. 

State delays

This time, it’s not local agencies that are at fault, according to the legal complaint. The County of Merced, the entity responsible for seeking permits from CDFW for maintenance on these waterways, made a concerted effort to obtain permits, said Marderosian. 

Marderosian obtained copies of emails starting in 2018 between Merced County staff and the CDFW, per the California Public Records Act. 

The emails Marderosian obtained show the county tried to do flood prevention work but was thwarted by the state, he said.  

The Merced Streams Group, a collaborative made up of county, MID and Merced city staff, oversees maintenance work. The problem began in 2018 when a Streams Group staff person emailed the CDFW about debris removal work. Even back then, overgrowth and garbage had reduced the carrying capacity of multiple streams.

The Merced Streams staff person did not realize the previous permit agreement had expired and that email set off a flurry of questions from the CDFW which quickly deemed the debris removal work a violation. 

That triggered a back and forth that would continue nearly five years with no resolution. 

Meanwhile, channel clearing work was halted and weeds, shrubs and garbage continued to build up in the stream beds.

“Currently we are very busy”

Merced County consultants submitted a channel clearing application in April of 2019 for a 10-year routine maintenance permit agreement for multiple waterways, including the Miles, Black Rascal and Bear creeks as well as other creeks, tributaries and offshoots. The application was marked “urgent.”

CDFW staff initially rejected the application, citing insufficient information, according to documents provided by Marderosian. 

In May of 2019, Joe Giulian, Deputy Director of Merced County’s public works-roads division at the time, emailed CDFW asking how much time it would take to get a complete application notice after county staff supplied the additional information. 

Heather Rodriguez, an environmental scientist with the CDFW responded, but didn’t give Giulian an answer, only stating the department’s normal 30- to 60-day timeline doesn’t apply for a 10-year application. 

“I am not able to give you a date on when a notice of completion will be able to be issued as it is based on mine and managements workloads,” wrote Rodriguez in an email to Giulian. “Currently we are very busy and being summer do have planned some vacation time.” 

In August, 2019, a county consultant notified the CDFW of the county’s submission of its final response to the state’s request for more information. 

Three months later the CDFW wrote back saying the notification was deemed complete and that staff would draft a permit agreement. Maintenance work was still prohibited, however, until the permit agreement was complete, the state warned in its email. 

A permit agreement, though, wasn’t forthcoming.

What follows is years of back and forth revisions, more information requests and meetings. Throughout that time, county staff regularly reached out to CDFW asking for updates, sometimes apparently receiving no response back. 

An electrical substation and other industrial buildings in west Merced were submerged by flood waters when Black Rascal Creek, at right, breached its banks during a rainstorm on Jan. 10, 2023. CITY OF MERCED

Changing tone

It isn’t until after the floods in January, 2023, that the tone of emails changes. California Office of Emergency Services (OES) staff emailed CDFW to make sure the City of Merced could get started on debris removal and levee repairs without a permit agreement. 

CDFW staff responded to the city, cc’ing OES, stating that work could be done under an emergency provision.

In February of 2023, internal CDFW emails show Julie Vance, a regional manager, agreed to sign the cover letter for Merced’s long sought permit agreement, which had been languishing for five years. 

Linda Connolly, a CDFW supervisor, expressed concern over who would be blamed for the flooding. In an email to Vance, Connolly states she had told Merced County staff they could sign a draft permit agreement if it was taking too long and then add amendments later. 

“Not sure why they didn’t draw the line at some point and do that,” Connolly writes in the email. “They aren’t talking so much now about how they’d been willing to just sign the last draft they got and start work before the winter. I didn’t know if that’d be good to know when talking to people who point fingers.” 

But the county was repeatedly notified that work could not be done until the permit agreement process was completed, according to other CDFW emails. 

Marderosian wasn’t surprised by the change in tone by CDFW.

“They know liability is coming. Because all of their communications up to that point always warn the county, ‘you can’t do anything without an agreement,’” said Marderosian. “It almost looks like the Department of Fish and Wildlife is blaming the county of Merced for just not rolling over and agreeing to what they want.”  

Since the floods, work has been done under the state’s emergency provision. To this day, though, it is still unclear whether CDFW has issued a permit agreement. 

Still digging out

Meanwhile, residents are still cleaning up.

Ezio Sansoni, an 85-year old small family farmer, is a plaintiff in the lawsuit. Sansoni runs a 200-acre almond farm and has been farming all his life, save a five year stint at University of Notre Dame. 

About 77 acres of Sansoni’s property sits between Black Rascal and Bear creeks. When the water built up, it broke through a levee and flooded Sansoni’s orchards. The water dumped silt across his land and heavy equipment used to protect nearby McSwain Elementary School caused other damage. Sansoni doesn’t know yet how much all the repairs have cost him. 

“We have a system that was built in the 1920s. And a system that has worked very well, except for the fact when it’s ignored,” said Sansoni. 

He doesn’t have any faith in the CDFW and believes the department isn’t prioritizing the protection of people. 

“Maintenance of the old system and upgrading of the old system without diminishing its capacity is the key to the protection,” said Sansoni. “This problem will continue and persist.”

Flood water rushes through a Merced County almond orchard following storms in January 2023. COURTESY MICK MARDEROSIAN
Jesse Vad, SJV Water

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