California Water

California Water Initiative
Summary by Chuck Bonham, TU California Counsel

TU launched the California Water Initiative in 2000 to protect and restore California’s rivers and streams that are not part of the giant plumbing system of the state and federal water projects.  Many of these rivers are being dewatered by diversions governed by California’s version of western water law.  The cornerstone of TU’s work is state water law reform and its simple goal is to put more water instream for fish – particularly the severely stressed salmon and steelhead populations.  We have achieved many significant victories in the last two years, and we are poised to expand our campaign based on bringing sound science and legal expertise to bear on complex state water law questions in California.  In the next year and beyond, we will focus on four main areas:

  • Implementing newly state-endorsed specific guidelines applicable to all water diversions that affect fisheries, focusing on every significant salmon and steelhead stream from San Francisco to Eureka, starting with the Navarro and Garcia Rivers;
  • Forcing comprehensive water management consistent with the public trust doctrine that fully addresses water use monitoring, compliance with water rights, and enforcement against illegal diversions;
  • Develop and launch a public education and media campaign around the impact that small diversions are having on the state’s salmon and steelhead populations; and,
  • Continue to work to establish a functional private water acquisition program in the state.
The California Water Initiative
Despite the public focus on the big water projects in California, approximately 25 percent of all the water in the state that is diverted for agricultural, municipal, industrial, or personal use is done so under the so called “prior appropriation doctrine” and governed by the State Water Resources Control Board (SWRCB).  These small and large diversions are having profound impacts on the state’s rivers, and in particular the effort to restore salmon and steelhead.  With California’s population project to grow by 50 percent in the next two decades, the impacts of the current system on fish and wildlife are likely to grow as well.

TU has since become a leading legal, science, and policy advocate focused on California water law and its effects on trout, salmon, and steelhead.  Our focus areas have been the Russian River, Lagunitas Creek, and the Yuba River, and we have secured significant accomplishments in all three watersheds.  For example, in the Russian River before TU’s involvement, no single policy based on science existed to guide the SWRCB – California’s water rights permitting agency – on fish matters when it issued water rights.  Now, because of TU’s pressure, the California Department of Fish & Game and NOAA Fisheries have published specific guidelines relating to water diversions that affect fisheries.  The SWRCB has tentatively agreed to abide by these guidelines – a huge step in protecting fish from having to navigate dewatered rivers and streams. 

Lagunitas Creek
In the Lagunitas Creek watershed – arguably the best coho recovery effort in all of California – we put our legal expertise to work once we discovered that the North Marin Water District sought to change its water rights in the creek without conducting an environmental review under the California Environmental Quality Act.  We spent the summer of 2002 in tedious – but ultimately fruitful – negotiations with the Water District and our partners the Sierra Club and the Tomales Bay Association, producing a precedent setting and comprehensive settlement agreement for protection of coho.  Among other things, the settlement agreement requires the Water District to dedicate additional Lagunitas Creek water for instream use for the purpose of preserving or enhancing wetland habitats and fish and wildlife resources in the creek. 

Yuba River
On the Yuba River, TU has served as the lead legal voice for a collection of conservation groups in state court defending the SWRCB’s authority to re-open water users’ water rights and modify instream flow requirements to better protect the river’s wild Chinook, which are the Central Valley’s best, last remaining wild Chinook populations.  Recently, we achieved a major victory in state court when the court instructed the SWRCB to reconsider its decision to reduce flows in the river temporarily because of the energy crisis in 2000.  However, our work is not yet complete in the Yuba.  In fact, the Yuba case may go to the state supreme court over the public trust doctrine. 

Other Areas
In addition to progress in these watersheds, we have increased our presence on water rights issues in the Napa River watershed, on the eastside of the Sierra in the truly remarkable Mammoth Creek watershed, and we are continuing to pursue several water right purchases to put more water instream for this state’s outstanding fisheries. 

Goals 2003- onwards
In the last two years, TU has built a solid foundation upon which to pursue broad policy reform and river specific flow protection and restoration strategies.  In the next three years, TU will pursue a program that includes four major components:

  1. Implementing the Fish Flow Guidelines for water diversions;
  2. Addressing water use monitoring and water rights enforcement through the public trust doctrine;
  3. Building public support for instream flow conservation through a broad based media and education campaign;
  4. Continuing our work to establish a working private water acquisition program in the state.

Implementing the Fish Flow Guidelines.  Through a combination of our professional staff and extensive volunteer network, we intend to implement the new Fish Flow Guidelines that all diversions must meet specific standards to protect fish and wildlife.  In addition, we will work to expand the Guidelines to every significant salmon and steelhead stream from San Francisco to Eureka, starting with the Navarro and Garcia Rivers.  The lessons we learned while producing the Guidelines in the Russian River will inform this expansion.

Using the Public Trust Doctrine.  California’s unique public trust doctrine is based on the famous Mono Lake decision.  It requires ongoing supervision of the SWRCB over water management issues that surface in this state in order to protect public trust resources like fish and wildlife.  As a result, this doctrine has become a forceful tool for saving trout, salmon, and steelhead for the next generation of Californians.  We must remain active to prevent any weakening of the public trust doctrine in cases like the Yuba, and to ensure that the present SWRCB fully embraces this doctrine as its legacy for our rivers and streams.  Such a legacy clearly does not allow for systemic illegal diversions – for example, about 95 percent of diversion in the Russian River basin is unpermitted.  We will prepare to mount a precedent-setting challenge to the SWRCB’s monitoring, compliance, and enforcement program as complementary to the biological and hydrological focus of the Fish Flow Guidelines mentioned above. 

Building Public Support.  TU has had great success in other western states in building public support for instream flow conservation through targeted free and paid media.  We intend to begin this effort in California, as the public is largely unaware of the cumulative threat of small diversions across the state.  In addition, we will improve our ability to respond to the increasing number of calls from around the state for expert assistance on water law and fish issues.  The media and public outreach efforts will aid our drive to expand the Fish Flow Guidelines to additional watersheds.  They will also contribute to our private water transaction focus described below.

Enabling Private Water Transactions.  Private water leases and purchases have proven to be an important tool for protecting streams and rivers in other western states.  In California, however, the concept is still in its infancy.  Yet, TU has quickly become a recognized expert on the issue in the state, organized agency working groups to promote transactions, and aided the early development stages of local watershed water trusts.  TU has also been leading an effort to identify and complete one of the first private water rights acquisitions to benefit a fishery.  TU’s California Director, David Katz, who has with significant transaction experience, and TU’s California Counsel, Chuck Bonham, will work to complete the first deals under this program and highlight this success statewide.
California Hydropower Initiative
Summary by Chuck Bonham, TU California Counsel

Trout Unlimited California participates in the following individual Federal Energy Regulatory Commission (FERC) hydroelectric project relicensings to protect, conserve, and restore coldwater fisheries and their habitat:

  1. Klamath
  2. Pit 3, 4, 5
  3. Upper North Fork Feather River
  4. Potter Valley Project, on the Eel River
  5. Project 184 on the South Fork of the American River
  6. The Stanislaus-Spring Gap Projects on the Middle and South Fork of the Stanislaus River
  7. The Southern California Edison Big Creek Projects in the Upper San Joaquin River watershed
In these individual proceedings, we work with interested stakeholders and the licensees to develop information and recommended terms and conditions for fish protect and restoration.  We seek as a priority collaborative and negotiated resolutions to individual relicensings.

Each of these relicensings has an independent personality.  Some are employing formal FERC procedures to undertake collaborative approaches designed to bring all stakeholders to the negotiating table earlier rather than later, others are following a more traditional route of agency filings and deliberations.  Others may end up in the courts. 

While federal agencies like the Environmental Protection Agency and the National Park Service estimate that there are anywhere from 65,000 to 75,000 dams on rivers in the United States, FERC’s jurisdiction over dams is more discrete.  Yet, the FERC process represents an incredible opportunity to protect, conserve, and restore coldwater trout and salmon and their habitat, particularly in California.

Why California?  The FERC landscape in California today is stunning.

In California during the next ten years, FERC will relicense fifty hydroelectric projects comprising over 115 dams.  Some experts claim that the power generating capacity of these soon to be relicensed projects is roughly one-half of all nationwide capacity.  FERC issues 30 to 50 year licenses that govern non-federal hydro projects’ design and operation.  Most hydro projects in California were licensed decades ago, and are operated according to outdated science, policy, and law.  When hydro licenses expire, the new license must comply with modern standards, presenting an unprecedented river restoration opportunity.  During this statewide relicensing effort, FERC must adequately and equitably consider fishery issues.  In fact, Congress has noted that “[p]rojects licensed years earlier must undergo the scrutiny of today’s values.”  A Trout Unlimited objective in participating in the FERC relicensing process throughout California is to ensure that when today’s values are used to evaluate hydroelectric projects all serious questions about the impact of hydroelectric project operation on coldwater fish populations are discussed and addressed. 

From a fishery specific focus, the opportunities presented in a FERC relicensing include: instream flows to protect fish populations and habitat, fish ladders around existing dams to promote genetic diversity, restoration of extirpated salmon runs, and water temperature and water quality concerns.  Overall though, and most importantly, TU’s founding organizational principle of taking care of the fish first, however, remains as true at the start of the 21st Century as it did in 1959.  Participating in FERC issues is just another way of making sure we take care of the fish.

The noted naturalist writer, Barry Lopez, once remarked that “[t]o stick your hands into the river is to feel the cords that bind the earth together in one piece.”  For TU, hydropower relicensings are a once in a lifetime opportunity to address and hopefully reverse decades of environmental damage and bring hydropower projects up to modern standards for ecological health, water quality, and recreation. 

TU holds the Chair of the California Hydropower Reform Coalition. For more information about the Coalition, go to www.calhrc(dot)org.

We also in this Program become involved in federal and state legislative matters, for example the last two years of debate over the Energy Bill in Congress.  Further, we participate in energy policy matters before the California Public Utilities Commission and the California Energy Commission, when issues relating to hydropower, rivers, and fish arise.

Finally, we have been working for the last several years to fix the fallout from California's troubled deregulation experience.  Specifically, we have been actively involved in Pacific Gas & Electric Company's bankruptcy because they own and operate the nation's largest private hydroelectric system, which significantly controls stream flow and other resources conditions in 16 major California watershed, including blue ribbon trout rivers like the Pit and Feather.

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