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Fisheries and
ESA
In
early 1995, Tom Shopflin, County Administrator of the Sonoma
County Planning Department, urged California officials to
declare a state of emergency. He produced statistics
which showed that salmon landings at Bodega Bay declined 90%
over a 5 year period. Because of the economic ruin
from the destruction of the salmon and their habitat, Sonoma
County in 1995 was $1.7 million in arrears on the repayment
of a marina construction loan to the state. The ruin
of the salmon runs in the northern section of California was
attributable to water and the lack of it in spawning
tributaries.
By
late 1995, it was determined that more than 95 percent of
the Russian River's once world class steelhead and salmon
fishery is gone according to Sierra Club comments at the
National Marin Fisheries hearings on endangered listing
hearings on the coho salmon. The last 100 years of
industrial, urban and agricultural development has impacted
the river and it's tributaries and depleted it as a major
commercial and tourist draw. As far back as 1975, a
Department of Water Right's general review of water
allocations stated that a primary concern was that the
migration of fish up the Russian River requires a continuous
flow along the entire river. They stated, "Since the
major increase in [water] demand will be the Santa
Rosa-South Sonoma area, the demand will have to be met by
the SCWA and the basic decisions on the source of supply
should be made at the local level by that agency in
cooperation with other affected agencies and groups....As a
result of this study, it is concluded that if the instream
uses for fish and recreation are considered along with water
supply, the best of alternatives considered in this study
will not produce yields that will be adequate beyond about
the year 2000."
The
State Water Resources Control Board (SWRCB), in Decision
1610, spoke to the issues of Fishery Resources, "Fishery
resources of the Russian River system are very important for
both recreational and commercial fishing. They also
generate considerable economic benefits in Sonoma and
Mendocino counties." They concluded, "There will be,
by the year 2020, inadequate water remaining after all
in-basin beneficial uses, including Redwood Valley's use,
have satisfied their demands from the Russian River system.
This will be exacerbated as Lake Pillsbury undergoes
sedimentation. Because of the shortages, we have in effect
allocated the remaining available water under Permits
12947A, 12949 and 12950 first to instream environmental uses
including the fishery, and then to SCWA at its diversion
facilities, to the extent that downstream minimum flow
requirements are met." They found that "the SCWA
appropriative rights do not include enough water to provide
fully for the fish and reliably satisfy other beneficial
uses of the water over the long term." They reserved
jurisdiction to amend SCWA's permits if a fishery study is
conducted which shows that a different flow schedule would
be better, unforeseen adverse impacts occur to the fishery
or recreation, if the Federal Energy Regulatory Commission
final action on the relicensing of the PG&E company's
Potter Valley hydroelectric project resulted in modified
minimum flow requirements in the Eel River or if further
evidence otherwise becomes available which may effect the
minimum flows.
In
1975, the Division of Water Rights (DWR) staff of the SWRCB
further found that "If the decision is made to proceed with
construction of Warm Springs Dam, it is recommended that
[there be] determination of desired fish flows along
the entire Russian River below the Forks on an interim basis
and funding of a study to develop a permanent basis...it is
recommended that a committee containing representatives of
Humboldt, Marin, Mendocino and Sonoma Counties, US Army
Corps of Engineers, RWQCB [Regional Water Quality
Control Board], Dept. of Fish and Game, Health and Water
Resources be formed."
The
State Water Resources Control Board stated in the Mendocino
filing " We did not find that an additional study is
necessary. Instead, we found that one should be done.
We also found that we did not need an exact study to adopt
Decision 1610 because there was inadequate water available
to provide fully for the fisheries. We anticipated
that a detailed study likely would provide information on
factors that limit the salmonid fish populations, with
instream flows being only one such factor." SWRCB also
stated, "Finally, we reiterate that the minimum flow
requirements in Decision 1610 will not result in an increase
in stream flows. Instead, the flows present in the
river will decrease under there requirements as compared
with flows since Coyote Dam began operating."
During
a 1978 meeting between the Agency Board of Directors and the
State Department of Fish & Game (DFG) concerning the
downstream plans for Warm Springs Dam, the issue was raised
that to maintain ample water and appropriate temperature of
the water, SCWA would have to put much more water down the
Russian River below Coyote to hold the proper
temperature. Thus the releases of Coyote water would
have to be renegotiated.
Staff
analysis for Decision 1610 acknowledged public concern about
impact to the fisheries. They stated that the
following should be determined, what levels of flow can be
maintained in the Russian River system without running the
system dry, considering climatic year types, water demands
and instream flow requirements for all beneficial
uses. They found it doubtful that flow recommendations
for fisheries which were substantially higher than those
recommended in Decision 1610 could be maintained without
running the system dry in less than normal water years.
DWR
Staff stated that in order to maintain the flows required
for fisheries, they recommended that after exhaustion of the
10,000 and 8,000 afa reservations of water provided for in
Decision 1030, that the DWR not issue any further permits
for appropriation of water from the Russian River above
Healdsburg, or from any tributary with surface or subsurface
hydraulic continuity thereof, without an affirmative showing
by the applicant that water can be directed under other
rights or from other sources, such as stored water, during
the period of no unappropriated water.
Although the SCWA holds only four appropriations for the
Russian River Project, the accounting of direct diversions
and rediversions of stored water is very complicated because
East Fork water must be accounted for separately after being
commingled and conveyed some 70 miles in the river.
The issue is further clouded by a difference of opinion by
the various parties as to which waters should be considered
as meeting the upper river and lower river required minimum
flows.
Guidelines were set in Decision 1610 with the intention of
being in accordance with California water rights
doctrine. These guidelines were to be used in
developing a formal procedure for identifying and accounting
for beneficial use of the water. The guidelines are as
follows:
1. In accordance with Title 23, Section 685, water collected
in Lake Mendocino and Lake Sonoma which is held for 30 days
or more shall be considered storage. Water collected
and released in less than 30 days shall be considered
regulation or pass-through of inflow.
2. In-basin demands along the Russian River shall be met
first by local runoff into the river (for example, West Fork
flow), then by East Fork flow that is passed-through Lake
Mendocino (mostly imported water during the summer months)
and lastly by releases from storage at Lake Mendocino (and
Lake Sonoma) under the 8,000 afa and 10,000 afa reservations
in Mendocino and Sonoma Counties.
3. Required minimum flows above Dry Creek shall be met first
by local runoff into the river, then East Fork pass-through,
then releases from storage at Lake Mendocino.
4. Required minimum flows below Dry Creek shall be met first
by local runoff into the river including Lake Sonoma
pass-through, then East Fork pass-through (mostly imported
in summer months), then any remaining releases from storage
at Lake Mendocino, and lastly, releases from storage at Lake
Sonoma.
5. Demands along Dry Creek below Lake Sonoma shall be met
first by local runoff into the creek, then by flows that are
passed through Lake Sonoma, and lastly by releases from
storage at Lake Sonoma.
6. Required minimum flows in Dry Creek shall be met in the
same sequence as in #5 above.
7. Direct diversions and rediversions of stored water at
Wohler-Mirabel shall be accounted in accordance with the
priority of SCWA's water rights. Accordingly, any East
Fork pass-through flow that remains shall be accounted first
as direct diversion under Permit 12947A (Application 12919A)
up to 92 cfs and the 37,544 afa combined limit, whichever is
controlling. If there is East Fork pass-through flow
that cannot be accounted to Permit 12947A because of permit
limitations, such flow shall then be considered the same as
local runoff. The next right to be accounted against
would be any available releases from storage at Lake
Mendocino, which would be a rediversion of stored water
under Permit 12947A, up to the combined limits of 92 cfs and
37,544 afa. Next in priority would be permits for
direct diversion under Applications 15736, 15737, and 19351,
in that order according to season, authorized rate of
diversion, and purpose of use. Finally, any remaining
quantities would be accounted as rediversion of storage
releases from Lake Sonoma under Permit 16596 (Application
19351).
Statements have been made that 185 cfs is the flow closest
to historical summer flows in the Russian River for fish and
that based on the evidence, 200 cfs is the flow requirement
for steelhead trout rearing habitat from May through
August. Minimum flow requirements set at two locations
are the result of an agreement between SCWA and Department
of Fish and Game
(DFG). At the conjunction of the east and west forks
of the Russian River just north of Ukiah, the minimum flow
is the lesser of (a) 150 cfs or (b) inflow to Lake Mendocino
except that at least 25 cfs must be released from Lake
Mendocino. On the Russian River at Guerneville, the
minimum flow is 125 cfs with a condition that the average
flow of 150 cfs be maintained to guarantee 125 cfs minimum
flow.
California law of fisheries protection is derived from the
police power authority of the state. In contrast,
water rights law is a law of property and pertains to the
use and distribution of property interests in water.
Thus there is a continuing tension between police power
regulation of property and the rights of property owners yet
a river is not legally or factually capable of functioning
as a water resource without the water to provide free
passage of fish. The case of California Trout v SWRCB
found that Fish & Game Code #5946 was designed to
condition and therefore limit, the 'appropriation' of water
by the priority given to the preservation of fish (Land Use
Forum Fall 1992, by Harold Thomas of DFG).
Furthermore, it was found that, the two counties in this
case in carrying out their public interest duties are the
proper entities to do any fishery studies, along with the
Department of Fish and Game.
A
current habitat description was contained within the
Aggregate Resource Management Plan of 1981. It
described the main stem of the Russian River as consisting
of a series of pools and riffles with pools dominated by
two-year-old or more suckers, squawfishes, and
hardhead. Reduced numbers of large carp, green
sunfish, bluegills and largemouth and smallmouth bas may
also be present. Riffles are a potential habitat for
trout but the water temperature level is high, probably from
the periodic willow removal as a part of the SCWA river
channel maintenance. Summer water temperatures in the
mainstem generally exceed the 68 degree Fahrenheit
temperature is needed for trout and salmon habitat. It
was also found that the ratio of pools to riffles is 4.8:1,
much higher than the 1:1 ratio characteristic of good salmon
and trout habitat.
Steelhead trout and salmon spawn in rivers and streams using
the stream gravel for laying and covering their eggs.
Sediment can suffocate the eggs and newborn fish cannot
emerge through the sediment layer and die. Timber harvest
operations are a prime reason for sediment inflow into
habitat waterways. In 1973, the growing concern over
sedimentation led to legislation requiring the Board of
Forestry (BOF) to regulate logging practices. In 1983,
the State Water Board certified a Water Quality Management
Plan for the National Forest System Lands and in 1986 the
BOF and State Water Board Review Team reviewed timber
practices and concluded that noncompliance with timber
harvest rules was the major reason for sediment problems
related to timber operations. Coordinated Resource
Management and Planning (CRMP) is a method to produce
agreements among diverse entities for addressing natural
resource issues. CRMP can involve private landowners
and resource management professionals
There
will be, by the year 2020, inadequate water remaining after
all in-basin beneficial uses. The current SCWA
appropriative water rights do not include enough water to
provide fully for the fish and reliably satisfy other
beneficial uses of the water. The SWRCB in Decision
1610 reserved jurisdiction right to modify, delete or
add minimum flow requirements to SCWA's permits if a fishery
study is conducted which shows that a different flow
schedule would be better, or if unforeseen adverse impacts
occur to the fishery or recreation in the Russian River or
if further evidence otherwise becomes available which may
affect the minimum flows.
Endangered Species Act (ESA) - Coho Salmon
Listing
The Endangered Species Act or ESA was initiated in a
three-step process. In 1966, the Endangered Species
Preservation Act was the first legislation passed by the
U.S. Congress to protect wildlife from extinction. The
legislature stated that the Departments of Interior,
Agriculture and Defense must protect listed species and
their habitats. It also stipulated that land could be
acquired for protection purposes.
In 1969, the Endangered Species Conservation Act was passed
which extended the 1966 legislation to protect species
worldwide. In 1973, the Endangered Species Act was
passed which extended protection to invertebrates and
plants. It also created the "threatened" status to
take action prior to endangered status. With this Act,
all Federal agencies are required to conserve endangered and
threatened species. Matching Federal funds were made
available to States. The Act has been reauthorized in
1978, 1982, 1988 and is pending reauthorization in
1995-96.
With the assigning of a local species to the endangered
status, many activities are begun and stopped, depending on
their impact. The ESA acknowledges that wildlife, fish
and plants are being rendered extinct as a consequence of
the impacts of economic growth and development
out-of-balance with the conservation of the natural
resources. Once a species is listed, no one may kill
or harm an individual member of the endangered
species. Because an endangered species life depends
upon its reliance on the health of it's native ecosystem,
then the ESA stipulates that it will provide a means whereby
ecosystems may be conserved. Critical habitat may be
designated and a recovery plan is then created by a group
with the best expertise for the particular species.
Critical habitat is the area designated as essential for the
recovery of the imperiled species. The habitat area
cannot be impacted adversely or modified by a federal
agency. Private citizens can continue to use privately
owned land provided that individual members of the species
are not harmed.
Success of designating a critical habitat can be more
difficult when it involves an entire riverine
ecosystem. Because of the propensity for development
in a watershed and the dependence for removing water and
introducing pollutants, the protection of a fishery species
is probably the most difficult. The protection would
begin with a retention of high quality water at a high
enough rate during seasonal fish passage. It would
entail restoration of riparian coverage both within the
tributaries and the mainstem of the river. It would
include the retention of appropriate sized gravel beds and a
reduction of sedimentation. A passage for fish without
obstruction would be mandatory.
In 1995, the Sierra Club Legal Defense Fund, Inc. sued on
coho salmon protection on behalf of a coalition of
environmental groups against the National Marine Fisheries
Service. The court decision was that the NMFS violated
the law by failing to publish the proposed rule by October,
1994, but that the government deadline for the final rule is
July 25, 1996.
Hearings by the National Marine Fisheries Service (NMFS)
were held in late 1995 in Rohnert Park. Decision on
listing is pending at the time of the writing of this paper.
NMFS is considering a listing of threatened rather than
endangered on coho salmon. They are assessing both the
coho and the steelhead. If coho are listed as an
endangered species then NMFS would prepare a recovery plan
for the restoration of the coho.
The Sierra Club, in 1995, received a grant of $500,000 from
the Takara Foundation, a Saki Company with operations in
Northern California (distributing a saki called Sierra Gold
carrying the Salmon Forever logo and a message to save the
Salmon.) The mission of the Sierra Club Salmon Forever
project is to secure meaningful protection of the coho
salmon on the North coast through listing it as an
endangered species (federal and/or state listing) and
developing citizen support for a strong recovery plan that
restores key habitat along and in streams.
In late 1995, The Resources Agency of California started a
Coastal Salmon Natural Community Initiative under the
oversight of John Amodio, Assistant Secretary for
Resources. Prior work had been done in securing a
signing of a Memorandum of Understanding that would
coordinate and integrate several agencies in pursuit of a
development of a comprehensive, basin-wide management plan
for the Russian River. The Memorandum of Understanding
was between State of California Resources Agency, California
Department of Fish and Game, California Coastal Conservancy,
California State Water Resources Control Board, California
Lands Commission, California Division of Forestry and Fire
Protection, United States Environmental Protection Agency,
United States Army Corps of Engineers, United States
National Marine Fisheries Service, United States Fish &
Wildlife Service, County of Sonoma, County of
Mendocino. The purpose of this initiative is to
conserve the rich and unique biological diversity of the
Coastal Salmon natural system in a manner compatible with
sustaining a healthy and productive economy. The
initiative will address future water and fishery impacts but
does not address past determinations such as water rights
permits.
Also in 1995, the Friends of the Russian River (FORR) hired
the Natural Heritage Institute attorney, Richard
Roos-Collins (attorney for the Mono Lake public trust suit
won against the City of Los Angeles.) In November a
letter of intent to sue the State of California was sent to
the State Water Resources Control Board and the State Lands
Commission (with copies to Department of Fish and Game,
Sonoma County Board of Supervisors, North Coast Regional
Water Quality Control Board, California Attorney General,
California Environmental Protection Agency, Mendocino County
Board of Supervisors and the California Resources
Agency.) They are to be sued for violations of the
public trust doctrine and related statutory laws in the
management of the submerged lands and waters of the Russian
River. The State has never made an informed judgment
whether most existing uses of trust resources - including
water rights and modification to the bed, banks and channel
of the Russian River - comply with the public trust
doctrine. Negotiations are pending in early
1996.
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