Whole New Kind Of Watershed Group

by Mark Scaramella

Late last month California's Water Resources Control Board issued the final draft of their "Policy for Maintaining Instream Flows in Northern California Coastal Streams."

The new policy was prepared in accordance with California Water Code Section 1259.4 which states that "On or before January 1, 2008, the board shall adopt principles and guidelines for maintaining instream flows in coastal streams from the Mattole River to San Francisco ..."

In other words, guaranteed water for fish, the achievement of which might result in fish in the guaranteed water.

There wasn't much critical comment about this bold-sounding initiative aimed at keeping enough water in streams to ensure that Northern California's once lush fish runs, at a minimum, might begin to re-establish themselves. Mendocino County offered no formal comment and most of the comments the Water Board did receive were generally supportive, agreeing that something must be done, that it's long overdue, along with encouragement to do it, do it right and do it better.

Back in October of 2004 after Governor Schwarzenegger first signed the enabling legislation — AB 2121, authored by liberal Assembly Member Sheila Kuhl before she was elected to the State Senate — the enraged California Farm Bureau declared that the draft guidelines were going to be written in secret without public (i.e., Farm Bureau) participation, and that the process would impose "burdensome and illegal" water rights fees on landowners. Then-Farm Bureau President Bill Pauli (a Potter Valley grape grower) called the original legislation "the worst kind of back room legislation." Pauli added that the legislation and the Water Board's policy proposals "pose a clear threat to the viability of agriculture in the North Coast area, with the ominous possibility of greater statewide impact. ... [The Farm Bureau] believes that this bill impairs private property rights, threatens jobs and livelihoods, increases government red tape, and flies in the face of public participation in government decision making. California's farmers and ranchers can now look forward to higher fees, less stable water rights and more regulation."

Of the several dozen comments sent to the Water Board in 2006 regarding the first draft of the new policy the only one with enough substance to be worth quoting at any length was this comment from Richard LaVen and David W. Goble, water staffers for the City of Fort Bragg:

"The USGS website lists 775 water data sites for Mendocino County. Of those, only 53 contain data (some dating from 1911) that might (or might not) be useful in defining a 'winter 20% excedence flow' [i.e., minimum high flow level below which water diversions would be prohibited] at a given point of diversion. Of those 53 stations, only 12 are currently operating. None of the operating stations are representative of the water yield from small watersheds. When faced with increasing water demands and climate change that may well lead to long-term reductions in available water supply, our institutional policy appears to be directed toward making complex quantitative decisions with decreasing amounts of information."

In other comments about the earlier draft posted on-line late in 2006 at the Water Board's website, however, even organizations like the Farm Bureau, the Russian River Property Owners Association and the Sonoma County Wine Commission voiced no serious objection, saying they'd be "willing to cooperate with others in the same watershed in a process that could result in flow standards tailored to meet local conditions."

In suspiciously identically worded letters, the Russian River Property Owners Association and the Sonoma County Wine Commission added that "it is better that all parties work together to achieve on-the-ground changes than spend time and money on multiple steps in the standard water rights process," adding, "We find the concepts being put forward for process changes, a North Coast Permit and a watershed management approach can deliver improvements that will benefit the Board, applicants and fish."

This new cooperative-sounding stance was a dramatic reversal for the Farm Bureau especially.

What happened between 2004 and 2006 to explain the conciliatory new tone from the Farm Bureau and their fellow diverters?

We read in the Farm Bureau newsletter of October 2004 which had the originally angry complaint that "the California Farm Bureau Federation and other agriculture and business organizations already have been meeting with state officials to discuss future implementation of AB 2121."

What kind of implementation were the growers and developers discussing? We don't know exactly, but looking at the finished product we can make a pretty good guess.

* * *

If you follow these matters at all, you probably think that a watershed group is a motley collection of "stakeholders" in a watershed — environmentalists, bureaucrats and property owners — who sit around talking about how everybody has to work together to achieve consensus about improving practices which harm rivers and streams and the few fish left in them. Unreadable reports from these groups are the work product, but the reports are written in prose that would put a cranker to sleep an hour into a run.

Anyone who's attended a watershed group meeting on the North Coast knows that they never achieve anything because the enviro members tend to limit their requests to very modest things like installing stream gages or taking water temperatures or doing small creekside stabilization demonstration projects which the property owners — mainly grape growers in this area now, formerly timber companies — object to strenuously. Consensus is generally achieved only after most of the enviros resign in frustration, after years and years of fruitless bickering and posturing — and after most of whatever damage was being addressed by the group is already well-documented history.

That was the watershed group of yesteryear.

Then came the Water Board's new policy guidelines.

Paragraph 12.1 of the new draft policy defines a Watershed Group this way: "A watershed group is a group of diverters in a watershed who enter into a formal agreement to effectively manage the water resources of a watershed by maximizing the beneficial use of water while protecting the environment and public trust resources."

That's right. A watershed group is made up only of the people who want the water!

To be a state-sanctioned watershed group the diverters have to apply for a state-approved charter. "The purpose of the charter is to ensure that watershed group participants are in agreement regarding the goals of the group and the tasks that must be completed to achieve these goals. The charter shall contain watershed group participant names, roles, and responsibilities, and a description of the individual water right applications or petitions involved. It shall also describe the key contents of the technical documents that will be prepared by the watershed group, and include an estimated schedule for submitting these documents to the State Water Board. The State Water Board shall review and concur with the proposed project charter before the watershed group commences work. The State Water Board will consider the extent of participation from applicants and petitioners relative to the total number of pending applications and petitions in a watershed as one factor in deciding whether to approve the proposed project charter."

Translation: the Water Board, having only minimal staff and funding, is turning over the regulation of water to the very people who have pending permits for water diversions.

"The watershed group shall study the instream flow needs of fish and fish habitat using the site specific study guidance contained in this policy. The watershed group shall submit a report detailing the results of the study to the State Water Board. The watershed group shall submit information necessary to prepare appropriate environmental documents so that the State Water Board may make a determination of the impacts of the proposed projects to the environment, public trust, and the public interest for the purposes of preparing water right permits for the proposed projects...

"Watershed groups proposing to coordinate operation of water diversions shall provide a watershed management plan that describes how diversions will be operated, monitored, and maintained, including monitoring and reporting methods..."

So the diverters will study their own water flows and also enforce their own diversion permits.

"The watershed management plan shall include a certification that the watershed group has the financial resources to build, operate, maintain, and monitor the proposed projects consistent with the terms of any water right permits issued for the project(s) and shall provide proof of financial resources."

Adios, hippies.

Who do you think will have the "financial resources" to do all this? The public? Of course not. The only people with these kinds of financial resources are Big Ag, large developers and large, well-funded governmental organizations like the Sonoma County Water Agency.

If a member of the public wants to challenge the new diverters' watershed group's diversion plans, the watershed management plans or their (lack of) monitoring and enforcement they'll have to pay through the nose to come up with their own data, their own lawyers and their own experts.

Which, of course, won't happen.

At last count, the Water Board has 310 pending applications to take water from North Coast streams for private use. Of those, about 200 are on the already hugely overdrawn Russian River, which is already on minimum flow because of the current drought combined with the 15% reduction in Eel River diversions and various conservation programs from Humboldt to Marin. The Russian River is expected to be a priority body of water for implementation of the Water Board's new policy — handing water management of the Russian over to developers, the wine industry and Sonoma County. Soon we'll be reading press releases from a newly formed, Russian River Watershed Group full of happy-talk about how they're moving forward to protect the fish and become state-certified stewards of North Coast rivers and fisheries!

No wonder everyone's happy with the Water Board's new proposal. Enviros are pleased that there's a nice-sounding policy in place to protect the water for the fish. The state is happy because the diverters have to pay for the burdensome data and paperwork. And the water diverters are pleased because they get to control the entire process.

It's a win-win-win solution for everybody and everything except water and fish.