Wednesday, October 4, 2023

Russian and Eel River Advocates Gather to Set the Rules of Engagement

The Russian River near Frog Woman Rock [Picture by Matt LaFever]

On June 12 the Planning Group of the Russian River Water Forum held an online meeting facilitated by Ben Gettleman and Jim Downing of Kearns & West. The Planning Group is comprised of a large group of stakeholders in the Eel and Russian River watersheds who are seeking solutions for sustainable water sources and habitat restoration of the two river basins, in response to PG&E’s decision to surrender its license to operate the Potter Valley Project.

Gettleman said of the initial Planning Group meeting on May 17, “We really wanted to paint the whole landscape,” as far as mapping out the positions of the various stakeholders, and that it was “a productive start to this conversation together.” 

Planning Group Charter Revisions

A consensus seemed to be reached on the Planning Group Charter with surprisingly minor revisions. Because the Planning Group is not a voting group, the charter provides for a Steering Committee to help with decisions. 

The External Communications Guidelines section of the charter was discussed and clarified. It is essential that the general public in the watersheds be informed of the issues before the RRWF. Planning Group members may share publicly available documents. However, if a member is asked to make a public statement on behalf of the Planning Group, they first need to consult with the facilitation team and Steering Committee.

The Planning Group agreed to add three additional members: The Lake Pillsbury Alliance; Save California Salmon, represented by Nikcole Whipple, and the Robinson Rancheria Tribe in Lake County. Going forward, the Steering Committee will decide whether new parties can join the Planning Group.

Planning Group Decision Making

Gettleman proposed that when discussing issues, the Planning Group strive for consensus, but it will not be possible to achieve agreement on every issue. He suggested that the group seek solutions that everyone can live with. If a proposal is unacceptable, an explanation and alternative solution should be provided. The Steering Committee will step in when the Planning Group is not able to agree. Ideally, the Planning Group will be able to satisfy multiple interests.

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Summary of Planning Group Member Interests

Jim Downing reviewed the categories of group member interests identified at the initial Planning Group meeting, with some major topics in parentheses: 

  • Collaboration and Process (finding solutions that all parties can live with)
  • Watershed Resiliency (identifying water supply alternatives for the Russian River Basin)
  • Water Supply and Water Management (allocation of water supply in the Russian River)
  • Fisheries and Habitat Restoration (restoration of harvestable surplus of salmon in Eel and Russian Rivers)
  • Economic Development and Recreation (developing jobs in fisheries, sustaining agriculture and recreation)
  • Tribal Interests (protecting tribal culture, sharing tribal knowledge, economic self-sufficiency)
  • Lake Pillsbury (ecological restoration if dam removal proceeds)
  • Finance (paying for costs of possible continued diversion and compensation for damage to Eel River)

PG&E Decommissioning Schedule

PG&E representatives have been invited to attend Planning Group meetings, but so far have not attended. Kearns & West briefed PG&E representatives on the results of the May 17 meeting. PG&E provided clarification of positions discussed by the Planning Group at the May 17 meeting.

  1. PG&E’s decommissioning plan will include the removal of in-water facilities such that no feature will continue to impound water and the natural flow of the river will occur.
  2. PG&E is open to proposals for project facilities. PG&E hopes that there is buy-in by multiple stakeholders.
  3. PG&E is continuing to evaluate Scott Dam and will mitigate any dam safety concerns as appropriate.
  4. PG&E is hopeful that FERC will issue its order for decommissioning by 2028.
  5. PG&E does not yet have a cost estimate for the removal of Scott Dam.
  6. As far as ratepayers paying for decommissioning, PG&E says that it will be less costly to remove the dams than it will be to continue to operate the facility.


An online MIRO planning tool was presented with proposed timelines for the Planning Committee and Working Groups. Members of these groups are able to place virtual sticky notes with comments on the timeline. Kearns & West will collect and analyze the comments.

Technical Briefings and Working Groups

Technical briefings for the Working Groups will be held on the following dates. Briefings will be via Zoom; registration will be forthcoming and available on the RRWF website. Technical briefings will be open to the public, and Working Group meetings will be closed.

  • Water Supply & Fisheries: Wednesday, June 21, 9:00 a.m. – 10:30 a.m.
  • Water Rights and Water Management: Thursday, June 22, 10:30 a.m. – 12:00 p.m. 
  • Governance: to be discussed at the next Planning Group Meeting
  • Economics & Finance: to be discussed at the next Planning Group Meeting
  • Russian River Resiliency Subcommittee: Technical briefing sometime in July or August

Steering Committee

This will be a small cross-interest group of Planning Group members, who will begin meeting in early July. Their role will be to advise and support the Planning and Working Groups; coordinate and communicate with PG&E; to help find a path forward when the Planning Group is unable to reach a consensus; and to engage and educate the community.

Public Comments

There were few public comments, compared to the initial meeting.

David Taber of the Palomino Lakes Mutual Water Company in Cloverdale, said that the Working Groups should be open to the public. He is concerned about environmental damage to the Russian River basin, and damage to the economy and property values if the diversion is ended.

Monty Schmitt of the Nature Conservancy supports allowing the public to attend committee meetings and to have a limited form of participation.

Carrie Shattuck, a candidate for Mendocino County District One Supervisor, said she would like to attend Working Group meetings to stay informed on the issues, even though she is not on the Planning Committee. (Note that Adam Gaska, Board Member of Redwood Valley County Water District, also running for District One Supervisor, is on the Planning Committee and several Working Groups). 

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Slides from the June 12 meeting are available on the RRWF website.

To learn more, please see previous MendoFever.com articles related to this subject:

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  1. Thanks for publishing this. I’d like to provide some clarifications. In doing so, I want to emphasize that although I am the former Deputy Director for Water Rights at the State Water Board, I’m retired and speaking for myself, not the Water Board, and I’m a Civil Engineer and not an attorney.

    Things like the public trust, the Endangered Species Act and the Wild and Scenic Rivers Act are better characterized as restrictions on the exercise of a water right than as a water right itself. That is because although things like fisheries and river navigation require water, in California you have to take control of the water to acquire a water right. You cannot get a water right for an instream use except by transferring an existing right under Section 1707 of the Water Code.

    Similarly, those types of uses are not a federal “reservation” either. Federal reserved rights are applicable on federal lands that have been set aside (aka “reserved”) for specific uses. Typically these include tribal reservations, forestry reservations, and military reservations. The reserved right allows for the use of water for the primary purpose of the reservation (eg, growing trees as an agricultural commodity is the primary purpose of a forestry reservation, but camping is not; the Forest Service typically acquired an appropriative water right permit from the state for its campgrounds).

    Instream uses are best thought of as a limit kn the amount of water available for diversion and use by riparians and appropriators. In the case of the Wild and Scenic River Act, there are also restrictions on the construction of diversion facilities unless waived by the Secretary of the California Department of Water Resources.

    There are two types of water right adjudications for surface waters. The first is referred to as a “Statutory Adjudication” (though the procedures for both types are in statute). A statutory adjudication is a process to quantify all rights to water on a stream or on a specified reach of a stream. It is binding on water users on the stream. Under the process the State Water Board conducts an investigation to determine the use of water from the stream by all of those claiming a water right. The Board prepares a report called an “Order of Determination,” which it submits to the local Superior Court. The Court will provide notice of its consideration of the report, and after an opportunity for hearing of any objections by affected parties, will issue a judgment that confirms each valid water right claim, quantifying each right, and setting relative priorities among all the users. The last decree of this type in California was issued in 1992 in San Mateo County. The biggest impediment to these types of proceedings is resources. They’re resource intensive, and the water right claimants are obligated to pay for the State Water Board’s reasonable costs in conducting the adjudication.

    The other type is called a court referenced adjudication. Those are initiated by private litigation. A judge can refer the matter to the State Water Board for findings of fact or findings of law, or both. The Board jnvestigates and prepared a “Report of Referee” for the Court. The court holds a hearing and issues a decree. The decree is only binding on the parties to the litigation, not to every claimant. Again, the parties to the litigation are responsible for the Board’s costs, and the Board can refuse the reference if provisions for paying for those costs are not in place in advance of the investigation.

    Many western states conduct water right adjudications. They get trickier when the federal government is one of the claimants due to federal sovereignty issues. California conducted several statutory adjudications in the period immediately following the proposal and permitting of the Central Valley and State Water Projects (the 1920s/30s and the 1960s/70s). California parties have attempted to do a hybrid of the two types in which one party sues everyone else who takes water from a stream in order to bind everybody (example: Putah Creek in Solano County). The disadvantage of that as compared to a statutory adjudication is that under a statutory adjudication you can do things like subject dormant (aka unexercised) riparian rights to existing diversions and use. That’s because the goal of a statutory adjudication (and one of the benefits to the parties) is certainty.

    As for the 10,000 and 8,000 acre-ft “reservations” for Sonoma and Mendocino Counties on the Russian River, those exist because at the time the State Water Board’s predecessor was deciding whether to grant consumptive water right permit to local water agencies for Lake Mendocino and Lake Sonoma (which were constructed as flood control and not water supply projects), the Board desired to set aside water that had been used by local users regardless of whether that use was legal at the time. The water availability analysis for Sonoma County’s water right permit applications depended on a report that was prepared in 1949 and included an accounting of all then-existing water users on the system.

    The Board concluded that the existing and future use of water by non-district users in the two counties would be 10,000 and 8,000 acre feet. Whereas normally any illegal user of water in 1949 who applied for a water right permit after Sonoma County Water Agency would have gotten a water right with a priority if the date of his/her/its own water right permit application, the set aside (reservation) allowed those applicants to acquire a permit for a right senior in priority to the District’s water right permit. It was essentially a “gimme” in recognition that SCWA would be exporting water out of the Russian River watershed. Initially the Board’s order approving SCWA’s application included a deadline by which other pre-1949 unpermitted appropriators were to have filed water right applications in order to get the priority, in subsequent Boards, that deadline was extended and then removed. The Water Board had made similar reservations in the Central Valley in order to preserve water for local water users under then-existing area of origin laws. “Pre-1949 rights” are only applicable to the Russian River, although the Board has used similar concepts in other watersheds (eg., on the Carmel River a similar provision was made for “Table 13” water users, so designated because they were listed in Table 13 of the Water Board’s decision on a reservoir permit application upstream on the Carmel River). That said, if you are a post-1914 appropriator on the Russian River whose use started prior to 1949 and you do not have a water right permit, you are an illegal water user unless you obtain your water under contract with a legal water user consistent with that water right holder’s permitted place and purpose of use.

    This kind of a “reservation” should not be confused with a “federal reserved water right.” They are two entirely different and unrelated things.

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Monica Huettl
Monica Huettl
Mendocino County Resident, Annoying Horse Girl.

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