Wednesday, October 4, 2023

The Experts Weigh In: Environmentalists, Engineers, and Lawyers on the Future of the Potter Valley Project

Summer-run steelhead were seen here – at the Middle Fork Eel River in September 2019. [Photo from John Heil with the USFWS]

On June 21 the Russian River Water Forum held a Technical Briefing on Water Supply and Fisheries in both the Eel and Russian Rivers. Experts covered the declining fish populations in affected waterways, the nuances of the Russian River watershed, and indigenous water rights in the area.

Presentation by David Manning, Environmental Resource Manager, Sonoma Water

Manning gave high-level recaps of more than a thousand pages of online reports conducted for the Two Basin Partnership. The Partnership was an ad hoc group formed by Congressman Jared Huffman in 2018 to explore terms for a new hydroelectric license at the Potter Valley Project. PG&E has since announced that it would be abandoning the hydroelectric project. The Two Basin Partnership ended, and its successor, RRWF, is a larger group formed to explore the possibility of taking over the Potter Valley Project and restoring the habitats of the Eel and Russian River watersheds. RRWF is following up on the research and studies undertaken by the Partnership. 

Three species in both river basins have extremely low populations: California Coastal Chinook Salmon, Northern California Steelhead, and Central California Coast Steelhead. 

Restoring the habitat in the upper Eel is essential to the Salmon and Northern California Steelhead species. There are hundreds of miles of salmon and steelhead spawning grounds in the Eel River and its tributaries above Scott Dam. The fish ladder at Cap Horn Dam is in disrepair and is inadequate for volitional fish passage. Volitional means the fish swim on their own back and forth to the spawning grounds. 

Manning displayed charts showing salmon returns in the Eel and Russian Rivers over the years. Certain years show high counts for both Salmon and Steelhead, even after the dams were built. The most recent ten years have seen very low numbers of fish. 

Graph from the Russian River Water Forum
Graph from the Russian River Water Forum

Four alternatives for fish passage at Cape Horn Dam were studied:

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  1. New fish ladder
  2. Dam removal with a pump station to lift water to the diversion tunnel
  3. Dam removal with roughened channel
  4. Dam removal with upstream diversion

Modeling these alternatives produced mixed results. The current Cape Horn fish passage is inadequate and does not meet current Fish & Wildlife regulations. The fish hotel and fish ladder fill with sediment during high flows, preventing the fish from making their way above Cape Horn Dam.

Questions from the audience (Q&A paraphrased): 

Q: There appears to be no guarantee that these alternatives will recover the fish populations in the Eel and Russian Rivers?

A: There are many factors that affect fish population. We need to look at the entire length of the Eel River. It is a generational issue. There is perennial flow (year-round flow) above the dams and access for fish to persist. That makes dam removal important. 

Q: If fish declines are not likely caused by the dams, why don’t we concentrate on other solutions that don’t impact human welfare?

A: There are so many reasons why the habitat has changed. There are valuable habitats above Scott Dam that are important for recovery. Dams are not the only factor. There is agriculture, development, and logging. Actions that can enhance species’ ability to recover are thought to be important in long-term habitat restoration. 

Manning wrapped up by explaining the next steps. The RRWF will apply for another grant from the California Department of Water Resources to: 1) continue funding the RRWF; 2) study water resources in Potter Valley; and 3) Continue to study Cape Horn Dam facility assessment.

The RRWF will also apply for a grant from the US Bureau of Reclamation Aquatic Ecosystem Program.

Presentation by Don Seymour, Deputy Chief Engineer, Sonoma County Water Agency

Seymour began by showing a map of the Russian River watershed and spoke about the two reservoirs on the Russian River: Lake Mendocino and Lake Sonoma, that were created for flood control and water storage. 

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Because the Russian River contains diverted water from the Eel River and the water rights systems are so complex, there are many factors that determine when and how much water is released from Lake Mendocino. 

Just to scratch the surface of Seymour’s presentation, water rights on the Russian River fall into the following categories:

  1. Riparian
  2. Pre-1914
  3. Pre 1949 (post 1914)
  4. Sonoma Water Permit 12947A
  5.  Mendocino County Russian River Flood Control License 13898
  6. Post 1949 Mainstem, Sonoma County
  7. Post 1949 Mainstem, Mendocino County

Within these categories, the rights are controlled by whether the water in the Russian River is “Pass-Through Natural Flow,” “Pass Through Potter Valley Project Water,” or “Storage Release Project Water.” The diversion points on the Russian River below Dry Creek are reliant on natural flows and water from the Eel River. The State Water Resources Control Board has issued thousands of appropriative water rights for the Russian River.

Lake Mendocino is staffed by the Army Corps of Engineers. The ACE uses Forecast Informed Reservoir Operations – FIRO to monitor climate conditions in the watershed and adjusts water releases accordingly. Using FIRO, weather forecasting is monitored to balance the need for flood control with water storage. There are mandatory amounts that must be released from Lake Mendocino for minimum instream flows into the Russian River in support of fish habitat. If Coyote Dam is raised, more rainwater could be stored.

Lake Mendocino is filled by rain and water from the Potter Valley Project. Sonoma Water controls and manages decisions about the water in Lake Mendocino. Water stored in the lake is not available to all water rights holders. Because of the drought and PG&E’s failed transformer, only minimum stream flows are being released. This has made it challenging to maintain all water rights that have been issued.

The Russian River has historically benefitted from the Potter Valley Project. The RRWF is looking at how the PG&E/FERC surrender process will affect flows into the Russian River. Since the year 2020, 74% less water is being diverted through the Potter Valley Project than was diverted prior to 2007 (150,000 acre-feet per year pre-2007, down to 40,000 acre-feet per year post-2020).

Two potential scenarios were presented, both assuming that Scott Dam is removed.

  1. No diversion of water from the Eel to the Russian River
  2. Seasonal PVP diversions of water

If the Potter Valley Project is decommissioned and there is no interbasin transfer of water from the Eel to the Russian River, Lake Mendocino would most likely dry up in some years. 

Question from the audience:

Q: What percentage of the Eel River was diverted into the Russian River prior to 2006 and post-2006?

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Answer: Pre-2006 about 2%. Post 2006 perhaps 1.85%.

To view the fisheries slides, please click here. Water supply slides here. Link to the recording.

Water Rights and Water Management Technical Briefing, June 22, 2023

This presentation via Zoom was facilitated by Jim Downing of Kearns & West. Ryan Bezerra, attorney for Sonoma Water spoke first, and Erica Costa, attorney for the Round Valley Indian Tribe, spoke during the second half of the meeting. The tribes have a completely different definition of water rights, and they are ruled by the federal government, rather than the state.

Presentation by Ryan Bezerra, outside water rights counsel for Sonoma Water and other water agencies

Bezerra introduced himself and said he would be speaking on the water rights of the Russian River basin, how they are applied, and what may happen after the Potter Valley Project is decommissioned.

The Russian River basin is divided into segments. Upper Russian River from east and west forks to the Dry Creek confluence.

The Upper Russian River has natural flows derived from precipitation. The West Fork coming from Tomki Road has only natural flows. The East Fork contains water from the Potter Valley Project and natural flows, which go into Lake Mendocino. Not all of the PVP imported water is stored in Lake Mendocino. The Russian River below Lake Mendocino contains natural flows and PVP water. 

Sonoma’s ability to augment lower Russian River flows (below Dry Creek) is constrained by a variety of factors, including biological restrictions. 

Natural flows have one type of water rights regime. PVP water is imported water. The release of stored water from Lake Mendocino is generally controlled by Sonoma Water and Mendocino County Russian River Flood Control and Water Conservation Improvement District. When water is released from Lake Mendocino it becomes subject to different rights.

Comment from the audience: The water coming out of the Potter Valley Project is considered “abandoned” by PG&E. What is the water right?

A: Water imported to a watershed and released by the holder is an appropriative water right. Between 1905 and 1949 this water may have an appropriated right on a run of river (not stored) basis. In 1949 rights become subject to the Russian River Flood Control water rights permit.

A whole line of California water law is based on foreign water when the importing entity has a lot of discretion to do things differently. If another entity holds PVP rights, how under California law would the rights change? Water rights holders may be subject to changes. That’s for the next discussion around potential changes.

Of the three categories of water in the Russian River (Natural Flows, PVP, and Stored), natural flows is conceptually the easiest to understand. Riparian holders having land along the river and underflow have rights to use water on their land. A city cannot hold a riparian right. In general, riparian holders have first priority in time, first in right (rights belong to the first party to claim the source of water). Riparian rights don’t include imported PVP water. 

PVP is subject to appropriations that began in 1905. An appropriative rights holder prior to 1905 could not have the right to PVP water, because the PVP didn’t exist prior to 1905. Appropriative holders have the right to PVP portion on a run of river basis.

Sonoma Water and RRFC hold 1949 priority permits to store water in Lake Mendocino. They have the rights to contract with other users.

Sonoma Water also has a State DWR 10,000 acre-foot reservation for post-1949 appropriators from Lake Mendocino. Sonoma Water has a permit to release Lake Mendocino Minimum Stream Flows if natural conditions are not met, as happened in 2021 and 2022.

Q: How do these rights holders know if the water is part of the 10,000 acre-feet, and how do we track it?

A: At this point, it isn’t clear when conditions happen and what the breakpoints are. In 2021 and 2022 it was clear from the State. Generally, it is not clear. There are various tributaries that impact flow.

Q: During curtailment, each rights holder was told what they could use. Riparian rights are generally ag. Does it apply to mutual water companies?

A: If uses of adjacent lands are riparian, in general, mutual water companies are treated as a collection of riparians.

Q: Will it be important to address the 10,000 acre-feet when working on this project?

A: Access to stored water becomes more critical as natural and other flows drop.

Presentation by Erica Costa, attorney for Round Valley Indian Tribe.

This is a high-level overview of representing tribes. There are many other tribes within both river basins. The Potter Valley Project is south of the RVIT Reservation, but the Eel River moves north. The Eel headwaters are south of the reservation.

Indian rights are predicated on Federal Law, not state law. The Winters case created Implied Reservation Doctrine, 1908. The establishment of a reservation recognizes the tribe’s right to land and water. 

California water rights don’t apply to Indian reservations. Under Winters, the general concept is that the reservation is set aside as a homeland. Water rights support the homeland. Most tribes’ rights arise under the federal doctrine, but also an aboriginal right since time immemorial. When the reservation is set aside it continues to protect practices in use long before Europeans came.

Many of the tribes are set up for agricultural practices. The rights would start when the reservation created. 

Tribal water rights are not geographically limited to the reservation. Tributaries and upstream sources of water are important. The doctrine of first in time, first in use doesn’t apply to Indian rights. Indian rights go back to the creation of the reservation even if they don’t use the water until years later.

These rights were established under federal law but have not been adjudicated yet (not decided by the court system). Round Valley Tribe’s unadjudicated right was created at the time the reservation was established in 1858. Covelo and Round Valley were set aside for a confederation of multiple tribes, under one tribal government. Round Valley has a tortured history: in the 1860s other tribes were relocated at gunpoint on a long march across California to Round Valley. Only half of the estimated 500 forced marchers made it to Round Valley. 

After this forced removal, Congress changed the boundaries of the reservation so that different forks of the Eel River border three sides of the reservation. In 1873, the federal government reserved for the tribe the privilege of fishing in those streams. This is confirmation of how important fisheries are to the tribes. That entitles RVIT to minimum flows in the Eel to support a healthy fishery. 

Q: Regarding aboriginal rights, have there been any legal precedents regarding pollution and climate change? Changes since the 1870s that affect the quality of water. Is that considered when looking at fishing right?

A: Tribes need healthy flow to support healthy fisheries. Talking about courts, there has been a lot of litigation around Indian water rights. A lot of these tend to get hashed out in water rights settlements. Many claims are resolved through settlement.

Q: There are other federal water rights, such as the Endangered Species Act, the Clean Water Act, and Wild and Scenic Rivers requirements.

A: There are other federal reserved water rights on the Eel that are separate from tribal rights. There can be reserved rights for other purposes. The federal government reserves a volume of water necessary for environmental, endangered species, and other federal uses. 

Q: Have the tribal governments you worked with formed an opinion of the interbasin transfer being a solution? RVIT was a member of the Two Basin Solution.

A: The tribe’s goals have been to work with neighbors. Is it possible to protect the tribe’s rights and to provide security to neighbors on the Russian River? It is part of the Tribe’s thinking.

Q: The tribes’ right is primarily to support fishing and other activities. What are other tribal uses?

A: I’ve focused on water and fishing rights, those are non-consumptive. Consumptive rights support agriculture, etc. on the reservation.  The tribes didn’t think of water as something you own. 

Comment from the audience: In looking at water rights bundles associated with the project it can get confusing really quickly. We should put together something that includes all water rights on the Planning Group.

Q: Regarding the Pre-1914 right that is owned by PG&E, if that is transferred would it affect the winter months alone? Should we agree that this is what we should look at?

The issue of public trust, knowing the concept that the state owns every river in California. Moving large amounts of water concerns public trust, health and safety, and fisheries.

A: At a conceptual level there are different interests. Both basins have interests that are environmental, fisheries, consumptive, and recreational use. Under the California Constitution, water rights are subject to reasonable use. The Public Trust Doctrine is an important legal concept, establishes that certain natural and cultural resources are preserved for public use. 

Q: What is the process by which tribes would qualify for rights?

A: The traditional way is through the federal court system. For many tribes, there is an upside to considering settlement outside of litigation. A big piece of water rights settlements includes a waiver of rights and includes funding for the tribe. The two main options are adjudication and settlement.

Q: Are state and federal government parties to the settlements? 

A: It ranges.

Q: When talking about appropriative and riparian rights, there is a fog around defining what these rights are. Erica showed how difficult it is to categorize all rights. You have to look at the reported uses. Looking at what the rights are, understanding the rights holders’ understanding of their rights, and how to report their use. The regulations themselves are in place to protect the water rights system. How does a holder understand when a junior holder is using a senior holder’s water? We need to parse this out. Because we don’t necessarily know the full picture. 

A: California has not had a significant number of adjudications recently. Efforts to negotiate a settlement on the Fresno River were unsuccessful. The State Board staff have been willing to help. There are two parts: the nature of the rights themselves and the operational work.

Here are links to the presentation materials and recording: Overview Map, Russian River Map, Two Pager, Eel River Slides, Water Rights Recording,

Here is a list of MendoFever.com’s prior coverage on the Russian River Water Forum and the fate of the Potter Valley Project:

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

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