California Sportfishing Protection Alliance Files Protest to Protect Rivers Against Further Overdraft

By Chris Shutes, FERC Projects Director
September 28, 2008

The Russian River Flood Control and Water Conservation Improvement District (“Mendocino District”) has petitioned the State Water Resource Control Board for water from Lake Mendocino under two County of Origin water rights applications. Mendocino claims, based on a reading of old water rights applications and decisions, that water from Lake Mendocino is available for appropriation.

The problem is that there is no “surplus” water left in the Russian River. Water taken by the Mendocino District will have to be taken away from someone else. Since this is likely to be contentious and involve large amounts of money, CSPA believes that there is a strong chance that some of the water that is being requested will come at the expense of the Russian River, where salmon and steelhead are already doing very poorly.

In 1949, the State of California made “State Filings” on behalf of both Mendocino County and Sonoma County water interests in the Russian River drainage. The state filings were made in accordance with County of Origin statutes in the State Water Code, which seek to assure that counties where water originates have water needed for development.

Basically, the idea is to prevent a situation where more developed counties get the water first, leaving none behind for rural and upstream watersheds. In general, California water law requires water users to use a water right, and does not allow water users to save the right to use water for an indefinite period. State filings, recognizing that counties of origin were at a disadvantage both in terms of money and rate of development, are an exception to this general principle.

Complicating the situation is the fact that a large portion of the water that finds its way to Lake Mendocino every year is water from the mainstem Eel River that has been exported through PG&E’s Potter Valley hydroelectric project to the Russian River watershed. This exported water has helped to fuel the rampant growth of viticulture in Mendocino and Sonoma counties, and urban growth in those same counties and also in Marin. While this has continued, the salmon and steelhead fisheries in the mainstem Eel have declined dramatically, and are in danger of extirpation. If more water from Lake Mendocino is promised to Mendocino District customers, it will become harder than ever to restore water to the Eel River watershed.

While CSPA believes that state filings can serve an important function, we filed this protest to protect fisheries and other instream values in both the Eel and the Russian. We also believe that there will soon be many similar requests statewide to appropriate water under state filings. Many, if not most of these future requests will also take place in watersheds that are fully appropriated or over-appropriated. We want to be sure that the State Water Resources Control Board addresses this and future applications for water under state filings in a thorough and protective way, and that the Board employs and establishes a comprehensive process for doing this.

Thus, CSPA has asked for a number of measures and process requirements in considering Mendocino’s petitions. We want the Board to make an up-to-date accounting of water in both the Russian and Eel watersheds, with modern tools. We also want the Board to take a fresh look at all of the impacts of all the diversions in these watersheds, and not accept up front an already unacceptable situation.