SWRCB Denies Legal Appeal to Save Eel River Salmon

So what is next ?????????

David

State Water Resources Control Board Denies Legal Appeal for Life-line of Water to Save Eel River Salmon

SAUSALITO, Calif., May 4  — Friends of the Eel River (FOER) announced today that the State of California Water Resources Control Board (SWRCB), rejected the organization’s petition to increase water flows on the Eel River — water that is critical for the survival of state and federally listed endangered salmon, on what was once the third largest salmon and steelhead producing river in the State of California.  The SWRCB letter is attached.

Friends of the Eel River and organic seed farmer Bill Reynolds petitioned the SWRCB on February 25, 2010, to end diversions at Pacific Gas & Electric Company’s (PG&E’s) Potter Valley hydroelectric project (PVP), consisting of two dams and a diversion tunnel. The Petition asked the SWRCB to eliminate PG&E’s current water rights for the PVP to protect public trust resources on the Eel River, and to prevent unreasonable use of water.

California’s Constitution Article 10 mandates that the state’s waters can be permitted for use, but imposes a clear test that such use be “reasonable and beneficial”, and that it shall avoid “waste or unreasonable use”.   The Constitution and federal law upholds the centuries-old legal tradition and requirement to protect the “public trust”; those natural resources that are held in common for the public good.  Friends of the Eel River believes that the 102 year-old diversion of water from the Eel River at PG&E’s PVP does not meet these critical legal and moral tests for continued water use, as PG&E is only generating, at maximum, 9.4 megawatts of hydropower.

Friends of the Eel River and many people and businesses of the North Coast have long known that the diversion of water from the Eel River to the Russian River via the Potter Valley Project is very destructive to the once abundant salmon and steelhead fisheries of the Eel River, the regional and tribal economy, and tourism.  PG&E’s water diversion is a major contributor to the extermination of the once prolific and world famous salmon and steelhead runs of the Eel River watershed.  While Eel River watershed stakeholders have been severely and increasingly harmed during the past century, the beneficiaries of the water diversion in southern Mendocino, Sonoma and Marin Counties have prospered from this infusion of mismanaged water.

Executive Director of FOER, Nadananda, noted that there is no time to loose, “We had more fish returning this year than we have in the past 20 years, but for a river as long and as wide as it is, the dribble of water that was allowed out of the dams was clearly not enough for the fish to travel up to spawn.”  She added, “The gravel beds that separate so many sections of the river are where most of the fish are ending up – dead.”

The SWRCB rejected FOER’s petition, stating that they interpret their authority over flows of water through the PVP narrowly:  they believe that control of those flows is subject to federal law, via the Federal Energy Regulatory Commission’s (FERC’s) licensing and regulation of the PVP, not state law.   In response to the denial, FOER’s attorney, Ellison Folk, stated:  “We believe that the Water Board has taken an unduly narrow view of its authority and mandate to ensure the reasonable use of Eel River water and to protect the Eel River fisheries.”

The denial of the petition, although disappointing, is not prejudiced.  The door is open for FOER to resubmit an amended petition which will address the areas cited by the SWRCB.  FOER will continue to work with the SWRCB to see that the water conditions on the Eel River are modified in order to restore a healthy Eel River for the wild salmon, as well as the residents, businesses, property owners and visitors who cherish and benefit from the Eel River.

About Friends of the Eel River

Friends of the Eel River (FOER), was founded in 1994 and has been acknowledged and praised for its devotion to the monitoring, defense and advocacy of the Eel River watershed. Through the education and support of residents, businesses and visitors in this third largest watershed in California, FOER has become a formidable challenger of large corporations and public agencies in the interest of preserving California’s North Coast public trust resources. FOER is supported by over 2500 members, a solid volunteer base, a large contingent of scientists and fisheries experts, sport fishing alliances, river enthusiasts, and concerned citizens who are working together to meet the challenges to the Eel River’s watershed integrity.  For more information visit www.eelriver.org

Additional information about the FOER legal action before the State Water Resources Board, including the legal petition, protest, and exhibits, can be found at:http://eelriver.org/news_updates.php

Alan Levine