RRWPC Comments on SCWA Low Flow Urgency Petition, 5-14-17

State Water Resources Control Board
Division of Water Rights
Attn. Patricia Fernandez
P.O. Box 2000
Sacramento, CA 95812-2000

Protest of Temporary Urgency Change Petition filed by Sonoma County Water Agency on April 19, 2017, for temporary changes in Water Right Permits 12947A, 12949, 12950, 16596 (Applications 12919A, 15736, 15737, 19351) pursuant to Chapter 6.6 of Part 2 of Division 2 of the Water Code

We are protesting one item as follows: “From May 1 through October 15, 2017 reduce instream flow requirements for the lower Russian River (from its confluence with Dry Creek to the Pacific Ocean) from 125 cfs to 70 cfs”.

Russian River Watershed Protection Committee (RRWPC) submitted substantial comments on the Water Rights Petition for the Fish Flow Project (Attachment #1) proposed in response to the Russian River Biological Opinion of September, 2008. Our attorney, Michael Lozeau also submitted comments on our behalf (Attachment #2). In addition, we organized and tracked the roughly 700 protest form letters submitted to your agency expressing concerns regarding water quality, health, and recreational issues that may result from greatly lowered summer minimum flows in the lower Russian River. (Attachment #3)

We understand that you may grant an Order in response to the TUCP before the protest period ends on June 1, 2017. SCWA submitted their TUCP on April 19th, but we didn’t get our Lyris notice until May 1st. We are hopeful that by getting our comments in early, long before the due date, you will be able to consider our concerns, which are the concerns of our lower river community, and incorporate remedies where possible, into the TUCO. We would also very much appreciate a response to our comments.
RRWPC is a nonprofit corporation working in the public interest to protect water quality and quantity in the lower Russian River for the last 38 years. We represent the environmental concerns of many property owners, renters, business people, and lower river vacationers who want to be assured of, and whose health and livelihoods depend on a clean Russian River. Our vacation community welcomes visitors coming to our incredibly scenic area to relax among stunning hillsides covered with towering redwood trees that line the banks of the Russian River. We are dedicated to protecting this precious resource.
RRWPC activities have included commenting on regulatory and environmental documents concerning the lower Russian River, tracking State and Regional Water Board policy and permit development, enforcement activities etc., along with federal and local governmental policies and regulations regarding water quality, adequate flows, and water supply.

We have been following and commenting on the Estuary Project and low flow proposals for many years. Based on the comments below, and our comments on the Water Rights Petitions requested by SCWA, we urge you to consider partially denying Sonoma County Water Agency’s (SCWA’s) Temporary Urgency Change Petition (TUCP) regarding flows in the lower river during July and August and maintain D1610 flows during those months instead. It is our deep frustration that because the Biological Opinion required annual and permanent changes to water rights, including specific minimum flows of 70 cfs in the lower river; that was the only normal rain year flow alternative studied in the DEIR and it appears, that is what we are stuck with in all cases, without any regard to the other harms and detriments to the community that will result. For that reason, we request that “No Project” flows (i.e., retain Decision 1610 flows) be allowed for July and August only.

We have heard rumblings that concerned agencies are considering an adaptive management approach that addresses fishery, recreational, and water quality needs on an as-needed basis. In other words, the river would be managed so that higher flows (than 70 cfs) could be implemented under certain conditions. We are leaving our minds open to that, but have grave doubts that all beneficial uses, over an extended future, could be consistently successfully managed. When new people come on board who are not knowledgeable of the history and concerns of the public and the various parties involved, and when the various management goals are varied, detailed, and complex, the result can be disastrous for public health, the fish, and aquatic life. For instance, we have read that shaking lose the toxic algae with pulses of flow can make it more bioavailable and therefore more dangerous. The whole issue of how to deal with the toxic algae needs to be carefully addressed as there is still a lot unknown about it (and numerous other issues as well).

RRWPC grateful for State’s extensive comments on Fish Flow DEIR….
We would like to express our gratitude to your agency and the North Coast Regional Board for combined detailed comments and questions submitted on the Fish Flow DEIR. (Attachment #4) Many of our own concerns about this project were delineated in those comments, including many we didn’t think of and didn’t address, that are very important. The Temporary Urgency Change Petition (TUCP: Water Agency’s Petition to the State water Board for Permanent Changes in Decision 1610) submitted by Sonoma County Water Agency on April 19th, should address, at a minimum, water quality impacts that are significant and unmitigatable according to the DEIR.

RRWPC had commented on past TUCPs, but skipped some years because of a lack of response to our concerns. Now that the Independent Scientific Review Panel (ISRP) Report has been released (a report we highly regard), and your agency’s important comments submitted (jointly with North Coast Regional Board), we have a much better picture of the scientific justification for demanding much more analysis on the DEIR, especially for low flow in the lower river. (The ISRP was favorably mentioned in the joint comments.) This year’s annual TUCP has been submitted, per the admission by SCWA, strictly because the Biological Opinion (BO) requires it and, for a change, not because of severe drought or some other special event that requires emergency measures.

Your Agency’s comments on DEIR & ISRP Report: indicated that more studies need to be conducted, toxic and other substances monitored further (especially toxic algae), and numerous issues addressed before new water rights permits can be adopted. While we realize permanent changes to water rights are not happening yet, a temporary order to accommodate the BO, can nevertheless cause harm, perhaps on a temporary basis, or perhaps on a more permanent one. The DEIR (admitted Impact 4.2-4 on page 1-20 of DEIR (Vol 1) which states: “Changes to minimum instream flows could result in a violation of water quality standards or waste discharge requirements or otherwise degrade water quality relating to biostimulatory substances in the Russian River.”

We attached our attorney’s comments since he provides a legal analysis of this issue (Attachment #2). (Please see pages #2-#4 of his letter.) He did not specifically address the current TUCP situation, but we wonder if there is a chance for violation of the Basin Plan under new Water Rights application process, the same conditions would provide a water quality threat in a new TUCO as well. I’m guessing as a lay person that if harm occurs, one could conclude that liability for environmental damage should be the same.

Project of questionable urgency….
How can an Order override responsibility to protect water quality in a situation that is not a true emergency, in our view. The definition of “urgency” needs to be redefined in this case. We don’t see how a project, that has been unsuccessful for seven years can be viewed as an urgent measure. It is the dictate of the National Marine Fisheries Service (NMFS) Biological Opinion (BO) and it doesn’t consider environmental harm but to fish habitat, and in some cases, not even that. We request that information be included, if a TUCO is granted, as to the specific nature of the urgency.

In our view, an example of an emergency would be that due to a lack of adequate water/flow (not the case this year), fish will die. Perhaps a lack of cold water would also serve as an emergency. But simply saying the Estuary Project may help the fish, without any evidence to support that assumption, should not be considered urgent. There is no evidence provided from our area that the Estuary Project would either help or hurt the fish, while there is plenty of evidence to support the harm that can occur in the form of high temperatures, phosphorus, biostimulatory substances, toxic algae, human health issues, etc.

In our recent Fish Flow DEIR comments, RRWPC challenged use of the Estuary Project as a rationale for lowering flows (link is missing from SCWA site ). On page 14 of our comments we quote a paragraph from SCWA’s Russian River Estuary Outlet Channel Adaptive Management Plan 2015 (p.2) indicating that the project simply has not worked, let alone for the entire summer as the Biological Opinion envisioned it:
“Because of permitting issues, the outlet channel was not implemented in 2009. In 2010, the outlet channel naturally established itself for about one week at the end of June, and was then closed by ocean waves. After this closure, the Agency mechanically re-created the outlet channel. However, waves closed the outlet channel less than a day after implementation. Before the outlet channel could be re-established by the Agency, the lagoon breached, returning the estuary to tidal conditions for the remainder of the summer. Additional closures occurred in September and October, but large wave conditions and imminent flooding prevented efforts to create an outlet channel. In 2011, the inlet never closed long enough to warrant management action. Wave events caused a series of closures between the end of September and into November. However, the closures lasted a week or less, ending when rising lagoon water levels overtopped the beach berm and naturally scoured a new tidal channel. 2013 was similar to 2011 and 2012, with early summer and early fall closures ending when overtopping naturally scoured a new channel. In 2014, minimum instream flows on the Russian River were lowered due to drought conditions. So when the inlet closed in September and October, these lower inflows slowed the rate of lagoon water level rise, enabling two back-to-back closures. The September closure lasted more than a month and the October closure lasted about three weeks. These closures persisted beyond the lagoon management period, and were artificially breached.”

There have been no proven benefits to fish as a result of the Estuary Project over the last seven years. The project has not been implemented but for one week in June, 2010. In the Russian River Biological Status and Data Report for 2014-2015 gave data on fish distribution and abundance. It states on page 4-152, “During 2014, a total of 56 steelhead were captured (Table 4.4.1) in 200 seine sets.” (3.57 steelhead per set with a total of all fish in all sets containing 11,351 fish) In 2013, 67 steelhead had been caught in 150 seine sets. (0.45 per set). See Figure 4.4.4 from the same document (p. 4-156: link above) showing that between 2004 and 2014, only 2008 went above the 1 fish per set mark.

Charts on page 4-157 also indicate the paucity of juvenile steelhead caught in 2014. Yet from 2010 through 2017 there was only one week during which these fish would have been served by the Estuary Project. One NMFS official told me that while they are not seeing many fish in the Estuary in summer, they are pleased that some they have seen seem fat and happy and thriving in salt water conditions. If the fish prefer other summer habitats, like Dry Creek, and those residing in the brackish water are doing fine, why are we going to all this trouble and expense while causing river problems besides?

Russian River algae….
2009 was an extremely low flow year and a great deal of algae was noted, especially in the Monte Rio area (about ten miles upstream of the river mouth). Regional Board, Public Health, and Fish and Wildlife were called (by RRWPC) down to the river to take samples as we were concerned about toxic algae, although none had been verified to that point in time. We were told that one of the samples from Monte Rio Beach tested positive for low density cyanobacteria, but since then there have been more positive samples in the area. (We attach RRWPC’s 2009 Photo Report on lower river flows and algal blooms. (Attachment #5)

Toxic algae has become more and more of a problem in California, the nation, and the world. It is a mysterious and not yet fully understood, but is exacerbated by low flows and stagnant waters (close to bank where water tends to be most polluted), while aided by excessive phosphorus and other nutrients and high water temperatures. The lower Russian has all of those conditions, but has come to the attention of Sonoma County officials only in the last two years when a dog died suddenly from toxic algae (verified by public health). Since then, much more study has ensued by the local Public Health Department and Regional Board (Steve Butkus of RB1 has worked on this.).

Over the years, RRWPC had heard of a few unverified stories of healthy dogs getting suddenly very sick and some died, but these went unreported. We did a photo report of algae in 2009 (a naturally low flow summer) and have taken many pictures since then. I submit a few recent pictures as well from Monte Rio Beach. (Attachment #6) It turns out that those pictures were taken in an area where toxic algae is commonly found. (Jeff Church and Steve Butkus have each noted this in their monitoring). Apparently, the green algae, which is not toxic, can nurture the toxic forms that may be attached.

Furthermore, phosphorus at about 15 different stations in the lower river consistently exceed EPA recommended criteria. (“Total phosphorus exceedances constituted 86.5% of FRESHWATER samples collected in 2015.” Jeff Church: 2015 Lower Russian River and Estuary Water Quality Monitoring; jchurch@scwa.ca.gov screen shot of phosphorus monitoring from 2015. (Attachment #7 ) (We don’t have 2016 data yet.) Nitrogen was below EPA recommended levels. (Jeff also has other water quality data; he’s been collecting data on the lower river for many years. He is also the person who monitored for algae and toxic algae in the lower river and is very knowledgeable about lower river water quality. Data results can be found in Russian River Biological Opinion Status and Data Report for 2014-2015.

Water quality data has been collected by SCWA over the last six years in the lower river and much longer upstream. (Some appears on their website in Biological Opinion section. Contact Pam Jeane for data sond information.) While their data sond at the dam has been down for over a year, they have readings going back many years from Johnsons Beach, about 8 miles downstream. The sond collects data on temperature, pH, depth, turbidity, DO, etc. (Attachment #8: screen shot of one day’s sond data from Johnson’s Beach in Guerneville, about 8 miles downstream of SCWA’s rubber dam.)

Furthermore, the prospect of even higher water temperatures that may be exacerbated by low flows, can be very disruptive to salmonids Current temperatures in July and August average around 20 to 25 degrees centigrade through early September at Johnson’s Beach and other lower river locations. Most salmonids in summer are found in Dry Creek and a few other tributaries. RRWPC has no problem with this project being conducted after Labor Day for the following reasons:
• Temperatures begin to drop in early September.
• Mouth closures begin to occur as the ocean begins to roil up.
• Usually phosphorus levels begin to diminish and probably toxic algae also.
• Recreation begins to subside.

Should we chance someone getting sick from toxic algae (which tends to be along the banks where children play and dogs run around) for a project that is an experiment that has succeeded for only one week in a seven-year period? (See 3 photos taken west of bridge at Monte Rio Beach: Attachment #6) There is no way of telling whether algae in the pictures are toxic by looking at them. (Toxic algae commonly attachs to green algae and can sometimes get free and get mixed in the water column when the river goes from tidal to lagoon and back again.) SCWA and Regional board staff did identify examples of toxic algae in the lower river. (Please see pages 21-23 of Russian River Biologcal Opinion Status and Data Report 2014-2015. Link is two paragraphs above.) This report used to be in their Biological Opinion section of their website, but they took the link down. You can access document through link in our DEIR comments. Document also gives water quality data for that time period.)

Please read RRWPC’s and Lozeau’s DEIR comments for more details on our concerns. (Attachments #1 & #2)

SCWA’s “Supplement to April 2017 Temporary Urgency Change Petition”….
SCWA’s Supplement makes it clear that the ONLY reason for requesting the TUCO is because of the demand of the Biological Opinion, which calls for lowering minimum flows in the Russian River from the Dry Creek confluence to the river mouth from 125 cfs (Decision 1610) to 70 cfs during normal rain years, a decrease of about 44%, as measured at Hacienda, about 20 miles upstream of the mouth.

There is a statement on page 6 that claims lower flows will prevent the need for breaching in order to minimize flooding in the lower river; but river flooding is a NON-ISSUE FOR THE MONTHS OF JULY AND AUGUST!! The intent was that when the mouth closes, river rises in Jenner and threatens to flood properties. But the only property that has ever been threatened in summer, and then even briefly and at very low level (8’), is the State’s Visitor’s Center in Jenner. They talk of the need to sustain mouth closure with low flows, but conditions that would make the project possible in those months, seldom exists. Furthermore, there are almost no breachings in July/August (at least since 2000) and the mouth remained open even during low flows. (Attachment #9: Breaching information from SCWA through 2009. We received data through 2016 in separate documents which we temporarily couldn’t locate. We could make those available at a later time if necessary.)

Ostensibly, flow decreases will allow for “more natural flows” which will facilitate the development of a fresh water lagoon at the mouth for as long as the entire summer season. (In the BO “natural flows” are equivalent in meaning to “low flow”.) The assumption is that before the dams, natural flows were much lower and even ephemeral in some places. As mentioned earlier, there was only one week in the last seven years that SCWA was able to establish the conditions called for in the Estuary. (June 2010) Yet there were times when low flows were in effect, but the mouth nonetheless still remained open. Four dams now exist that will not be removed any time soon, and prohibit mimicking flows of bygone years. (Of course, all the altered land use, gravel mining, timber harvest, vineyard development, etc. have also greatly impacted natural conditions.)

Except during drought years, natural tributary flows (runoff from tributaries in spring) usually keep the lower river over 125 cfs in May and June and minimum low flows are not an issue. In any case, recreation and water quality impairments are less of an issue during that time of year. In July the mouth only closes occasionally (a condition needed to initiate the project) and then usually for a relatively short time. In August, the mouth seldom closes at all. (We looked at SCWA data from the last 10-15 years.)

As for SCWA breaching of the mouth, it almost never happened in July and August since about 2000; these are the two months that concerns us most about low flow since it is the time when large numbers of visitors come to the river for recreation and when toxic algae is most likely to bloom, potentially exposing large numbers of people and pets. Other water quality perimeters, such as pathogens, temperature, and other nutrients can also be a concern at that time, and the algae is most prolific at the edge of banks where children and animals play. (Note: See pages 13 – 18 of our DEIR comments, and data attached.)

Among the seven issues listed on page 6 of the Supplement, we are mainly concerned about the one: “changing Estuary management” (i.e., implementing the Estuary Project). We pointed out that changing estuary management (May-October) has been fruitless thus far and there is no reason to believe that it will not continue to be so. The fact that the BO anticipated that the mouth could remain closed for an entire season was rather naïve in our view. In our DEIR comments (Attachment #1), we describe an historical study on river mouth by Dane Behrens and John Largier. (Attachment #10) The study describes changes over the years, indicating that assuming what was true in the past can be replicated in the future is not likely. The Russian River mouth has a habit of changed conditions.

Towards the bottom of page 6, the Supplement basically states that this petition is being filed to accommodate the Biological Opinion, a document that has had no public review and does nothing to address other laws and requirements. It fails to look at other environmental issues and we don’t believe that it even analyses the impacts to the fish themselves by changed conditions that may cause negative and harmful impacts (such as showing no concern about biostimulatory conditions in the lower river. Now the TUCO is likely to be issued under similar circumstances. There is no true urgency to this lower river project, and it is possible that it will cause more harm than good.

Regarding Criteria for approving TUC change to permits…

There are four criteria listed on page 7:

The permittee or licensee has urgent need to make the proposed change.

NMFS is in charge of the Endangered Species Act for salmonids in our area. As a person who cares about all aspects of the environment, it is not our aim to curtail the ESA. Nevertheless, it is critical to look at the effects of this action and most of all, at a minimum, figure a way to determine whether the project can accomplish the goal. The BO calls for a permanent significant 44% change in flow in lower river during summer months, in order to conduct an experimental project where they have proposed no extenuating conditions for when the project causes harm (or success). (Data indicates that lately there have been few steelhead in the estuary in July and August.) The BO includes no measurement goals to determine project success. It is an open-ended effort.

The proposed change may be made without injury to any other lawful user of water. If this applies to surface river water, certainly there will be potential for harm to humans and pets recreating in the river because of the toxic algae and possibly exposure to more pathogens as well. Also, in Regional Board comments, there is concern about greater exposure to toxins that can bio-magnify in lower flows. There are concerns about already excessive temperatures getting worse and dissolved oxygen decreasing.

Sweetwater Springs Water District in Guerneville submitted comments on the Water Rights Petition stating that adding new water rights for Windsor and Occidental will affect their prior rights during dry years. As a Sweetwater rate payer, I am very concerned about that also. (Attachment # 11)

The proposed change may be made without unreasonable effect upon fish, wildlife, or other instream beneficial uses. On page 4 of the letter to SCWA signed by Les Grober and Matt St. John of the Regional Board,(comment on FF DEIR) it states, “Though the proposed project seeks to support beneficial uses, there are also potential risks to water quality that must be fully considered and evaluated in the EIR. Decreased flows in the Russian River may exacerbate biostimulatory conditions, depress dissolved oxygen concentrations, increase temperatures and pathogen concentrations, and alter mercury and aluminum loading to the river. A range of project alternatives should be considered that will avoid and minimize and then mitigate these potential impacts while maintaining the project goals.” (Attachment #4) I would like to add that there may be other unmonitored toxins in the river that can bio-accumulate (such as pharmaceuticals, personal care products, etc.) and bio-magnify and ultimately exacerbate health concerns for people and wildlife.

The proposed change is in the public interest. Saving salmon is definitely in the public interest. But this project appears to do next to nothing for the salmonids in the lower Russian River and causes potential harm to people and pets. Can you help the fish and harm the public at the same time? That is a difficult question, but we know how the public would respond and have responded. (Please notice the approximately 700 protest letters submitted on the water rights petition.) If there were clear fishery benefits accrued to the Estuary Management Project, and clear goals intended to accomplish, it would be much easier to support some adjusted accommodation.

In addition, the 85 cfs buffer has caused great confusion. This needs to be more clearly explained. The extra 15 cfs is not put there to help the people who use the river, but rather to help SCWA manage the system. People don’t understand that however. It also must be noted that flows can go down to 60 cfs at times with no notice. The latter is definitely the level where recreation becomes virtually impossible (water levels come to the ankle around 80 cfs at most beaches). Also, there is unspoken glee among water contractors at these pending changes, as the more water that stays in Lake Sonoma, will help them with their ambitions for new growth and development. See article on County’s plans for over 3000 new housing units. This is one of many articles we have collected on growth plans. (Attachment #12)

There is the following statement on page 9 of the Supplement (Attachment #4): “It is possible that reduced flows in the Russian River may impair some instream beneficial uses, principally recreation issues. However, although some recreation uses may be affected by these reduced flows, any such impacts on recreation this summer will be reasonable in light of the impacts to fish that could occur if the petition were not approved.”

There is nothing to back up this statement (conclusion that impacts to fish would be worse than to recreation). The assumption that impacts on recreation are reasonable does not sit at all well with canoe operators and users. Linda Burke hears nothing but complaints from her customers when river is below 90 cfs. Also, the Russian River is 110 miles long. There are some places where lowering flows might make sense, but to lower it throughout by 44% is an extreme measure, especially when so little has been done to address the impacts there will be.

The lower river is a place where thousands of people come each summer to have fun, heal their souls, and rest their minds. Isn’t that important also?


Brenda Adelman

PS: I will only send attachments to Patricia, Don, and Matt. If anyone else wants attachments, I will send on request. We resubmit this letter here with Attachment numbers noted and links included in body of paper. (Another version, without attachments had been sent about five days ago.) Also, there have been revisions to this letter and we would like this version to be considered as our formal submission.

Note: I am having trouble locating my electronic copy of the State Water Board’s and Regional Board’s comments (Attachment #4)on the Fish Flow DEIR. I know that each agency has a copy however, but if necessary, can provide a copy at a later time.

Thank you.

CC: Don Seymour: SCWA
Pam Jeane: SCWA
Grant Davis
Jessica Martini-Lamb: SCWA
Todd Schram: SCWA
James Gore: SC Supervisor
Lynda Hopkins: SC Supervisor
Matt St. John: Regional Board
Bryan McFadin: Regional Board Staff
David Noren: Chair, Regional Board
Alydda Mangelsdorf: Regional Board Staff
Felicia Marcus: Chair, State Water Board
Les Grober: State Water Board- Dept. of Water Resources
Jennifer Calles: State Water Board
Bob Coey: NMFS
Eric Larson: CAF&W
Steve Mack: Sweetwater Springs Water District
Michael Lozeau: Lozeau-Drury LLP
Sonoma County Water Coalition

List of Attachments

#1: RRWPC protest to State re: SCWA’s DEIR on Request for Water Rights changes submitted March 10, 2017

#2: Protest submitted on behalf of RRWPC by Attorney Michael Lozeau

#3: Sample protest form letter circulated

#4: State Water Board and Regional Board joint comments on SCWA’s FF DEIR

#5: RRWPC 2009 Photo Report

#6: 3 algae photos: Monte Rio Beach: 2016

#7: Screen shot: graph showing total phosphorus exceedances for 2015

#8: Screen Shot: sample Johnson Beach data sond results for one day in 2009

#9: SCWA’s breaching and mouth closure data

#10: Dane Behrens & John Largier, Episodic Closure of the tidal inlet at the mouth of the Russian River: A small bar-built estuary in California Geomorphology, May, 2013
#11: Steve Mack, Manager Sweetwater Springs Water District Draft Comment Letter on Fish Flow DEIR March 6, 2017
#12: Two Press Democrat articles on new housing:
Report: Sonoma County home construction in 2016 best since 2007, Rohert Digitale 4-27-17
Sonoma County calls for adding more than 3000 new homes over 5 years, J.D. Morris, 4-4-17