Linking State and Federal Jurisdictions
The Foothills Water Network seeks to negotiate enforceable requirements for environmental remediation for 6 water supply dams and 3 wastewater treatment projects under the jurisdiction of the California State Water Resources Control Board.
These dams and wastewater treatment facilities are located downstream of the Yuba-Bear and Drum-Spaulding Hydropower Projects in the Yuba, Bear, and American watersheds. The Yuba-Bear and Drum-Spaulding Hydropower Projects are currently under FERC relicensing under the jurisdiction of the Federal Energy Regulatory Commission (FERC). In the Yuba-Bear Relicensing, the Network tried to get FERC to include river reaches downstream of NID's water supply diversions that are impacted by a combination of NID's hydropower and water supply operations. NID argued, and FERC determined, that water supply facilities and river reaches they impact are not within FERC's jurisdiction. Accordingly, in order to achieve comprehensive restoration of the watersheds and seek remediation for the negative impacts of hydropower, water supply and treatment systems, the Network has engaged in the State Water Resources Control Board water rights process.
Protest and Negotiation of NID's Water Rights
NID filed a petition to change its water rights with the SWRCB.
The Foothills Water Network, California Department of Fish and Game, and National Marine Fisheries Service protested NID's petition.
Network representatives have been meeting with a committee from NID and a DFG representative to negotiate remediation measures for terms of dismissal. The members of the committee include:
Protestants participating in the negotiation committee:
The Foothills Water Network Coordinator seeks to represent and include the interests of the Network's member who are signatories ot the protest but do not participate in the negotiating committee. These include: American Rivers, Northern California Federation Fly Fishers, Sierra Salmon Alliance, Save Auburn Ravine Salmon and Steelhead, Auburn Ravine Preservation Committee Ophir Property Owners Assoc., Inc., and Friends of the River
The Committee has begun drafting remediation measures to be used as terms of dismissal of the protest. In order to negotiate some measures, the Committee found it needed some data. NID conducted studies of instream flow and sediment relation to fish habitat on the Bear River downstream of Combie Reservoir and on Deer Creek downstream of Lower Scotts Flat Reservoir.
These river reaches under negotiation include:
Water Rights Process
A water right is a legal entitlement authorizing water to be diverted from a specified source and put to beneficial, nonwasteful use. Water rights are property rights, but their holders do not own the water itself. They possess the right to use it. The exercise of some water rights requires a permit or license from the State Water Resources Control Board (State Water Board), whose objective is to ensure that the State's waters are put to the best possible use, and that the public interest is served.
Water right permits carefully spell out the amounts, conditions, and construction timetables for the proposed water project. Before the Board issues a permit or a change in permit, it must take into account all prior rights and the availability of water in the basin. The Board considers, too, the flows needed to preserve instream uses such as recreation and fish and wildlife habitat. Records of water appropriation and use statewide are maintained by the State Board's Division of Water Rights. Any petition for change in purpose, place of use, or point of diversion requires Board approval.
Interested parties can protest the petition for change of use of a water right permit. The State Board takes actions to resolve any protests that have been filed on petitions for change. If both parties can agree to mutually acceptable conditions, the protest is resolved at this point in the process. In the event it is not resolved for small projects, the issue may be solved through an engineering field investigation report from the Board's Division of Water Rights. For appeals from the report and for large projects, a formal hearing is held before one or more members of the State Board. The Board's decision is based upon the record produced by the hearing.
Water Rights on the Yuba, Bear, and American WatershedsThere are many water rights holders in the Yuba, Bear, and American watersheds. NID, PG&E, and PCWA are three of the major water rights holders. Other water rights holders in these watersheds include: the City of Lincoln, Yuba County Water Agency, Sacramento Municipal Utility District, South Sutter Water District, as well as individual and company water rights holders.
Under its present post-1914 permits and licenses, NID has rights to a total of 450,000 acre feet (af) of water per year. (Kleinschmidt Associates, Raw Water Master Plan Update - Phase I Technical Analysis Draft Report, 4-14 (Sept. 2005). Of that water, on average only 356,725 af is available to NID due to dead storage and minimum pool requirements. Id. NID also has pre-1914 rights to 3,339 cfs and 203,905 af per year. In addition, NID can purchase up to 100,000 af from PG&E, although it rarely exercises this right. (Kevin Goishi, Personal Communication on facilities tour, 2005). NID's total reservoir capacity is 349,500 af. Simply adding all of these rights together would reveal a much larger right than NID actually holds. For several of its rights, NID holds "sister" rights - two rights that are essentially rights to the same water, but for consumptive and non-consumptive purposes. Nevertheless, adding all of NID's claims together reveals that NID is asserting rights to a significant amount of water.
NID is presently in the process of licensing several of its permits, and the SWRCB is therefore inspecting the extent to which NID has put water to beneficial use. Because generally more water is claimed than can actually be used, it is likely that the SWRCB will decrease NID's rights in its final licenses.PG&E's Water Rights-Drum-Spaulding Project No. 2310
PG&E holds 110,646 af in storage rights each year and 1,836.85 cfs in pre-1914 rights. In addition, PG&E holds licenses to 98,234 af storage rights and 1,445 cfs direct diversion. Although only 26,662 af of its licensed water rights are for consumptive purposes, PG&E's pre-1914 rights are almost all for consumptive as well as non-consumptive purposes. Thus, PG&E is able to sell a great deal of water to both NID and PCWA as outlined in more detail below.
First, PG&E is unique in that it has obtained licenses for all of its post-1914 rights. Furthermore, the majority of PG&E's consumptive water rights are pre-1914 rights, which could be well supported by its long history of water use in this area. Furthermore, PG&E's rights are still subject to requirements to protect the environment.PCWA's Water Rights-Middle Fork American Project No. 2709
PCWA has rights for both consumptive and non-consumptive use of 315,000 af per year as well rights to direct diversion of 4,910 cfs for power and incidental recreation, and 2,025 cfs consumptive direct diversion rights, which overlap with the non-consumptive rights. PCWA does not hold any pre-1914 rights, and it has licensed only one of its rights, a small direct diversion power right. PCWA reports that two of its rights, permit no. 20,754, and license no. 12,644, "were issued to the PCWA by the SWRCB to authorize power use of water released from Hell Hole Reservoir for stream maintenance and fishery purposes." Id. at 6.3-6. PCWA's permits specify that PCWA must place all the water claimed under its permits to beneficial use by December 1, 2007, unless it can show "good cause" for the extension and obtain approval from the SWRCB. Cal. Water Code §1398 (Correspondence with SWRCB Staff). PCWA will apply for an extension, however, if it does not obtain an extension, PCWA will have to commence the water rights licensing process. Cal. Water Code §§ 1600, 1605 (Conversation with Einar Maisch, PCWA Director of Strategic Affairs, Aug. 18, 2006).
PCWA states that it "holds sufficient water rights to fully utilize all MFP facilities, including reservoir storage and diversion through tunnels and powerhouses. PCWA's water rights are sufficient to meet all current and reasonably foreseeable consumptive delivery obligations." Id. at 6.3-7. However, "an agreement with the United States limits PCWA's consumptive use of water under Permits 13856 and 13858 allow up to a maximum of 120,000 acre-feet of water annually." Draft Existing Resource Information Reports First Series 6.3-7 (Aug. 2006) (available at: http://relicensing.pcwa.net/existingresource.php).
PCWA purchases water from PG&E's Drum-Spaulding Project PCWA has been able to capitalize fully on its American pumps to meet its required water deliveries. Furthermore, negotiations under the Water Forum Agreement have limited PCWA's options. (Conversation with Einar Maisch, PCWA Director of Strategic Affairs, Aug. 18, 2006). "PCWA's specific Water Forum commitment includes limiting total usage to amounts commensurate with PCWA's water rights and water usage contracts, and an obligation to attempt to release additional water to the Middle Fork American and Rubicon rivers in the driest years." Id. at 6.3-9. "PCWA has committed, under certain conditions, to release up to 27,000 af of water, over and above the amount diverted to use, in years when the total unimpaired inflow into Folsom Reservoir is expected to be below 950,000 af." Id.
Relationship between NID, PG&E, and PCWA Water Rights
The majority of these contracts with PG&E were entered into when NID and PCWA were constructing their projects; the strength of the contracts allowed them to sell revenue bonds to finance the projects. All of these contracts will expire upon the expiration of the FERC licenses in 2013. As such, these contracts will be subject to renegotiation and may not be renewed. The renegotiation of these contracts will be influenced by the beneficial and sometimes necessary relationships between the parties. For instance, current contracting conditions, allow NID to share PG&E water supply space in its diversion structures without which they could not maintain current operations without significant new construction. If PCWA could not continue to purchase consumptive water from PG&E, it would also have to construct additional pumping facilities from the American River or satisfy its water delivery obligations in other ways. In short, although NID and PCWA have historically been tied to PG&E, the relicensing and expiration of water contracts will essentially open a window of opportunity for change.
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