Our Approach

Despite attention-grabbing world events and the unfavorable political climate, Friends of the Eel River continues to campaign on legal, administrative, and organizing fronts for Eel River restoration. With 2,100+ members, supportive funders and a highly skilled legal team, Friends of the Eel River is bringing the campaign to the people, the politicians, and the courts.

"Science and the law are on our side,"says Nadananda, FOER Executive Director. "Eventually we will prevail. We will achieve removal of the Potter Valley Project and restoration of the Eel River."

FERC Refuses to Consider Decommissioning the Potter Valley Project

FOER is following a five-pronged legal strategy for restoring the Eel River. First, in June 1998, FOER intervened in the Federal Energy Regulatory Commission's (FERC's) relicensing proceedings for the Potter Valley Project (PVP). Since construction of Scott Dam in 1922, the PVP has diverted up to 98 percent of the Eel River's summer flows to the Russian River. This FERC proceeding has been underway since 1983, and is ostensibly intended to ensure that the PVP is operated in a manner that protects the Eel River's fish and wildlife resources. FOER asked FERC to consider the alternative of decommissioning the PVP (i.e., removing Scott Dam and Cape Horn Dam). Scott Dam blocks the migration of coho and chinook salmon and steelhead to hundreds of miles of high-quality spawning and rearing habitat essential to the survival of these three salmonid species.

Unfortunately, FERC refused to consider this decommissioning alternative in the Environmental Impact Statement (EIS) it prepared in connection with the relicensing process. Instead, FERC and its draft EIS have considered only modest increases in the minimum stream flows below these dams, a small concession that is inadequate to improve river habitat and does not restore fish access to upstream spawning and rearing habitat. Even the National Marine Fisheries Service (NMFS), a federal agency that rarely opposes dams, has found that FERC's plan for the Eel River would further jeopardize the survival salmon and steelhead, in violation of the Endangered Species Act. FOER has submitted extensive expert testimony from Professors Robert Curry and Terry Roelofs and legal briefs by FOER's attorney, Stephan Volker, in support of its request that FERC not only consider but require removal of these dams in order to restore the Eel River's endangered salmonids. After NMFS submits its final biological opinion on FERC's plan on April 6, 2001, FERC is expected to make a final decision regarding future operation of the PVP. If FERC fails to give full and fair consideration to the alternative of decommissioning in its final report, FOER plans to seek review of FERC's decision in the Ninth Circuit Federal Court of Appeals in San Francisco.

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Water Agency Robs Peter to Pay Paul

The second prong of FOER's legal strategy involves state court review of the existing and planned future diversions of Eel River water from the Russian River. For decades, the Sonoma County Water Agency has diverted most of the Russian River's summer flows for agricultural and urban needs, and used the Eel River water diverted through the PVP to satisfy minimum flow requirements established by the State for the Russian River's fish and wildlife. In December 1998, the Sonoma County Water Agency (Water Agency) approved a proposal to increase the amount of water it diverts from the Russian River from 92 million gallons per day to 149 million gallons per day, resulting in an annual increase in diversions from 75,000 acre-feet to 101,000 acre-feet. This increase would use 92% of the water stored in Lake Sonoma, the only body of surface water that could replace the 181,000 acre-feet annually diverted from the Eel River. In approving this Water Supply and Transmission Project, the Water Agency failed to consider its impacts on the Eel River, and the suburban sprawl that would result from the increased water supply.

For this reason, in January 1999 FOER filed suit against the Water Agency's plan in Sonoma County Superior Court. FOER's lawsuit challenging the Water Agency's plan was bifurcated into two trials, the first of which was conducted in August of 2000. The second phase of the case will be heard January 30, 2002. The primary issues raised are (1) whether the Water Agency's EIR violates the California Environmental Quality Act (CEQA) because it ignores the PVP's extremely deleterious impact on the Eel River and its salmonid fishery, and (2) whether the Water Agency's increasing reliance on PVP diversions that annihilate the Eel River's fishery violates the Public Trust Doctrine, the Sonoma County General Plan, and related laws. Following the first hearing August of 2000, Sonoma County Superior Court Judge Lawrence Antolini ruled that the Water Agency had no duty to consider the impacts of its water diversions on the Eel River, a decision that FOER plans to challenge in the court of appeal as soon as the next hearing on our second point is completed. According to FOER's attorney Steve Volker, CEQA requires the Water Agency to disclose the adverse impacts of the PVP on the Eel River and its fishery because most of the water diverted by the Water Agency originates in the Eel River. Judge Antolini failed to recognize that the Water Agency's project would increase the County's dependency upon the PVP's harmful Eel River diversions by removing Lake Sonoma as a possible source of water to replace the water presently diverted from the Eel River.
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Water Agency Lacks Consumptive Water Rights to the Eel River

The third prong of FOER's legal strategy is to secure an order from the State Water Resources Control Board curtailing the consumptive use of Eel River water by the Water Agency and others. In YEAR the Sonoma County Water Agency filed an application with the State Water Board for consumptive water rights to the 26,000 acre-feet of additional water that the Water Agency proposes to divert from the Russian River. Because most, if not all, of this water would originate from the Eel River, FOER filed a protest opposing the Water Agency's application. The Water Agency has subsequently requested lengthy extensions of time to respond to FOER's legal papers.

According to FOER's attorney Steve Volker, "The Water Agency has sought to delay our protest because it knows that the PVP's Eel River diversions violate state laws. For decades, the Water Agency has been receiving millions of dollarsí worth of Eel River water for free, while the Eel River has been stripped of its fishery, economy, and recreation. We are confident that the State Water Board will agree that this imbalance must be corrected."

FOER intends to present extensive expert testimony to the State Water Board documenting the extreme adverse impacts of the PVP's diversions of water on the Eel River.
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PG&E'S Proposal to Sell The Potter Valley Project to the Water Agency Fails

The fourth prong of FOER's legal strategy is to prevent PG&E from transferring the Potter Valley Project to an utility or water district that would operate the system with even less regard for its adverse impacts on the Eel River's fish, wildlife, and recreation. Following deregulation of California's electric utilities in 1996, the Sonoma County Water Agency and other parties expressed keen interest in acquiring the PVP, primarily for its capacity to deliver nearly 200,000 acre-feet of water annually for agricultural and urban consumption. In May 1998 PG&E applied to the California Public Utilities Commission (CPUC) for permission to dispose of its hydroelectric assets, including the PVP. FOER filed a timely motion to intervene in this proceeding, opposing PG&E's application on the grounds that it assumed that the PVP should be transferred to a different owner/operator rather than simply decommissioned.

Pointing out that decommissioning "would avoid or mitigate significant environmental harm while saving PG&E's ratepayers millions of dollars," FOER urged the CPUC to reject PG&E's application until a detailed review of the environmental costs of the PVP was conducted. Faced with mounting public concern over its proposal, PG&E withdrew its application in the summer of 1999.

In September 1999, PG&E asked the CPUC for permission to auction off its hydroelectric facilities in May 2000, without any environmental review. Again, FOER intervened, urging the CPUC to require preparation of an environmental impact report evaluating the PVP's harm to the Eel River. The CPUC granted FOER's request, triggering a lengthy environmental review process that precluded PG&E's quick-auction scheme. Shortly after the CPUC's Draft EIR on PG&E's proposed divestiture was released in November 2000, California's emerging "energy crisis" prompted the California Legislature to ban all sales of PG&E's hydroelectric facilities for a period of five years. But for FOER's insistence on preparation of an EIR, PG&E's original auction proposal might have been approved, and the PVP might well have been transferred to the Sonoma County Water Agency in 2000. FOER will continue to participate in all further CPUC proceedings regarding any possible transfer of the PVP to a different owner/operator.
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The Wild and Scenic Rivers Act Requires Restoration of the Eel River

FOER's fifth legal strategy is to enforce federal laws that require restoration of the National Wild and Scenic Eel River. All federal agencies that manage lands and waters within the Eel River's watershed, including FERC, the U.S. Forest Service, and the Bureau of Land Management (BLM), have a duty under the Wild and Scenic Rivers Act to restore this river's salmonid populations to healthy levels. Thus far, none of these agencies has prepared the comprehensive river management plan required under this statute, nor taken any other actions necessary to restore the Eel River's natural flows and prevent extinction of its salmonids. Based on court rulings obtained in other lawsuits brought under the Wild and Scenic Rivers Act, FOER intends to file a lawsuit in federal court requiring FERC, the Forest Service, and BLM to promptly take steps necessary to ensure recovery of the Eel River's endangered salmon and steelhead populations.
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Multi-Tasking is a Key Part of FOER's Strategy

While the legal proceedings outlined above are underway, FOER continues its community mobilization, public education, media outreach, and advocacy campaigns to ensure that our court victories are not ignored or forgotten by the vast state and federal bureaucracies charged with administering the laws that FOER seeks to enforce. Your active support for and participation in these educational and advocacy campaigns are essential to the success of FOER's legal strategies.