We recently submitted a letter to Chuck Bonham, the director of California’s Department of Fish and Wildlife, requesting that his agency provide overdue stream flow studies and minimum flow recommendations to the State Water Resources Control Board. The State Water Board is in turn responsible for managing instream flows and rights to divert water. Maintaining adequate instream flows to support native fish and aquatic organisms is a multi-agency effort, so it is important that CDFW provide their expert analysis to inform the State Water Board’s management. Read our letter below.
Re: Friends of the Eel River Urges the Department of Fish and Wildlife to Take Crucial Steps to Protect Instream Flows In Critical Portions of the Eel River Watershed
Dear Director Bonham,
Friends of the Eel River (FOER) is a nonprofit citizens’ group headquartered in Humboldt County. We have worked for decades to remove Scott and Cape Horn Dams on the mainstem Eel River as a key step to restore the Eel River’s once-abundant fisheries. FOER has also worked to reduce the impacts of commercial cannabis cultivation on critically imperiled salmon and steelhead populations of the Eel River watershed.
We have also reviewed an increasing number of applications to appropriate water from the Eel River and its tributaries. Unfortunately, the evidence we have seen strongly suggests that surface flows throughout the Eel River watershed are often, and we fear increasingly, impaired. Instream flow is the most important habitat element for fish. Maintaining flows that support salmon and steelhead is a critical foundation to any hope of fisheries recovery.
Like many experts with whom we have discussed these issues, FOER is increasingly concerned about the impacts of water diversions from both surface and subsurface sources on surface flows, and thus on fish and wildlife, in the Eel River and its tributaries. FOER and its members strongly support protecting instream flows in the Eel River and its tributaries for the benefit of fish and wildlife and other public trust purposes.
The state of California has long recognized the importance of protecting stream flows to conserving fisheries. In 1982, the California legislature passed Public Resource Code (PRC) Section 10000 et seq., specifically recognizing the significance of threats of cumulative effects on streamflow and adverse effects on fish and wildlife. The Legislature found, in pertinent part, that “(t)hese requests (to appropriate water), if approved without due regard for their cumulative effect on streamflows, could adversely affect, to a serious and significant degree, the fish and wildlife resources dependent on those streams and watercourses.”[i]
Taken together, PRC 10000 et seq. directs the California Department of Fish and Wildlife (CDFW) first to conduct flow studies, and on the basis of those studies, to make recommendations for minimum instream flows to the State Water Resources Control Board (SWRCB).[ii] While the SWRCB has jurisdiction over instream flows, CDFW’s flow studies and minimum flow recommendations are a critical exercise of the Department’s expertise and trust responsibilities with respect to fish and wildlife, as provided by California Fish and Game Code (CFGC) Sections 711.7 and 1802, and an indispensable element in the Water Board’s informed management of water resources.[iii]
Under PRC Section 10001, CDFW was first instructed to identify priority streams for conducting instream flow studies. Streams prioritized for study and recommendations should be those for which “minimum flow levels need to be established in order to assure the continued viability of stream-related fish and wildlife resources.” PRC Section 10002 states, in pertinent part, that “(u)pon completion of the proposed streamflow requirements for any individual stream or watercourse, the Director of Fish and Game shall transmit these proposed requirements to the State Water Resources Control Board.” PRC Section 10004 states that “(i)t is the intent of the Legislature that the department develop a program that will initiate studies on at least 10 streams or watercourses in each fiscal year.”[iv]
A generation after the passage of PRC Section 10000 et seq, the Department’s 2004 Coho Recovery Strategy specifically recommended enforcement of Public Resource Code 10000 and other relevant sections of the state Fish and Game Code as part of California’s strategy to prevent extinction of coho salmon.[v]
However, to our knowledge, CDFW has to the present day only partially complied with the requirements of PRC Section 10000. In 2008, CDFW submitted 21 stream flow studies with PRC Section 10000 recommendations to the SWRCB. The Big Sur River flow recommendation submitted to the SWRCB in 2017 appears to be the last such action taken by CDFW following PRC Section 10000 et seq. Nor has CDFW initiated 10 flows studies per year as PRC 10004 provides. This is of particular concern because these required flows studies are important in determining flows that support listed salmon.
A handful of additional salmon-focused stream flow studies were provided for in then-Governor Brown’s 2014 California Water Action Plan (CWAP). The Brown administration promised to “enhance flows” in “stream systems that support critical habitat for anadromous fish,” specifically noting that “the State Water Resources Control Board and the Department of Fish and Wildlife will consider their public trust responsibility and existing statutory authorities such as maintaining fish in good condition.”[vi]
The South Fork Eel River was one of the five streams designated for instream flow study by the CWAP. The South Fork Eel River was overdue for study, in FOER’s estimation, particularly given significance of the South Fork Eel River’s coho salmon run, among the largest remaining wild population in California.[vii] The South Fork has a number of tributaries very important to native salmon and steelhead. As part of the CWAP efforts, a flow study and instream flow recommendations were also prepared for Redwood Creek, one of the South Fork’s most consequential tributaries.
CDFW’s work showed, importantly, that surface flows in Redwood Creek are critically impaired. CDFW’s summary of its findings show that domestic riparian use demands alone outstrip declining instream flows during drought periods, without accounting at all for the substantial requirements of the commercial cannabis industry.
Studies provided to the Department, as well as the Department’s own analyses, show that coho and Chinook salmon and steelhead listed under the federal Endangered Species Act, as well as summer-run steelhead listed under the California Endangered Species Act, are being exposed to continuing and significant harms that not only amount to unpermitted take, but may actually jeopardize the survival of unique species.
The Department’s own August 15, 2022 presentation of Redwood Creek watershed conditions states that both in 2021 and in 2022, domestic demand alone exceeded the available flow of Redwood Creek. In both years, the Department estimated domestic demand as 65,717 g/d, while supply from stored water was less than half that, at 29,816 g/d. Even though the Department estimated that cannabis demand dropped dramatically from 2021’s 321,676 g/d to 2022’s 135,805 g/d, the estimated amount of water available from storage remained the same, at 26,941 g/d.[viii]
With such demands on Redwood Creek’s flow, it is not surprising that much of Redwood Creek and many of its tributaries went subsurface in both 2021 and 2022. In 2022, the Department reported that, of the three sites it was monitoring in Redwood Creek, one was disconnected for 26 days, beginning August 23, 2022, while another disconnected on August 19 and remained so for 56 days.[ix] Data collected by the Salmonid Restoration Federation show every reach of Redwood Creek except the lower mainstem going to zero flow for weeks or even months in the summer of 2021.[x]
The Salmonid Restoration Federation survey data also underscore that these streams remain habitat for steelhead, coho, lamprey, and other important fish species, with regular notes regarding all three species, among others.[xi] How long this can remain the case if the streams are regularly dried up is a question the Department itself is best qualified to address.
FOER respectfully requests that CDFW transmit completed flow study recommendations for the South Fork Eel River and flow studies for other priority South Fork Eel River tributaries to the SWRCB, as PRC Section 10000 et seq. requires, with appropriate urgency.[xii] CDFW’s Watershed Criteria Report No. 2021-02 includes flows protective of salmonids in each major tributary watershed of the South Fork Eel River.
As DFW staff have documented, flows in many South Fork Eel River tributaries have repeatedly become critically impaired in recent years. Unless affirmative measures are taken to prevent loss of flows, such conditions are certain to recur, with severe impacts to fisheries at minimum. Given the Department’s mandate and duty to protect the state’s wildlife and fisheries resources, the particular focus the Department and the state have given to salmon and steelhead protection and restoration, and the Department’s role in protecting species and habitats covered by listings under the state and federal Endangered Species Acts, it appears from our perspective that the Department has both a moral obligation and a legal duty to transmit its recommendations to the State Water Board without further delay.
We further encourage CDFW to uphold the mandate of PRC Section 10000 et seq. by developing instream flow recommendations for, at minimum, every salmon and trout stream in northwestern California.
Thank you for your time and attention to this urgent matter. We look forward to working with you to resolve this very important flow issue.
Sincerely yours,
Alicia Hamann
Executive Director
Enclosures:
- 2014 California Water Action Plan
- DFW Redwood Creek Watershed Conditions August 2022 public briefing
- DFW SF Eel River Watershed Criteria Report 2022
- Salmonid Restoration Federation, 2021 Redwood Creek Flow Monitoring Database
- DFW and Natural Resources Agency Redwood Creek Technical Report
[i] See California Code, Public Resources Code § 10000, which states:
The Legislature finds and declares as follows:
(a) A substantial increase has occurred in the number of requests to appropriate water from the various streams and watercourses of this state, especially for the purpose of generating electric energy.
(b) These requests, if approved without due regard for their cumulative effect on streamflows, could adversely affect, to a serious and significant degree, the fish and wildlife resources dependent on those streams and watercourses.
(c) These fish and wildlife resources are important for the entire state and are inextricably linked to the continued economic viability of industries, such as the fishing industry, which are desirable and important components of the state’s economy.
[ii] See especially PRC § 10001, “The Director of Fish and Game shall identify and list those streams and watercourses throughout the state for which minimum flow levels need to be established in order to assure the continued viability of stream-related fish and wildlife resources.”
[iii] FGC § 711.7 states that “(t)he fish and wildlife resources are held in trust for the people of the state by and through the department,” while FGC § 1802 provides that “(t)he department has jurisdiction over the conservation, protection, and management of fish, wildlife, native plants, and habitat necessary for biologically sustainable populations of those species.”
[iv] See PRC 10000 et seq.
[v] RW-XXXIII-A-01 Support enforcement of existing laws, codes, regulations, and ordinances that address the protection of coho salmon and their habitat. Habitat includes but is not limited to water (quality and quantity), pools, riffles, instream LWD, riparian vegetation and estuaries. Existing laws, codes, regulations, and ordinances include, but are not limited to FGC §§1600, 5650, 5900 through 6100 (with an emphasis on 5901, 5937, and 6100), PRC §§ 10000-10005, CESA, and the ESA.
[vi] 2014 California Water Action Plan announcement published by CNRA, CDFA, and CalEPA, p. 11.
[vii] Brown, L., and Moyle, P. Invading species in the Eel River, California: successes, failures, and relationships with resident species. Environmental Biology of Fishes 49: 271–291, 1997. DOI: 10.1023/A:1007381027518
[viii] Souza, K., Department of Fish and Wildlife, Redwood Creek Watershed Conditions slide deck, August 18, 2022. See slides 8 and 9.
[ix] Baruch, E., Department of Fish and Wildlife, Redwood Creek 2022 Data Report, March 16, 2023. See pp. 2-4.
[x] Salmonid Restoration Federation, 2021 Redwood Creek Flow Monitoring Database. See Column K, “CFS” on “All Flow Monitoring” worksheet.
[xi] Ibid, see column O, “Fish” on “All Flow Monitoring” worksheet.
[xii] To be specific, we request CDFW use the Functional Flows, Salmonid Habitat Optimal Flows, and Passage Flows in the Watershed-Wide Instream Flow Criteria for the South Fork Eel River as the basis for PRC 10000 flow recommendations. See CDFW. Watershed-wide Instream Flow Criteria for the South Fork Eel River. Watershed Criteria Report No. 2021-02. 77 pp.