Monday, November 18, 2019     Volume: 20, Issue: 37
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Santa Maria Sun / Cover Story

The following article was posted on October 16th, 2019, in the Santa Maria Sun - Volume 20, Issue 33 [ Submit a Story ]
The following articles were printed from Santa Maria Sun [santamariasun.com] - Volume 20, Issue 33

State requirements face off with federal law in a recent decision requiring more water from Lake Cachuma for steelhead

By CAMILLIA LANHAM

For more than 20 years, California pondered what to do about steelhead in the Santa Ynez River. 

On Sept. 17, the State Water Resources Control Board finally made a decision. It voted to pass an order that will increase water releases from Lake Cachuma. 


HABITAT FOR DAYS
The State Water Resources Control Board ordered the U.S. Bureau of Reclamation to conduct a feasibility study which looks at a fish passage over Bradbury Dam that could give steelhead access to the upper reaches of the Santa Ynez River Watershed, such as the pools near the Red Rock Day-Use Area.
FILE PHOTO BY CAMILLIA LANHAM

Since at least 1998, a handful of local, state, and federal agencies and environmentalists have deliberated just what it would take to sustain a fish species on the brink of extinction. The answer has always been water. It was just a question of how much. 

“The fact that this went on for so long ... is not anyone’s fault. It’s simply a matter of circumstances,” board member Tam Dudoc said during the Sept. 17 hearing.

The circumstances she’s referring to: The big California drought, which officially ended in March 2019 after more than seven years. It took up a lot of the water board’s time, energy, and resources.

Dudoc is the only board member remaining from 2012, the last time the water board heard about the Cachuma Project, steelhead, and the U.S. Bureau of Reclamation (which operates the dam). That year, the board received a final environmental impact report on the potential changes but didn’t certify it. 

Water debates over Lake Cachuma are much more complicated than steelhead. During a presentation at the Sept. 17 hearing, Michael Buckman from the water board’s Division of Water Rights said that when Bradbury Dam was erected in 1953, more than fish lost water flow. The communities along the Santa Ynez River below the dam rely on that water, too, either directly from the river or through groundwater recharge.

“One of the impacts that it had when they built the dam was, one, to potentially block the water flowing down to those downstream water rights holders, potentially causing injury to them both in [water] quality and quantity as well as provide a barrier to any migrating fish traveling upstream of the dam,” Buckman said. “Ever since then, we’ve been trying to—the board has been trying to—determine what the requirements are necessary to protect those downstream water rights holders and the public trust resources.” 

Almost everyone in Southern Santa Barbara County relies on the water backed up behind Bradbury: the South Coast communities of Montecito, Goleta, Santa Barbara, and Carpinteria and the downstream communities of Lompoc, Buellton, Solvang, and Santa Ynez. 

Changing how much water gets released from Bradbury Dam for fish has the potential to affect all of the water rights holders in the system. 

Kevin O’Brien, an attorney representing some of the South County water districts that depend on Cachuma, told the water board on Sept. 17 that he took issue with using a report from seven years ago to make a decision on water releases. 

“You had a pretty serious drought in the interim, and other things, but the point I want to make is that this is an old environmental impact report. You’ve had significant drought, fire, in the water shed,” O’Brien said. “We’re not generally a big fan of delay, but we think it’s important to get it right.” 

He spoke on behalf of the Cachuma Conservation Release Board, a joint powers agency that consists of the city of Santa Barbara, the Goleta Water District, and the Montecito Water District. He started his comments by referring to something Gov. Gavin Newsom mentioned in his State of the State address this year. 

“California, in terms of water, needs to get past the old binaries: environmentalists versus farmers, the north versus south,” O’Brien said. “And I would add one to that. That is cities versus fish.” 

An already short supply

The goal of the water board’s order is to provide additional rearing habitat for steelhead below the dam. Steelhead, which swim to the ocean when they become adults and return to spawn, are what’s know as a public trust resource (a natural resource protected for the public by the government), something the water board is required to protect and enhance. 


RELEASE BY WATER YEAR
Although the recent order from the state water board requires the U.S. Bureau of Reclamation to increase water releases for steelhead, those releases wouldn’t happen in a year like 2014, when Cachuma Lake’s water levels suffered from consecutive years of below-average rainfall.
FILE PHOTO BY HENRY BRUINGTON

Buckman, with the Division of Water Rights, said that before Bradbury was built, the Santa Ynez River historically had runs of between 20,000 and 30,000 steelhead. Now, that population size is at less than 100. 

“Current flow conditions are insufficient to restore and keep steelhead in good condition as required by our public trust obligations,” he said during his presentation. 

By requiring additional water flows for steelhead below the dam in only wet and above-average rainfall years, he said, the water board could minimize water supply impacts and increase spawning habitat by as much as 25 percent and rearing habitat by as much as 14 percent. It could reduce the amount of water available to other users by a little less than 4,000 acre-feet in normal, dry, and extremely dry years. 

It would be a problem for water rights holders if Santa Barbara County experiences anything similar to the most recent drought, when state water project supplies were significantly shorted and the reservoir was unable to fill with runoff. Lake levels were so low, Cachuma needed to install emergency pumps to push water to South Coast water users. The surface water flows released from Bradbury Dam were also shorted, and groundwater basins along the Santa Ynez River weren’t able to recharge, which forced at least one of the water districts in Santa Ynez to close a couple of its wells due to water quality concerns.

Water board member Dorene D’Adamo said that drought conditions persisted at Cachuma while the rest of the state’s reservoirs were filling up, adding that the region stayed in the “extreme drought” classification category as other areas of the state pulled out of the drought.

“This is an area that has a challenge, and that will continue to have a challenge,” D’Adamo said during the hearing. “What’s really missing in the order is a more complete understanding that the region already has a difficult time with having a sufficient water supply simply because of where it’s located and the hydrology of the region.” 

She said 3,788 acre-feet of water is significant if you’re a community the size of Lompoc or Buellton. 


HERE FISHY, FISHY
Dr. Dimock (left) and Charles Reed show off their steelhead catch of the day on Jan. 31, 1912, from the Lompoc Fishing Grounds on the Santa Ynez River.
FILE PHOTO COURTESY OF NOAA

“We’ve been so focused on the human right to water, and that is what this is about,” D’Adamo said of the water board’s priorities. 

The water rights holders would share the potential shortage, which board member Sean Maguire said would only take place in the most extreme circumstances. 

Although the Sun reached out to several of the municipalities that depend on Cachuma for water, the city of Lompoc was the only one that responded with a comment on the water board’s decision. Lompoc’s municipal water supply comes from groundwater that’s recharged through water releases from Lake Cachuma. As a water rights holder, Lompoc is the farthest downriver from the dam. 

“We understand how important Lake Cachuma operations are to others in the area, including environmental interests. Because of our city’s commitment to regional collaboration, we spent years negotiating a settlement agreement that protects the city water supply and quality, while also meeting needs of the other stakeholders,” said an emailed statement from city Public Information Officer Samantha Scroggin. “This action by the California State Water Resources Control Board is a disappointment to the city of Lompoc and fails to support the settlement agreement that has allowed for cooperative and equitable operation of the Cachuma Project for almost 20 years.”

The settlement agreement Scroggin is referring to resolved 50 years of dispute between South Coast cities and downstream water rights holders in 2002, according to the order approved by the water board in September. The water board responded to the Sun’s request for comment by saying that the documents, comments, and hearings included in the public record on the issue speak for themselves. 

Feds vs. the state

Operating under a permit from the state water board, the U.S. Bureau of Reclamation releases water from Lake Cachuma, either through the dam for downstream water rights holders or through tunnels on the other side of the lake for South Coast cities. 


CREATING HABITAT
California Council of Trout Unlimited is satisfied with the recent water board ruling that it hopes will give steelhead—such as this one caught, measured, and thrown back into Hilton Creek in 2008—a better chance at surviving and thriving in the Santa Ynez River.
FILE PHOTO COURTESY OF NOAA

“As a bureau matter, if we are storing or releasing water from reservoirs ... we have to apply for permits from the state,” according to Michael Jackson, the Mid-Pacific Region area manager for the Bureau of Reclamation. 

He said, in general, the bureau only complies with state law if it doesn’t conflict with federal law. The water board’s order to increase water releases for steelhead includes other requirements that the Bureau of Reclamation contended conflicts with federal law. Those include a couple of feasibility studies regarding potential fish passage above the dam and adequate water flows for steelhead. On Sept. 17, Jackson told the water board that the bureau can’t legally engage in a feasibility study without express authorization and a funding appropriation from Congress. 

“Federal law takes precedent unless, we, the government, has either unambiguously waived its sovereign immunity or put another law in place that would seem to override,” Jackson told New Times. “If, for instance, the state asked us to irrigate cannabis fields for habitat, we would say no because it conflicts with federal law.” 

In comment letters and at the board meeting, Jackson also pushed back against the water board’s desire to change the “purpose of use” of the Cachuma Project’s permits to include protection of downstream water rights and public trust resources. Jackson said that Congress authorized the Cachuma Project with a specific use in mind and that the water board doesn’t have the authority to change that.

“Despite recommendations by the Fish and Wildlife Service to include fish releases, Reclamation determined that such releases would be inconsistent with the water supply purpose of the project, and Congress ultimately authorized the project absent authorizing any purpose or requirements for fish and wildlife,” Jackson wrote in a comment letter on the order. “Changing the authorized purposes of use of water does not change the congressionally authorized purposes for the Cachuma Project facilities.”

The Reclamation Act of 1902 does require that Reclamation projects comply with state water law, including obtaining permits and abiding by the conditions imposed by state water agencies. The Supreme Court upheld the law in a 1978 decision (California v. United States). In the order’s footnotes, the water board states that the decision “confirmed that this statute requires Reclamation to follow state water rights law and that California may impose conditions on permits which it grants to the United States with respect to irrigation projects.”

Reclamation had 30 days from Sept. 17 to formally request that the water board reconsider its decision. As of Oct. 10, Jackson said they hadn’t necessarily made a decision yet, but they were evaluating the possibility. One of the things that Reclamation has to keep in mind is whether it will have the water supply to comply with water release requirements and satisfy its obligations to member units (all of the municipalities). The system is complicated, he said, and the drought made it even more so. 

“Where’s the line in water projects where state law ends and federal law picks up?” Jackson said. “Resolving these issues where the [bureau] is disagreeing with the state, how’s that going to play out? We’ll see.” 

Environmental win

In 1987, the California Sportfishing Protection Alliance filed a petition complaining about the Bradbury Dam’s impact on the state’s public trust resources, according to Brian Trautwein, an environmental analyst and watershed program director with the Environmental Defense Center.

“It takes a long time, unfortunately, for action,” Trautwein said. “A lot of times, these things are filed and on the books for a long time.” 


BIG ONE
Dan Smith’s daughter poses with a steelhead caught on the Santa Ynez River in the early 1940s.
FILE PHOTO COURTESY OF NOAA

Action on the petition took so long that the alliance is no longer active in the process. The Environmental Defense Center is active though, and has represented the nonprofit California Council of Trout Unlimited in the water board’s process since 2000. Maggie Hall, a staff attorney with the center, said the goal is just to get the bureau to operate the dam in a way that doesn’t endanger steelhead. The water board’s decision is one that their side of the issue is happy with—at least, for now.

“We consider it a major victory for steelhead,” Hall said. “For the entirety that it’s been operated, Bradbury Dam hasn’t been operated with the needs of steelhead in mind.” 

That is something that became crystal clear to the Environmental Defense Center during the drought, when the center sued the Bureau of Reclamation over the “take” (death) of steelhead protected under the Endangered Species Act. Pumps meant to keep water flowing in Hilton Creek, which is below the dam, weren’t working properly during the drought. The pumps shut down at least 13 times starting in 2013, according to Trautwein, who said that 360 endangered steelhead died because of it. 

“And it’s still not completely functional. They still have work to do to make sure that it functions properly,” he said.

As part of a settlement agreement in 2015, the bureau agreed to consult with the National Marine Fisheries Service on a new biological assessment for fish flows and allow California Trout Unlimited to comment on it. The service will use that assessment, which is ongoing, to craft a new biological opinion governing required flows for steelhead. The water board’s recent order relies on a biological opinion from 2000, but it allows for modification should the future opinion come to different conclusions about the water flows needed to maintain fish habitat. 

“At the end of the day, whatever stronger flow regime is of course going to be the one that’s in place to protect steelhead,” Hall said. 

The Environemental Defense Center and its clients aren’t just concerned about the fate of steelhead on the Santa Ynez River. On Oct. 9, the center filed a lawsuit against the Santa Maria Water Conservation District and the Bureau of Reclamation regarding the take of steelhead on the Santa Maria River due to Twitchell Reservoir. 

Hall said the studies have already been done to determine the timing and magnitude of flow needed to maintain steelhead habitat on the Santa Maria River, and it’s approximately 4 percent of what’s stored in the reservoir annually. It’s minimal, she said. And although the recent water board decision sets a good precedent, Hall said that they were planning on filing the lawsuit before the order was passed.

Trautwein added that the Santa Ynez and Santa Maria rivers had the largest and second largest runs of steelhead in Southern California before the dams were built. 

“The Southern California steelhead is considered one of the most endangered species in the United States, according to the National Marine Fisheries Service,” Trautwein said. “It’s a critical issue.” 

Reach Editor Camillia Lanham at clanham@santamariasun.com.




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