Is Sonoma County Stealing Mendo Water?
by Mark Scaramella, November 12, 2013
Supervisor John Pinches’ proposal for the Board of Supervisors to form an “ad-hoc committee” to look into Russian River water rights got off to a stumbling beginning last Tuesday when the titular sponsor of the idea — County Counsel Tom Parker — couldn’t find his own paperwork.
Parker opened the discussion by asking the board “to consider forming an ad hoc committee composed of two members of the board, directing that an ad hoc committee to work out certain items relating to water issues — and let me find the exact language —”
The County's lawyer began flipping through a thick binder, then he shifted to a different binder, flipping its pages.
Parker: “Excuse me. I'm sorry.”
Pinches (waving a piece of paper): “Is this what you're looking for, the recommended action?”
Pinches: “Do you want me to read it?”
Parker: “It has the scope. I'm looking.”
Parker: “I can't find the scope.”
Pinches: “The formation of an ad hoc committee composed of two members of the board, directing said ad hoc committee to define its own scope, composition and timeline related to information on Lake Mendocino water leases and downriver diversions of the Russian River water in Lake Mendocino, and Sonoma County, returning to the board with a report and recommendation on how to proceed in accordance with the ad hoc committee's timeline.”
Parker: “Yes. That's the summary of the request. It's important in the view of my office, important I think for the board to consider creating an ad hoc to get more information on this issue and allow the board to make as fully informed as possible any decisions they may choose to make.”
Pinches sat back, quietly fuming that his proposal he'd labored so long to assemble, had been fumbled by Parker.
Supervisor Carre Brown: “I don't think it's any surprise to any of you that I cannot support the formation of an ad hoc. I really feel it's a waste of time and resources for supervisors and staff of both counties. I believe the County of Mendocino really has no standing on these issues although they can discuss them. There are so many documents and actions since the very beginning and some of those that have been discussed are D-1610, what happened to D-1030. That was never brought up in any information I believe. Other documents should be brought up. Maybe some of our partners will do that today. Discussions need to be held and a complete reading of such documents — written response 7315, written response 7430, and written response 86-9 of the State Water Resources Control Board and that is very documented, a detailed document, to each of the points raised by the Russian River Flood Control and a petition was presented to the State Water Board for reconsideration of D-1610. The County of Mendocino, I really feel and this will be a repeat of what I have said before, money and time is better spent on other initiatives and I did list a number to all of you that are important to all of you. They protect Mendocino County interests but other entities really do have the standing. I could go over the list. I have eight of them listed. I will put that aside until further discussion. But I think a simple letter to the Sonoma County Water Agency board of directors by Supervisor Pinches asking the questions that he feels are unanswered is all that is needed at this time.
Lee Howard (Chairman of the Board of the Russian River Flood Control District): “There's probably been enough said and done on this to go a long ways. … If you have to form an ad hoc, go ahead. I think County Counsel has already done a mis-service already by not studying the issues. Decisions 1610 and D-1030, Decisions 7430, 86-9 and 7915 are all very relevant to this issue and probably answer a lot of questions. You don't need an ad hoc to do it.”
Howard said he recalled that in 2002 a committee to look into it was formed with a specialized attorney who concluded “there wasn't a lot you had to say on the issue to start with. Also there is a letter from Mr. Neary and Mr. Carter which I think are quite overstated in their takes on this thing. Mr. Neary’s letter said that the Flood Control District has not done a very good job and hasn't represented the County very well. The Flood Control District doesn't represent the County, we represent the Flood Control District area. Period. And if you look at the cost of water today that some of our customers have, it's probably some of the cheapest water in California. Plain and simple. There's been a lot of written responses. The Flood Control District has challenged a lot of the state stuff in the decisions that I just listed. I would hope that before you sit here and start a committee to tip at windmills that you study these issues pretty much completely and exhaust those before you start spending time and energy and money out there fighting something that isn't there to fight. All of us would like more money from somebody, there's no doubt about that. I just think that right now poking at Sonoma County isn't going to help that issue. Sonoma County has worked with us and is working with us on issues to try to get through some very difficult positions that we are at today.”
It’s obvious that Mr. Howard is happy with the current arrangements because his customers, his constituents, are getting cheap — if not totally free when they just pump it out of the River for grapes — water, however much it may be. Howard didn’t dispute the claim that Russian River Flood Control doesn’t represent Mendocino County, they only represent themselves. Which is exactly why Pinches raised the issue.
Redwood Valley Water District Manager Bill Koehler agreed with Mr. Howard. “Virtually every question that Mr. Neary and Mr. Carter raised are mirrored in those documents.”
Pinches: “I don't know what anybody would be afraid of. Lee, on one hand you said that you encourage us to go ahead and look into it. But on the other hand you say, Don't form an ad hoc committee. So I don't know exactly — looking into it means looking into it. It does not mean closing the binder and forgetting about it. As I pointed out to my colleagues in closed session there are a couple of inconsistencies, glaring inconsistencies, in Decision 1610 that I think need to be further analyzed and reviewed by this ad hoc committee. Once we get into the committee work then we can look at the whole issue. It's not going to go further unless it’s necessary. We are not hiring an attorney at this time. We are not spending any money. It will be the effort of two board members who want to volunteer themselves to do it and it will take some staff time. We spend a lot of staff time on just about everything else. My position is, what do we have to lose? I'm not out to poke a stick in the eye of Sonoma County or the Sonoma County Water Agency. That's not the intent. There are some issues that have never been addressed. I've heard ever since I got involved in politics, Well, we are going to review Decision 1610 and whatnot. But it never happens. You have three parties in Decision 1610 — the State Water Resources Control Board, Sonoma County and Mendocino County. Everybody knows that Sonoma County doesn't want to change anything because they like it just the way it is. Nothing is going to come from the State. So if it doesn't come from us— and I totally disagree Carre [Supervisor Brown] with your idea that Mendocino County has no standing. Here we are just the other day we spent $15,000 to join a Russian River Water Association group and now you're telling me we don't have any standing when it comes to water in the Russian River? I think that's totally wrong, frankly. What do we have to lose? Here we have a Lake out here that’s down to mud, and we have one in Sonoma County that has 45,000 mile square miles of Mendocino County watershed behind it and it is virtually almost full. What do we have to lose by forming an ad hoc committee to look into all these issues? I would like to think that all the water districts in Mendocino County and all the water purveyors and all the water recipients in Mendocino County would encourage this review. If at some point in time I'm convinced and everybody, or a judge or the people or the ad hoc committee, can say Pinches, you don't know what the hell you're talking about — then I guess at some point in time I will have to accept that. But I'm not willing to accept that at this time because I think there are issues that I brought out. I brought them out in closed session — there's issues dealing with 1610 that the County needs to remind Sonoma County Water Agency that they need to do. I just think it's time. Everybody realizes that the water situation here in Mendocino County is drastic. It's drastic! We have property owners out in the Redwood Valley area that have owned and paid taxes on property for decades and they can't get a water hook-up. Did you see the headlines in the Press Democrat yesterday in Sonoma County? They call it the Godzilla — the big casino that it has opened up in Rohnert Park. Do you know who supplies Rohnert Park with water? The Sonoma County Water Agency. It doesn't matter if the agreement is right or wrong, we are not being treated equitably in this process and it is time to review it. Decision 1610 was in 1985 or 86. It has never been reviewed. Frankly, water rights and water flows can be changed. They are meant to be changed. They are not cast in stone.”
Brown: “With all due respect to Supervisor Pinches, the Russian River Watershed Association, what we are paying for is a storm water ordinance countywide educational program on that. That is something –”
Pinches: “Yeah, but if we didn't have standing why would we even be involved in it?”
Brown, somewhat startled at Pinches response: “Just because the name is not the fact that they don't provide educational component that we are required to do. It's not just the Russian River.”
Pinches: “I make the motion to take the recommended action.”
Supervisor Dan Hamburg: “It's important if we are talking about forming an ad hoc that we know who the members of the ad hoc are going to be and I'm not clear on that.”
Pinches: “I'm certainly willing to serve on it.”
Hamburg: “Okay. Is there another board member willing to serve on an ad hoc?”
Supervisor Dan Gjerde: “I don't see what's the harm in creating the ad hoc.”
Hamburg: “So you are saying yes?”
Gjerde: “No. No. But I'm not the right person to do it.” (Laughs.)
Hamburg: “Well, you are a County Supervisor.”
Gjerde: “My district does not include the Russian River and I'm not familiar with the specific issues. I really think it needs to be someone who has more familiarity with the issues and represents the Russian River.”
Hamburg: “But if we don't have a second supervisor who meets those criteria, are you willing to serve on the ad hoc?”
Gjerde: “I don't think I would have much to contribute to it.”
Hamburg: “So you are saying no?”
Gjerde: “Yes, I'm saying no.”
Hamburg: “You're saying no. Is there another member of the Board who is willing to serve on the ad hoc committee? … I don't hear anyone who is willing to serve on the ad hoc. So I don't know how we form an ad hoc committee without two members. Personally, I'm fine with doing the ad hoc. I know it will take some staff time. I am sympathetic to the issues supervisor Pinches is raising. There are two issues he raised that seem particularly germane to me. But I don't know these issues the way, most certainly not the way Supervisor Brown does or probably as much as Supervisor Pinches even. But the issue of gaging Dry Creek and the fact that the staff member who did the research for Supervisor Pinches could not find information that Decision 1610 requires to be furnished to the public and that information was not available — now I could be wrong about that, but that's what I read in the staff report. And the second issue that Supervisor Pinches brought up to me that seemed pretty interesting was the issue of the watershed. The fact that so much of the watershed that creates Lake Sonoma is in Mendocino County. I didn't see anything that explained why Mendocino County doesn't have some rights to water that falls on the earth in Mendocino County and then drains down into Lake Sonoma. Lee [Howard] is out there smiling at me like I should know better but I don't. I'm enough of a babe in the woods on these issues that I think, yes, let's go find out some more information and I thought at the end, what can it hurt? But I feel like I have too much on my plate to really dive into this myself and I don't see any other supervisors willing to. I think it's clear that Supervisor Brown is not willing to do it. That kind of leaves supervisor McCowen.”
McCowen: “I think we all understand this and I've read a lot about it and we've all seen the material. I certainly share a lot of the concerns that Supervisor Pinches expresses about Mendocino not getting our fair share of Mendocino County water, stated in a nutshell. But it's also a situation that we did to ourselves by people 60 years ago not having the foresight to secure the water right to water that would be impounded. So I think a close reading of a number of these decisions does answer some of the questions that have been raised. Working to identify the remaining questions for which I think we are legitimately entitled to answers, putting that in a letter as suggested by Supervisor Brown would be a good preliminary first step. I also think there is currently a pretty critical process going on with the Flood Control District seeking to gain a license for the 8,000 acre feet of water that Mendocino County entities are entitled to out of Lake Mendocino. I know they've been involved in that process diligently for two or three years. I think there is some hope that there is some light at the end of the tunnel. Going and asking a bunch of questions and reopening a bunch of questions that have already been answered at this particular time probably is not helpful. On balance I think it's preferable to follow the course of action suggested by Supervisor Brown. That's what I would support.”
Pinches: “I would like to remind you, Supervisor, that the Sonoma County Water Agency is the official protester of the water rights application by the Russian River Flood Control District. So as far as working together, if they wanted to work together why are they an official protester and have been for several years now of that water right application? I think it's very inconsistent. If this Board doesn't want to move forward with an ad hoc committee, it's not going to deter me from what I am going to do. I will say that. And I will say that after this meeting at least I can say and go on record that I tried to make some equity in his whole situation, all the way back to water rights in the 60s or the 50s when Lake Mendocino was built to the mid-80s when Lake Sonoma came into the system. Situations and usage change, flows change and everything. All I'm trying to do is create a positive, more equitable effect for Mendocino County. I am determined in my efforts and just because I cannot get a partner on this Board to move forward with this, I am still going to proceed with this issue because I have the rest of my lifetime to work on it.”
Hamburg: “The motion fails for lack of a second.”
McCowen: “Being an upstream partner with Sonoma County Water Agency which controls the majority of the water has certainly been at best a very mixed blessing. They do regularly protest and then there is a list of issues that need to be worked through. I think the Flood Control District is currently pursuing that. But we should bear in mind that Sonoma County Water Agency has also taken actions that are very beneficial and you need go no further than Redwood Valley to identify that. So it's been a mixed blessing.”
Pinches: “Sounds to me like Sonoma County is drinking Mendocino County water, but Mendocino County is drinking Sonoma County's Kool-Aid.”
Sean White, General Manager of the Russian River Flood Control District: “Supervisor Pinches is right in that they did protest our application for an additional 6,000 acre feet. But so did about seven or eight other parties. Pretty much anybody that files for any sort of water right in this basin, you are going to get a standard laundry list of parties that protest everything. Locally, the city of Ukiah is also protesting that same application. And similarly Russian River Flood Control District has a long history of doing the same thing. It's not always adversarial but it can be a perfunctory step in ensuring that you have standing in future hearings. So even if you know you have a resolvable issue it makes you an official party to those negotiations. Many people do it just for standing.”
Brown: “Please explain the 6,000 acre-feet versus the 8,000.”
White: “Sometime ago our board anticipated the need for additional water so we applied for an additional 6,000 acre feet out of Lake Mendocino about 10 years ago. That was basically a filing on water that was sort of set aside initially for northern Sonoma County and was later reserved for the potential future needs in Mendocino County, so that is what they filed on. The Flood Control District now holds rights to 8,000 acre feet in Lake Mendocino. We are in the process of going to license on that. We are in the final phases of that now. We are hoping we have our license by New Year's Day. And we will be done.”
Brown: “What about the gage? Supervisor Pinches had a concern about a requirement in Decision 1610 that requires Sonoma County Water Agency to have gages to judge the amount of water coming at the confluence of Dry Creek. Can you give us any information on that?”
White: “This river has a lot of gages compared to other rivers. The Army Corps does operate a gage each on both the tributaries that the dams release water into. There's one on Dry Creek and there's one on the east fork as well. A lot of the gages in the system don't end up on more common, more frequently accessed websites. Most citizens such as myself when I go fishing will look at one called CDAC which is managed by the California Department of Water. That's probably the most popular gage site because the Water Department has done a good job of making it pretty easy to look at and it's searchable. The Army Corps outlet gages are not on CDAC and they are not on the USGS either. And the Army Corps of Engineers website is difficult to work with and navigate around. But the releases are there both daily and I think they do a 15 minute interval as well. Supervisor Pinches is right that people have been talking about reopening Decision 1610 forever. But that has happened. Sonoma County Water Agency filed a change petition to reopen 1610 about three years ago. That was one of the reasonable and prudent alternatives mandated in the deal. They had to reopen it. So that is in effect. The other thing they have to do is file a change petition every year—”
Mr. White is essentially arguing that Sonoma County’s legally mandated reviews are somehow relevant to Supervisor Pinches attempt to see if Mendo is treated equitably. Obviously, Sonoma County isn’t going to reopen allocations that they already benefit from.
Pinches: “You say they filed a reopening of it, but has it ever…? What's been done —”
Brown: “… a biological opinion.”
White: “Yes. You can't blame Sonoma County Water Agency for that. Basically many people protested that filing so the state board is dealing with all the protests that came out of that. But flows do change and that was really one of the main outcomes of the petition for change. Releases from Lake Mendocino will be forever lower as a result of those reductions. That's what they filed for in the petition and they have to file for them every year until that petition is improved. So through that review the releases from Lake Mendocino have already been reduced. There are some very positive changes for Lake Mendocino in the works that will be coming out of that process.”
Again, none of this addresses Pinches question: Is the current arrangement fair to Mendocino County?
Pinches: “How do you explain basically ignoring the County of Origin water protection of the 45 square miles of Mendocino County watershed behind Lake Sonoma?”
White: “I don't think I ignore it. The State Board did not ignore that either. If you read both D-1030 and D-1610 there is a long discussion about County of Origin and County of Origin rights.”
Pinches: “But weren't they really talking about the County of Origin rights behind Lake Mendocino?”
White: “No. D-1610 covers both projects. That's why D-1610 came out. That was because Lake Sonoma was coming online. And we did get a fairly significant caveat that is often overlooked — the water from Lake Mendocino which is generally classified as Post-1949 water, basically water that is a result of the infrastructure that was created then, even though we applied at the same time, there are many applications that were joint or filed as companions, Mendocino County was granted seniority and priority for all pre-49 rights so we actually did receive a significant benefit there because of County of Origin and that's why we were granted seniority. So at the end of the day our 8000 acre feet, even though we are a minor partner, has priority in Mendocino over Sonoma County.”
Pinches: “It takes priority but I don't see where we recognized the water from the Mendocino watershed behind Lake Sonoma.”
White: “Right. Because we didn't pay for the project and we didn't file on the rights. There was no way for us. And obviously I was popping wheelies on the Schwinn when that happened. [Laughs.] I was a little kid. But you can only blame our predecessors. We did not want to financially participate and it was basically up to this County two times in a row to pony up the cash to become a full partner and the County basically didn’t do it.”
Pinches: “That was Lake Mendocino. But in Sonoma County it was Corps of Engineers that built the project and they never have to pay back until the use of water down to that level.”
White: “That's not actually true. The Army Corps of Engineers owns both projects and every Corps of Engineers project has a local sponsor and here, only after, if you go back and read the historical documents that have to do with our license, really only after Sonoma County came back basically begging us, saying basically, ‘Man, you are going to regret this.’ [Laughs] did the County even come back and buy the small pro-rata share that we did eventually buy.”
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Summary: Supervisor Pinches, who has studied the subject at length, thinks Mendo’s being shortchanged, both for water and money, and there are specific aspects of the arrangement that need to be looked into to see if Mendo can do better.
The nearly dry lakebed of Lake Mendocino in August of 2013
Supervisor Brown, whose most prominent constituents benefit from the current muddled arrangement and don’t want anyone rifling through their paperwork, is against even looking into the question.
Supervisors Gjerde and Hamburg agree that there are some issues that deserve analysis from an independent Mendo-angle, but they themselves won’t do it.
And Supervisor McCowen thinks writing a letter to the Sonoma Water Agency asking them to deal with Mendo’s questions is all that’s necessary — which means no independent review.
Remember: It’s well documented that Sonoma County is selling huge amounts of valuable Mendo water to their own water districts and to Marin County which they — like the Russian River Flood Control District — obtain on the cheap.
Yet, despite of all this potential to not only explore whether Mendo has a right to more of Mendo’s water than at present, but also an opportunity to see if Mendo could at least get some of the revenue Sonoma County is generating with Mendo water — despite all that, four of the five people who are supposed to represent Mendocino County, and who are in charge of making sure Mendo’s precarious budget is balanced, have no interest in looking into substantial new water or water revenues, choosing instead to offer lame excuses for doing nothing.
These four Supervisors who don’t even want to look into the matter are the same people who laugh at the supervisors of yesteryear who shortsightedly gave away Mendo’s water and rights to Sonoma County — the only exception being my uncle, Joe Scaramella, who similarly failed to convince his colleagues back then to participate in the building of Coyote Dam.
The upshot? Existing inland Mendo water right holders want no change; Mendocino County will continue to provide free water to Sonoma County; Lake Mendocino will continue to dry up in the increasing number of dry years brought to us by climate change; Lake Sonoma will remain full year round.
Lake Sonoma, at its usual capacity, looking northwest to Mendocino County