October 7, 2009

Trinity County supervisors voted 5-0 last week to hire well-known California water attorney Michael Jackson of Quincy to file a protest on the county's behalf concerning Trinity River water rights hearings currently pending before the State Water Resources Control Board in Sacramento.

The Bureau of Reclamation has petitioned the State Water Board for an extension to the year 2030 on certain Central Valley Project water rights permits, including seven on the Trinity River, allowing more time to put the water allocated under the permits to what it calls "full beneficial use."

Originally granted to Reclamation in 1959, but never developed, the Trinity River permits in question promise allocations amounting to millions of acre-feet of water in addition to what is already diverted to the CVP for irrigation, municipal and industrial deliveries, fish and wildlife enhancement, water quality control and power generation. An acre-foot is enough water to cover an acre of land to a depth of 1 foot.

A notice of the petition for time extension on the permits was published Sept. 3 and with a deadline of Oct. 5 for the filing of any protests, the Trinity County Board of Supervisors met in a special session last week in order to take timely action.

In a closed session, board members voted to protest the requested extension of CVP water rights filed by Reclamation. They then agreed to retain attorney Michael Jackson to file the protest on the county's behalf.

Jackson is an environmental lawyer who has spent many years specializing in Northern California water rights, serving as legal counsel to the Regional Council of Rural Counties, the California Sportfishing Protection Alliance and numerous other government and environmental entities including the nonprofit advocacy group California Water Impact Network.

County Administrative Officer Dero Forslund estimated the county's legal fees to initiate the protest will amount to approximately $5,000. If there is further action required, additional compensation would have to be negotiated in a separate agreement.

Forslund said the Bureau of Reclamation has rights to a significant amount of Trinity River water in the CVP, some of which has not been used since the permits were originally applied for "and now they want to extend those permits 30 years. In our protest, we're saying 'no — if you haven't used the permits, they shouldn't be left sitting at the will of the Bureau of Reclamation.'"

"We are concerned about county of origin rights and we want a seat at the table," he added, noting a major problem with the permits issued in 1959 is that they bear no relation to the in-stream flows set forth years later in the Trinity River Fishery Restoration Record of Decision.

The permits in question are based on minimum in-stream flows amounting to just 120,500 acre feet of water a year, or 10 percent of the Trinity's water. The Trinity ROD, signed in 2000 by Interior Secretary Bruce Babbitt, increased the minimum in-stream flow to an average of 594,500 acre-feet of water a year which is approximately 48 percent of the river's water.

Forslund said Reclamation has not changed its sale and distribution of water relative to the ROD, "and we think they should — they are selling more water than they have."

Reclamation indicates it is in the public interest for the State Water Board to grant the requested extension of time it says is needed to put all the water appropriated under the permits to full beneficial use. The agency cites increasing municipal and industrial water demands within the CVP and the need for additional diversions of water to comply with possible environmental conditions that may be applied in the future under the Bay Delta Conservation Program and Federal Endangered Species Act.

Supervisor Judy Pflueger said the requested time extension on the permits provides Trinity County "with a rare opportunity to get involved in the water issue. I feel we've been uncompensated for our water going down the hill. We're looking for a seat at the table and perhaps compensation down the road."

Supervisor Roger Jaegel said he thinks the "beneficial uses" of Trinity River water within the boundaries of Trinity County "are extremely important and these extensions would extend those permits for water to be used outside of Trinity County." He added that if the county doesn't speak up now concerning the permit extensions, it won't likely get another opportunity to comment.

During a previous discussion about the water permits, Supervisor Howard Freeman suggested legal recourse, saying "many times the only way to a seat at that table is not by issuing a position, but by throwing a big monkey wrench in."

Trinity County's retired senior resource planner Tom Stokely commented later that the board's protest "gets the county's foot in the door so it will have official standing in future proceedings. It's also a great opportunity to demonstrate issues with the Trinity River that the state board needs to pay attention to and I've been harping about for years — the ROD's minimum flows and the minimum temperature objectives that have never been implemented through a water rights hearing. That all needs to be tidied up."

He added the state has appropriated 8.5 times more water through approved permits than actually exists in the state and with a three-year drought "and the rapid drawdown of Trinity Lake, it's apparent to anyone who sees it that the Trinity River is already more than fully appropriated."