(Catching steelhead trout on Deschutes River. Credit: By USEPA Environmental-Protection-Agency [Public domain], via Wikimedia Commons.)
In the United States, discussions about water rights often increase in intensity the further west one heads. California is home to many legal battles over water rights, because it is such an extreme example of the ways that competing interests and scarcity interact in the western states. Even planning for seismic events focuses on access to water as a primary issue in California.
California’s economy is now larger than that of the UK—the fifth largest in the world. This massive success has come with a huge population boom; the state was home to about 18 million people in the late 1960s but has surpassed 38 million in recent months. This, of course, creates a tremendous demand for drinking water, wastewater treatment, and recreational water resources.
California’s agricultural abundance includes more than 400 commodities. Over a third of the country’s vegetables and two-thirds of the country’s fruits and nuts are grown in California. In the 2016 crop year, California exported $20.04 billion in agricultural products, including its top earners: almonds, dairy and dairy products, pistachios, walnuts and wine. This agricultural industry is another major stakeholder when it comes to California water.
A less vocal and sometimes unrepresented stakeholder in this struggle: the environment and local wildlife under threat. The endangered steelhead trout, however, is not going unrepresented; a coalition of environmental activists, including the Sierra Club and the Santa Clara County Creeks Coalition have filed a Water Rights Complaint with the California State Water Resources Control Board to use their water licensing powers to require action by the Santa Clara Valley Water District to protect these fish. The changes, if they were implemented, would represent a change in water management on the part of the Santa Clara Valley Water District—one that environmentalists say is necessary to avoid the extinction of the steelhead in local rivers.
Richard McMurtry, a board member of the Santa Clara County Creeks Coalition (SCCCC), corresponded with EM about the issue and the complaint. The SCCCC and the Sierra Club jointly filed the Complaint of mismanagement with the State Water Board.
“The crux of the complaint is two-fold,” explains McMurtry. “First, the Water District is not taking timely action to remove the barrier to juvenile steelhead trout on their way to the sea created by a small dam on the Guadalupe River, called the Alamitos Drop Structure. Also, the Water District is not managing the flow of water in a way that sustains the fish during the summer and facilitates the adult steelhead movement upstream in the fall and the juvenile steelhead movement downstream in the spring.”
Flows are particularly important during times of drought. These are the times when the system itself is most tested, and the needs of the fish and the needs of people must be balanced to ensure the fish survive. There is a larger context to this complaint, however.
In 1996, the Guadalupe Coyote Resources Conservation District filed a complaint against the Water District alleging that the Water District was operating its water supply system in a way that harmed public trust resources, namely steelhead trout and chinook salmon. Seven years of collaborative problem solving amongst public and private stakeholders resulted in a 2003 proposed draft settlement agreement acceptable to all parties.
“The settlement agreement mandates that the Water District implement a comprehensive system of fish migration barrier removals, water releases and other fishery habitat improvements to restore the fish population to a healthy condition,” details McMurtry. “Now 15 years later, the Water District seems intent on dragging out the process of restoration as long as possible to avoid raising water rates to pay for the needed facility changes, and to avoid modifying the way they manage water releases to the creeks.”
For these reasons, the current complaint seeks immediate action by the State Water Board, asking that the Water District be forced to “cease and desist” from operating their water supply facilities in a manner that harms public trust resources, i.e., fish. And while the complaint asks for some similar concessions as the existing agreement, it also puts the entire process on a tight time schedule, i.e., one year.
Numbers of the endangered steelhead trout have been dwindling in Silicon Valley for some time now. The coalition of environmentalists is arguing that this is in part because the District has consistently failed to release enough water from dams into tributaries of the Guadalupe, which cuts through downtown San Jose. When they fail to release water in pulses during dry spells, portions of the river and its tributaries downstream dry up, killing fish.
“The focus became the Guadalupe River for two reasons,” McMurtry describes. “First, we wanted to prevent the Water District from driving the steelhead to extinction on the Guadalupe like they had done on Coyote Creek.”
A December 2017 report by Dr. Jerry Smith, a retired biologist from San Jose State University, provides extensive information about steelhead in Coyote Creek. The report reveals that there were no longer any steelhead trout in Coyote Creek in fall 2017; based on the flow conditions and unfavorable fish passage conditions during the previous five years, there were probably no steelhead in the ocean that knew the Coyote as their natal stream. This led Dr. Smith to conclude that the species had been “potentially extirpated,” or driven to local extinction, in Coyote Creek.
“This environmental catastrophe led us to want to make sure the same did not take place on the Guadalupe River which, like the Coyote was another stream capable of having its steelhead trout population brought back to sustainable levels,” remarks McMurtry.
The other half of the problem has to do with the Alamitos Drop Structure, a concrete barrier on the upper river that diverts water upstream to recharge underground aquifers.
“Secondly, there was a facility on the Guadalupe that had not been addressed by the 2003 settlement agreement negotiated in response to a previous Water Rights Complaint,” McMurtry explains. “To maximize the chance of the State Water Board hearing our complaint, we chose to file on this unaddressed facility to avoid the possibility that our complaint would be folded into the never-ending process of settling the older larger complaint.”
The Alamitos Drop Structure is problematic for several reasons. It acts as a thermal barrier, causing water in the dam-created seasonal pond to warm. This can dissuade juvenile steelhead from continuing their journey to the sea and exposes them to predation by faster swimming bass. The barrier also blocks gravel from traveling downstream where it would contribute to spawning habitat. Upstream it is part of the pond environment which lacks trees and vegetation—far inferior to the stream environment in terms of habitat best-suited for sustaining trout populations.
In the final analysis, the trout are an indicator of stream health.
“To sustain trout you need a living stream,” states McMurtry. “You need riparian vegetation that sustains birds and other mammals, gravel beds to create insect population, oxygen in the water that supports aquatic vegetation.”
In other words, the trout can only survive in a well-cared-for stream environment. Whether humans can see value added in such a healthy riparian environment is another question.
There’s no question why the District feels pressure. They are tasked with providing drinking water and flood control for all residents of Santa Clara County—almost 2 million people. However, they are not releasing enough water from the Almaden and Guadalupe reservoirs to keep the steelhead alive—and have yet to deal with the barrier. In other words, although the settlement agreement was made 15 years ago, there is still little progress on the issues.
“The District is not removing the barriers to fish migration at a reasonable pace,” remarks McMurtry. “It has been 15 years since the settlement agreement was initialed and most of the key barriers have not been removed or remediated. They are not managing their water during drought to protect the fish from drying out of the streams and not managing their water with the type of pulse flows needed to assure successful adult upstream migration and juvenile downstream migration.”
The 2003 agreement specified six steps that the District needed to take to protect salmon and steelhead trout in Coyote Creek, the Guadalupe River, and Stevens Creek. Phase I of the plan included: (1) fish migration barrier removals, (2) creation of 4-mile cold water steelhead summer rearing zones immediately downstream of several dams, (3) gravel augmentation to improve spawning, (4) management of flows to improve adult fall/winter upstream migration and juvenile spring downstream migration, (5) 2000 feet of restoration of natural creek channel on each stream, and (6) monitoring.
“The agreement also stipulated that if populations were not restored within the first decade, that additional measures would be implemented to increase the length of available stream miles such as trapping the steelhead and transporting them above the dams,” adds McMurtry. “The District has been working on an environmental review for Fisheries and Aquatic Habitat Conservation Effort (FAHCE) for several years and has yet to release a draft Environmental Impact Report (EIR)—the schedule keeps getting delayed.”
The District has also argued in media reports that it has been working hard to protect aquatic habitats, pointing to fish ladders and cleanup events as evidence of their commitment. But for environmental advocates, simply doing part of what you’re already obligated to do is hardly grounds for praise, and the extreme reticence on the part of the District is causing irreparable harm to these endangered species.
“Yes, the District spends millions of dollars doing good works, but they use what they do as a smokescreen to hide what they don’t do, which is to ask the question: ‘What do we need to do to preserve and restore the fishery on Santa Clara County streams?’” McMurtry points out. “Instead they feel satisfied having several projects on the books they can point to as evidence of ‘doing a good job.’ They ignore the science, which says that unless all the barriers to fish migration are removed on a stream, this fish can’t get to their spawning grounds. The District removed two of the four barriers to fish migration on Coyote Creek and expects applause for this. And when advocates point out that the fish still can’t get to their spawning grounds, the District glazes over and points to their list of accomplishments. This is the attitude that has resulted in the extinction of the trout on Coyote Creek.”
According to environmental advocates, the unwillingness to dole out more water “just” for the environment is really the problem here—and this is the major sticking point, both for resolving the old case and the newer complaints.
“The Water District likes to raise the specter that there will be less water for people if the fish get enough to survive,” explains McMurtry. “But during a drought, everyone needs to use less water—sometimes 10% less, sometimes 20%, sometimes even 30%. If people conserved 25% instead of 20%, the water supply would be sufficient for the steelhead to survive. We think there is enough of an environmental ethic in Santa Clara County to support water restrictions to preserve the fishery. But the Water District doesn’t want people to know about this issue. Their enormous public information campaigns are almost always successful.”
With 5 to 8 percent more water from the reservoirs, McMurtry says the fish would survive. Furthermore, some of that water would essentially pull double duty, since much of the water released into the stream eventually seeps into the ground and recharges the aquifers.
This seems in part to be a culture clash between scientists and advocates on one side and elected officials on the other. While the idea that there is a duty on the public and on elected officials to balance competing interests in water—including the interest of “the public” in defending nature and protecting species—old-school views have never perceived that as an equally-important interest when it’s time to strike a balance during times of scarcity.
“In general, the old-line staff managers still believe that their primary mission is water supply and flood control,” comments McMurtry. “They see their environmental responsibilities as just an obligation to be managed, rather than an essential service they provide their customers (and future generations). Their idea of ‘balance’ between water supply and instream environmental use is to minimize the amount of water devoted to fish despite the threat of extinction—any water given to fish is water taken away from people, even though the percentage of the water that is needed for the fish is modest—probably around 5 to 8%.”
In this kind of zero-sum game, managers are probably also afraid of setting precedent that could result in enforcement. For now, McMurtry and the team of advocates are hoping that the quicker timetable on the newer case will resolve the stalling issue. Fortunately, a workable solution—re-engineering the system to divert the water from higher upstream and fill the percolation pond area from Almaden Lake or another nearby source—has been on the table since 2004.
“That is the solution that we and others proposed in 2004 and again in 2016,” confirms McMurtry. “In 2004, Water District engineers said the solution was ‘a piece of cake.’ But the managers said they weren’t required to implement the solution so they weren’t going to incur the expense. Now the Water District says they will investigate the issue at a future date. But we have seen the results of foot-dragging on the Coyote and we cannot let that happen on the Guadalupe.”
Part of the urgency here is that inaction appears to have killed all of the trout in Coyote Creek. And while it’s reasonable for the District to investigate and consider alternatives, it is disingenuous at best to have delay and the resulting death of the wildlife in question be the “solution” that ends the debate.
“Steelhead trout are a majestic species that has crossed the ocean to spawn in local streams and then returned to the ocean for hundreds of thousands of years,” remarks McMurtry. “Though they have been driven to near extinction on Santa Clara County streams, their habitat needs can be restored by human engineering based on understanding their life cycle needs for water, food, shelter and movement. The agreement reached in 2003 would do that. We need advocates and scientists to create the political pressure to get the agreement implemented.”
Despite all of the difficulties, McMurtry believes this problem can be solved.
“Felicia Marcus, chair of the State Water Resources Control Board, once said, ‘We seem not to be focused on eco-system management but are focused on ego-system management,’” recalls McMurtry. “What she meant was that the controversial problems that seem so intractable are made so not so much by the scientific, engineering, or cost challenges, but rather are made intractable because key stakeholders dig in their heels on positions that have nothing to do with the science, or the engineering solutions, or even the essential interests of the stakeholders themselves.”
Top image: Catching steelhead trout on Deschutes River. (Credit: By USEPA Environmental-Protection-Agency [Public domain], via Wikimedia Commons)
After publication of this article, Marty Grimes of the Water District got in touch with EM to provide information from Lisa Porcella, The District’s Manager of Environmental Mitigation and Monitoring.
Regarding the Alamitos Drop Structure: “The District was aware of the passage impediment and added a fish ladder to the Alamitos drop structure in 1999,” explains Porcella. “Both upmigrant and outmigrant steelhead can utilize this fishway, as it is functional in all seasons.”
McMurtry responds that while this is true, his statement was that the Water District is not taking timely action to remove the thermal and predation barrier to juvenile steelhead trout created by the Alamitos Drop Structure—which the fish ladder does not address.
Similarly, Porcella comments, “The Alamitos drop structure is mentioned specifically as a priority barrier in the settlement agreement. As mentioned previously, a fishway was installed in 1999 to enable fish passage past this facility. Also, SCVWD is working on a creek/lake separation project at Almaden Lake just upstream of this facility in an effort to reduce instream water temperatures for fisheries, reduce predation by warm water fish, and reduce overall mercury methylation in the Guadalupe system.”
According to McMurtry and the other environmental advocates, this has not been sufficient.
“Yes, Alamitos drop structure was mentioned in the 2003 settlement agreement as a facility that had already been remediated by the fish ladder installed in 1999,” remarks McMurtry. “But that ladder did not address the elevated temperatures and the associated predation on steelhead smolts in the backwater to the drop structure. The Lake Almaden creek/lake separation project will indeed separate the lake from the creek thereby reducing the temperature inputs to the creek from the lake, but it will leave 2900 feet of the 3500 feet of channel in this reach as a substantially unshaded backwater to the drop structure—thereby failing to address the temperature problems that the Creek-Lake separation was originally intended to address.”
Porcella states, “Adult steelhead migrate upstream in the winter, NOT fall, when there is typically plenty of water for migration. SCVWD coordinates with CDFW and NMFS regularly during drought conditions to try and find the right balance for people and fish.”
However, McMurtry emphasizes that the fish migrate in fall and winter both, and that in any case, there is not sufficient water to support their migration, as the evidence from the report appears to support.
Next, The District addresses the pace and number of the barriers removed.
“The District has removed 10 out of 18 priority barriers listed in the settlement agreement,” states Porcella. “Of the eight barriers remaining, only two are District-owned facilities, the remaining six are owned by other public or private parties.”
Furthermore, as to the removal of only two of the four barriers to fish migration on Coyote Creek, Porcella adds, “The remaining two barriers on Coyote creek are owned by the City of San Jose and the Santa Clara County.”
“The measure of success is the number of streams on which fish passage has been restored, not the number of barriers removed,” counters McMurtry. “Nothing prevents the Water District from working collaboratively and aggressively with the City and County and the fishery agencies to secure the removal of the barriers owned by the City and the County. The District has initiated studies at both these facilities, but proceeds at a glacial pace, because there is no regulatory driver requiring timely action by the District.”