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TOM WHEELER:

Welcome to the EcoNews Report. I'm your host this week, Tom Wheeler, Executive Director of EPIC, the Environmental Protection Information Center. And joining me is my water advocacy director here at EPIC, Amber Jamieson.

AMBER JAMIESON:

Thanks for having me on the show.

WHEELER:

All right, and we are joined by Michelle Fuller, who is a director at the Humboldt Bay Municipal Water District. Hey, Michelle.

MICHELLE FULLER:

Hi, thanks for having me.

WHEELER:

So we are talking about the Mad River today -- in particular, water rights in the Mad River and the work at the Humboldt Bay Municipal Water District to protect in-stream water rights It's a good thing We want to see that river nice and full and not being sucked away and diverted to parts elsewhere in our state.

So let's talk about, kind of, Water Rights 101. Because this is this is like a convoluted area of the law that I have like a tenuous grasp on, and like maybe together, all of us with our powers combined, we can make clear the California system of water rights. Michelle do you want to take an initial stab at describing how water rights are regulated in the state of California, and Amber and I can jump in if necessary to add friendly amendments to that definition?

FULLER:

No promises about making it clear for everyone, but I can certainly go first. In California, we have a first-in-time, first-in-right system where whoever filed their paperwork to claim a water right had a higher status as a senior water right holder than anyone who came after. and then there's also use it or lose it. With the first-in-time, first-in-right comes the acknowledgement, as we now look back, that there were extreme prejudice and racism at the time that only allowed certain people, mostly white men, to get those water rights. So things like water rights for tribes is not accurately and adequately factored into this system.

But we do have a system where who filed their paperwork first has a senior water right. You can file water rights for going forward. There's junior water right holders. And then as we evaluate water use over time, there's a use it or lose it system where your water right can be evaluated as not putting all of your right to beneficial use and scale back on the amount of water in your water right. So those are the main things that come into play with the Humboldt Bay Water District water right.

WHEELER:

Yeah, I, I like how you said kind of back in time when the system originated, we had a more constrained idea of water use and water rights and appropriate uses of, of our water. Back 1850s when California was being settled by Euro Americans, we, we were concerned about the application of water for things like irrigation or hydraulic mining or really extractive uses of water, but we weren't considering the ways that water is important to keep into streams and the use of water to support native fisheries or to support tribal uses. And now we have inherited this legal system which inadequately thinks about these things. And we're trying to use these pieces to then now go back and protect tribal nations and their water needs. Go back and try to protect salmonids and all of the various water users, native natural wildlife that, that they use our system. So we're using like this weird old tool that was developed from another time to, to try to do modern things. And sometimes it's a little bit clunky as, as a result.

FULLER:

Yeah, absolutely. But we are stuck with it right now.

WHEELER:

I failed to start the show by asking you about you. Michelle, tell us about yourself and also the Humboldt Bay Municipal Water District, of which you are a representative thereof.

FULLER:

Sure. I have been a director at the Humboldt Bay Municipal Water District, which we usually shorthand once we get going with just the district, because it is quite a mouthful. For the past seven years, I was appointed to Aldron Laird's seat when he retired, representing mostly Arcata. Our division boundaries are like a lot of division boundaries, jagged and weird in places, but I mostly represent Arcata. And we have five directors covering our service area. And the Humboldt Bay Water District is a wholesale water delivery district. So we are not dealing with very many individual customers. We primarily are selling water to municipalities for them to distribute to individual customers serving. I'm afraid if I try and list them all, I'll skip someone. But generally our service area is from Eureka up to McKinleyville and the various municipalities and community services districts that serve water through there.

WHEELER:

And your primary source of this water is the Mad River, as I understand it, is that right?

FULLER:

That is right. In the 1950s, the Water District was formed. The primary mechanism for the Water District forming was two pulp mills that wanted to set up shop out on the Samoa Peninsula and the really immense amount of water that they would need for that. So that catalyzed the formation of this Water District to serve those industrial uses. And we have an industrial system for that. And then it was an opportunity for some of the municipalities that had their own smaller systems that they were having to manage to be able to be a part of this wholesale system and get a really reliable water quantity and quality from the Mad River.

At the District, we're also trying to use the Wiyot name, Baduwa't, for the watershed in a lot of our outreach. And so the lower portion of the Mad River where all of our customers are and where the District's operations for diversion are, are on Wiyot ancestral territory. And the Wiyot people do not call it the Mad River, it is the Baduwa't watershed.

So we use both names mostly when we're doing outreach to the community. But the District's operations on the Mad River go back to the 1950s and 60s with the building of the dam, the industrial system, and then starting to serve the municipal customers. And the dam is 75 miles upstream. That's why I clarified that the downstream end is in Wiyot territory.

WHEELER:

So we have kind of two streams that are coming to, to users. We have the municipal water stream as, which I understand is mostly from, from wells adjacent to the Mad River. So hydrologically connected to the Mad River, but we're not pulling surface water. And then there's an industrial water capacity that is being unused, which had, as I understand it, mostly come from surface water diversions from the Mad River. And that was going to the pulp mills, which were using an extraordinary amount of Mad River water once upon a time. Is that, is, am I reciting this, this correctly?

FULLER:

At the downstream diversion facility at Essex, there's both of those are focused there. So there is a single surface water diversion pump and facility that is for the industrial system. It is raw surface water that was built to have the capacity to send, I think 65 million gallons a day of surface water out to the pulp mills. And then the municipal system is a series of the rainy wells. If you've been out to the Mad River there, you've probably seen these cement towers sticking out of the river and they're drawing water from 60 to 90 feet under the gravel beds of the Mad River to serve the municipal customers. And that's around 10 million gallons a day.

WHEELER:

All right. So now I think we've set up all the conceptual pieces to understand today's show. All right. So we have a system of prior appropriations or first in time, first in use, where you can establish a water right by putting that water to, to use like the pulp mills once did. We have the Humboldt Bay Municipal Water District being formed and having established water rights to service the pulp mills and the use of a lot, a lot, a lot of water coming out of Baduwa't, the Mad River, whatever we want to call it in today's show, going towards that use.

Now the pulp mills on the peninsula have shuttered. We are no longer using that. What happens then when a water use goes away? And this is the setup for what is the Humboldt Bay Municipal Water District having to consider now?

FULLER:

Yeah, and use as we're talking about right now is the legal term basically have what the state has deemed beneficial uses of water. And so there are categories of water use to be able to say that you're putting your water right to beneficial use and hopefully I'll get this part right, but the district filed a permit for their water right and there's a process in California, where then you go to license that right as an additional step. And that is that sets the amount of water that you're using at one point before it gets evaluated in the future.

And so the district permitted the water, but did not reach the licensing point when they were already facing a pulp mill closure. And so they asked for an extension of 20 years to try and put that water to beneficial use to be able to secure their water right as they permit that use, and that 20 years will be up in 2029, which at the time sounded so far away. And now we're coming up against it.

So the district has been actively pursuing water uses as the first pulp mill closed and then the second pulp mill closed in 2009, drastically reducing the demand that the water district was serving and the use of their water. Starting in 2009, with the closure of the second pulp mill, the district started a water resource planning process involving a broad swath of community members that committed to these facilitated couple of our meetings to discuss uses look into what's possible and try and reach consensus on what the community would like to do with that water, because the district is made up of a board of community members and we're responsible for the rates that people are paying and everything that happens at the district. And so looking for community input on what to do about this decline in water use, the water resource planning advisory group came up with three water use ideas for the district to pursue.

One of them was transporting water outside of our service area, but only to another municipal entity. So absolutely ruling out any privatization situation there, but that they would explore selling it to another municipality.

There was increasing local sales, what they have essentially been trying to do, looking for any new industrial customer to come out to the peninsula that would use a lot of water. Or other local uses of water that would be significant.

And then the third option was to dedicate a portion of their water right to in-stream flow. And so we have committees at the board level that are working on all three of those options and I've been serving on the in stream flow committee since I started And so we've been working through a process to dedicate a portion of the water right

JAMIESON:

That's great.

WHEELER:

You are listening to the Econews Report. We are talking about dedicating an in-stream flow right on the Mad River.

JAMIESON:

Could you give us a little bit of an overview of the 1707 process and where the district is in the process?

WHEELER:

And what, what 1707 is. Random number to me.

FULLER:

It is a section of the California Water Code that does describe the in-stream flow dedication process with the State Water Board. The State Water Board handles water rights and water quantity issues in the state, and so they are holding our license and looking to evaluate that. Under section 1707 of the Water Code there is a process to dedicate a portion of your water right either temporarily or permanently for in-stream flow benefit,s and so it must be for the benefit of fish and wildlife resources, it must be in the public interest, and it must not injure other water right holders. They're sort of the findings that they have to make.

The district is not an expert in this so we applied for a grant and received a almost $700,000 grant from the Wildlife Conservation Board in 2018 in order to learn everything we could about what it would take to do this and to get all the way to the point where we are actually filing the paperwork for the petition for change. So we worked with consultants to understand what questions needed to be answered, if studies needed to be done, what information we could pull from existing studies. We did outreach with the community and with other resource agencies and put that all together into there's like a two-page form little checklist and then an attachment about two inches thick, all the documentation that goes with it, and we are finally at the point where we filed that paperwork with the State Board.

We have been told that this is a lengthy process and we anticipate some back and forth with the State Board and potentially other resource agencies to finalize some of the details of the dedication, but the district voted, the Board of Directors voted, that it would be a permanent dedication and the quantity that we put in our application is 31 CFS on a monthly average. And I'm sorry to jump around between units -- we do it all the time -- but that was the way that it was filed in the paperwork. So it is just a small portion of the district's water right because of having the three committees pursuing three options at the same time -- that was the way that we were able to get the board to agree on how to move forward was to sort of divide it up so the in-stream flow committee had this 31 CFS to work with, and it also ties into how the district has been operating.

When the first pulp mill closed in the early 1990s the district cut back their releases from the dam accordingly, so without that demand downstream they no longer released 20 or 30 MGD that the pulp mill was using year-round, and when the second pulp mill closed in 2009 there was concern that reducing the releases again by that amount and to only serve the municipal customer amount would be harmful to the river, and there's concern that in the summer it would be too shallow, too hot and that it wouldn't be good for the 75 miles of aquatic habitat and all the fish that live there, so they operated as if the one pulp mill was still demanding water and having that diversion at the end.

So since the 1990s, when one pulp mill closed, we haven't changed operations, so in 2009 when the second pulp mill closed the district kept releasing that water and now is trying to get that dedicated to the river permanently, so that it's not just this weird little thing that we do, but instead it's codified into our water right.

JAMIESON:

So, releasing 31 CFS monthly, could you explain more of the Mad River system and how the plumbing works? Like, we have, I know that there's the dam up there and the water diversions closer to the mouth, but could you just further explain that and give us a more clear understanding of how the plumbing works?

FULLER:

The dam is a bit unique in its operation compared to other dams in the state. It is what we call a fill and spill reservoir. So when I say 31 CFS year round, we're actually only actively managing and releasing that during the low flow season. Once the water level goes below the spillway in the dam, then the district is controlling the flows. But in the winter and the high flow months, the district is not controlling it. It flows over the spillway and uncontrolled down the river.

So our control is only during those low flow months. And the way that the district releases water from the dam is through a small hydroelectric facility. There are two pumps that run there and it's a small hydro plant. They are, the way that they're adjusted is seasonally almost, I would say. It's small adjustments based on the flow and expected rain and situations like that. But there's no power peaking. There's no drastic daily changes to the flows based on anything to do with the hydro plant.

It's just, since we are releasing water from the dam, it's kind of getting that secondary benefit of generating some electricity, but it's not operated to maximize that. So that all happens in Trinity County up at Ruth Lake. And then the way the district was designed was to use the river as conveyance. So once the water's released, there's 75 miles that that water flows downstream before getting to the Essex facility in Arcata. And then the district again can take control of that water and divert it for municipal or industrial uses.

JAMIESON:

All right, so we have the Matthews Dam and Pounding Ruth Lake Reservoir. Since that's been put into place, it's caused existing flow regime to be different from pre-dam flows. Could you please explain how the natural flow regime differs from the existing flow regime?

FULLER:

Yes. And there's some local speculation about this. So we might hear back from folks on this, but we're going back into pre-1950s. And so none of us were here that are on this call. And we've been told, and we have evidence of extremely low flows in the summer is what comes up over and over again. So fish kills from low flows and the mouth of the Mad River for folks that have been out there. It's similar to a lot of the rivers and estuaries in California, where you'll see kind of a sand berm and barrier beach form. And with the district's releases, we don't get a lagoon situation.

And there is some anecdotal historical records that talk about that happening on the Mad before the district was in operation so that they might actually not flow all the way out but form a lagoon. And that would certainly affect fish migration and the summer steelhead in the Mad are really threatened. And they do surveys every year and the counts are always scarily low. So the district really feels strongly that those low flow releases are benefiting those species. But it has been hard to track down some of the more specific evidence from pre district operation about how the river flowed. But certainly, the Mad can experience some really low flows in the summer without augmentation.

WHEELER:

So I will build on that question a little bit. So when we're considering this in-stream flow dedication, we also have to be thinking about climate change. And we have this unique river system where we are able to control the releases and the amount of in-stream flow that exists. So how is the municipal water district thinking about climate change and future in-stream flows? And how does that relate to the 1707 process of establishing this in-stream water right?

FULLER:

It is actually a pretty large component of our reasoning. And so I appreciate the chance to get to talk about it. I will say also that the district has a three prong mission as far as what everything we do has to be grounded in. And we have our municipal system and keeping high water quality and reasonable water rates, industrial systems, similar. And then a third part of the mission was added prior to my joining the board. But recent history, which is to preserve the environment of the watershed because the district recognizes that we are relying on this water and can't have just a purely extricative relationship with it. And so the district has been a good steward of the watershed and has that at heart, which I really appreciate.

And in looking ahead, it can be scary with the water future in California and just no longer being able to. I feel like the term normal water year is sort of irrelevant now. How do we plan for this changing hydrologic future? So when thinking about our in-stream flow dedication, we are definitely thinking that having this, I think of it as a buffer of water in the river to help ameliorate some of these impacts. We're looking at higher air temperatures, which can lead definitely to higher water temperatures. We already have evidence of some harmful algal blooms in the Mad River. It's not as bad as we see in other watersheds.

So we're thinking that more water can help with all of these things. Well, we worked with consultants that did some water quality studies to look at this. And in such a big system, we do see an immediate impact downstream of the dam with cold water releases. And then things start to meet air temperature and even out. And because of our desire to work with what we're already doing, we don't have this clear baseline and change measurement. We want to codify what we're already doing. And so it's looking back to before the water district was there or what if we shut this off and only did municipal, but we don't really want to have to do that to prove that it would be beneficial. And so we are just working with our consultants and experts and thinking about how it could be beneficial. And we do think that resilience to climate change in this watershed is a part of the benefit that this would provide.

WHEELER:

So a lot of people love Baduwa't. Going swimming at the fish hatchery or fishing, it is a big part of Humboldt culture. Another big part of Humboldt culture is going up to Ruth Lake and boating and enjoying Ruth Lake behind the dam, up on the Mad. The dedication of an in-stream water right, would that cause any change to how Ruth Lake operates, the levels or anything? Would boaters up there be impacted in any fashion?

FULLER:

We definitely get this question frequently. We do host one joint board meeting up at Ruth Lake with the Ruth Lake Community Services District to make sure that we have a strong partnership there. Again, I hate to repeat myself, but because this is what the district is already operating at, they should see no change. And so Ruth Lake should still have the same recreational opportunities that folks are used to. And in the river downstream in the summer, we are looking at making sure that it stays the way that folks have been enjoying.

WHEELER:

Awesome. Tell us about the future process for this. When could we understand to have a decision on the dedication to how to get in contact with the water district and with you to let people communicate with their elected officials? So let's, let's start with decision time. When will we understand whether we have a dedicated in-stream flow?

FULLER:

I wish I knew. We have been told a range of dates that honestly could stretch out. We're looking at years, not months here. So we hope for some feedback from the state board in the smaller number of years, but we're looking at several years to get all the way through the process. We try to make sure to communicate more outwardly than we normally do when stuff is happening so that folks can be aware. The district is really transparent on our website about everything that's happening. We are working on building an FAQ section for this process because we've done a lot of engagement and want to make sure that we follow up with folks' questions.

Our meetings are the second Thursday of every month, except in May, we had to move it, but it's posted on our website. Our board packets are there. There's PowerPoints about the in-stream flow dedication, and if you want to know which specific packet, it might not be obvious, of course, reach out. All of our emails are listed on the website there. Our meetings are also hybrid, so you can come in person. That is certainly welcome, but acknowledge that that is hard for a lot of folks. We're on Zoom, and we love hearing from the community and having folks engage with what we're doing, so please check it out.

WHEELER:

And you can find links to the municipal water district so many districts I know you can find links on the Lost Coast Outpost, where we keep our show notes, or if listening to this as a podcast and your podcast and app can also find a link there. Michelle, thank you so much for joining the Econews Report and look forward to having you on in the future to celebrate when we finally get this dedicated. Thank you.

FULLER:

Thank you so much.

WHEELER:

Have a lovely day. Enjoy this beautiful weather. Thanks for being on the show. All right. Bye now. Bye. This has been another episode of the Econews Report. Join us again next week on this time and channel for more environmental news from the North Coast of California.