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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 Cody Phillips. Cody is the Staff Attorney with the California Coast Keeper Alliance. Hey, Cody, how you doing? And we're also joined by Craig Tucker, Klamath River Advocate and Principal at Suits and Signs. Hey, Craig.

CRAIG TUCKER:

Anytime. Thanks for having me.

WHEELER:

Oh, and we are also joined by vice chair, Kenneth Brink. Welcome to the show. Hey, welcome. I made it. Awesome.

KENNETH BRINK:

Okay, I don't have much time, but I'm here. Awesome. All right, yeah. My name is Kenneth Brink, no S on it. Just B-R-I-N-K. Yes, I'm vice chairman and I'm happy to be here.

WHEELER:

All right, and I understand that prior to being vice chair you also worked in fisheries.

BRINK:

Yes, I'm very new to Vice-Chairman, it's my first year. I previously did 22 years fisheries biology for the Kuruk tribe. So my whole career bringing the dams down. Yeah.

WHEELER:

Fantastic. And we, we are making progress right now as we speak. One of the dams on the Klamath is coming down. So thank you to the Karuk Tribe for all their efforts in making that possible. All right. So we're, we're going to be talking about two rivers near and dear to my heart, the Scott and Shasta rivers, some of the most important tributaries to the Klamath River, mighty Klamath and efforts that the Karuk tribe and California Coastkeeper Alliance, epic Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Research, just keep going with a list of groups.

Friends of the Shasta have made to try to protect the in-stream flows of these rivers and necessary legislation that we're advancing to better protect in-stream flows in these rivers. So, so Craig, I've said that Scott and Shasta are some of the most important tributaries to the Klamath river, but let's, let's go there. And, and talk about the roles of the Scott and Shasta rivers and what's currently plaguing them.

TUCKER:

Yeah, thanks. So we talk about the Scott and the Shasta often in the same breath. And some of that's just because they're adjacent to one another. The sub basins are right next to each other. They're both in Siskiyou County. They're really the two big tributaries to the Klamath below the Iron Gate Dam, which is currently, I'm happy to say, being deconstructed as we speak. But they're really different.

So the Shasta River is driven by cold spring water. These springs are derived from the glaciers atop Mount Shasta. That glacier melt seeps into the mountain and pops up in Shasta Valley as springs. The Shasta, although Coho Salmon and Chinook Salmon use both streams. The characteristics of the Shasta River are such that it's really a major Chinook Salmon producer, probably still the biggest producer of wild Chinook Salmon in the Klamath system.

The Scott River just next door is really different. It's really not driven by springs, but is driven by snow and rain. It's a big alluvial basin, meaning it's like a giant bathtub filled with gravel. And so there's a pretty close connection between surface water and groundwater. And just the gradient of the stream and the nature of that place makes it a really optimal place for Coho salmon.

And Coho is the ESA listed salmon in the Klamath Basin. It's part of what we call the SONC, or Southern Oregon, Northern California, Coho Evolutionarily Significant Unit. And a lot of biologists will contend that most of the Coho left on earth used the Scott River at some point in their life cycle. That's just how important it is. And those fish return to the Scott now. It varies from dozens of fish to a couple thousand fish. But it's far below what the National Marine Fisheries Service tells us is the recovery goal, which is 6,500 spawners, which we haven't seen on the Scott in decades.

WHEELER:

So despite their similarities or despite their differences, there are also similarities, right? In the things that are impacting them, agricultural operations in particular, and low flow regimes. Can you touch on those and some of the challenges that are befalling them?

TUCKER:

Well, both of these streams have really been impaired to grow beef, really. In the Shasta, there's a lot of irrigated pasture and cattle grazing. In the Scott, about 30,000 acres of irrigated agriculture that's almost exclusively alfalfa. There's a lot of reasons why the Scott Valley is a great place to grow alfalfa. It has to do with the climate. It has to do with the soil types. But mostly, it has to do with the fact that up until the Karuk tribe and PCFFA and the Environmental Law Foundation filed a petition, that they've been able to use as much groundwater as they want with no regulatory oversight from any agency. That's because the Scott is one of the few watersheds in the state of California that's adjudicated, meaning that they have assigned how much water who can use in the place. But when they did that, they really left groundwater out of those assignments. After they adjudicated the Scott, people just started digging groundwater wells beyond the zone of adjudication. They have literally sucked the river out from underneath the river channel in the Scott.

The Karuk tribe, working with PCFFA and the Environmental Law Foundation, petitioned the state of California after the drought emergency was declared by the governor. The drought emergency gave the water board certain authorities to take action. We filed a petition. The water board responded to our petition and established a minimal in-stream flow that had to be met. If it wasn't met, then people's water diversions, whether they be surface or groundwater, were curtailed. That made a big difference in stream flows in these drought years. But as we're leaving the drought, we're going to lose this protection, these minimal flows that are based on the drought declaration. Now we're looking for a permanent, long-term solution for both the Scott and the Shasta.

WHEELER:

All right. So we had minimum flow rules come in because the drought, as we are leaving a drought, we might almost absurdly have conditions become worse for these fish. Right. Because protections that were established because of this drought are now gone. How sad is that? So, so the state board has the power to create non-emergency minimum flow protections for salmon. Cody, your organization has worked to try to establish some of these minimum flow protections. Can you talk about the petition that you have filed? I believe that you filed one on behalf of the Shasta River and Craig and the Karuk Tribe and others filed one on behalf of the Scott river. Is that right?

CODY PHILLIPS:

Yes, the Karuk Tribe's petition that came first and the State Water Board tried to look at both watersheds together with it, but as Greg was saying, there are some key differences between the watersheds and we felt it necessary to submit a specific petition for the Shasta because of those differences.

So kind of going into why submit a petition, one of the fundamental things that we have in California and the United States generally is this idea that we can petition the government to act. And specifically in the California government code, there's a little section that says that you can petition any agency to create a regulation. And that's really what we're asking the State Water Board to do here is to take these regulations that they've created using their emergency authority and move it away from this temporary reactive emergency regulations for something much more durable, much more long-term and within their existing long-term regulatory authority. So it's just kind of a simple question that we put through this formal process that requires the State Water Board to respond, requires them to act. They have a specific amount of time to read the petition that we put together. It has all the science and data of what the fish need and what this flow is capable are in the watershed and what we requested that the regulation to look like.

WHEELER:

So we're talking about the Scott and Shasta rivers. Vice-chair, could you speak to what these rivers mean to the Karuk tribe and what they mean to the larger Klamath River system?

BRINK:

Yes, so studying the Scott and Shasta for 20-plus years, we know now that the Scott is the largest producer of wild coho on the Klamath River. And the Shasta is the largest producer of wild chinook on the Klamath. So those are two very keystone rivers to this system. So when they're producing the largest populations into the river, it's very important that we take care of these rivers because we just spent 30 years bringing these dams down.

And these two tributaries, the Shasta and the Scott, are the most important tributaries to the Klamath Dam removal there is. We know that the Scott and Shasta fish go clear down and rear in Yurok Territory and the estuaries down there. And Prairie Creek, these off-channel restoration projects they just finished. So to tie this restoration always from the top to the bottom, you're going to have to take care of these fish in the Scott and the Shasta.

WHEELER:

So you've submitted a petition to the State Water Board for the Shasta River and the Karuk Tribe has submitted one for the Scott River. As I understand it the State Water Board has had kind of a split position on these rulemaking petitions where they have accepted the rulemaking petition for the Scott River but they did not for the Shasta River. Can you explain to the best of your understanding because it doesn't make a lot of sense what the heck is going on here?

PHILLIPS:

Yeah, it doesn't make a lot of sense. I think that's the one thing that we can all agree on.

I think that the timeline and the narrative kind of helps clarify the weirdness of what's going on here. So the group tribe submitted their petition on the Scott River first, and the state water board accepted the petition. They didn't accept the petition, but they received it, and they held a hearing to go over what's going on here, what the issues were. And the petition, like you mentioned, was for permanent in-stream flow regulations. And the result that we got was another year of temporary emergency regulations on the Scott River.

So they didn't quite give the petitioners what they wanted, and they made a whole big deal about how important it was, but we just got another year, which is important, but of temporary emergency regulations. When we submitted our petition on the Shasta, they received it and then completely denied the petition. And they denied it for some weird reasons.

The first that they gave was that they legally couldn't accept the petition, which is just a really strange position to take. Basically, they're under this impression that when you submit a petition to the government, the government then has 30 days, if they want to accept it, to put forward a regulation. The government doesn't work that fast. If they only had 30 days to write a regulation, to vet it with a whole bunch of stakeholders, and then release it with all the economic analysis, it's impossible to do that. But the language of the government code says that if they accept a petition, they have 30 days to schedule a hearing. In their mind, 30 days to schedule a hearing meant they have to hold that hearing within 30 days, not that they have to schedule the hearing within 30 days for some other time. And they leaned pretty heavily on that weird interpretation of the government code, despite the fact that interpreting that way completely destroys the ability for anybody to petition the government for anything.

So we had this weird situation where they gave some relief for the Scott petition and then completely denied the Shasta petition, based in large part on this strange interpretation. They did give some other reasonings. As an example, they said that they're doing ongoing work in the Shasta watershed. Of course, my favorite quote that they gave in the denial was that they've been preparing to potentially act on the Shasta since 2014. I'm so happy that they're preparing to potentially act. It gives a lot of comfort for the fish who are dying every year.

WHEELER:

All right, so we're in a position where emergency flow rules are going to expire soon for the Scott and Chester Rivers. Maybe Vice Chair Brink can help us understand what this means when these emergency flow rules expire. What do we expect the conditions in the river to change to when these expire? Are we going to have enough water for salmon? What is the Creek Fixtures Department expecting in this kind of worst case scenario?

BRINK:

the worst case scenario is that we are totally inhabiting a certain species of fish that cannot get to the valley. So there's the Chinook salmon that spawn in the Scott and the Shasta, and on the Scott, and they cut the water off so much that it dries it all the way up where there's not even no fish access. And there's a breed of fish that actually are genetically prone to spawn in that valley. And if they don't get there, they're liable to be pre-spawn mortalities. So we're literally killing the species of fish, the Chinook. And we're not talking coho, we're talking the Chinook that's not listed, but it may be listed if they keep doing this. So it's very important that we keep this water flow for the spawning. And the farmers, they did a critterment last year and it worked.

And that fish made it to the spawning ground. There was people that were floating on a drift boat down the river that ain't floated in the drift boat, and they don't know how long. So the critterments actually work. And the numbers don't lie. And if we continue to keep drying up the spawning, we're going to lose the Chinook salmon too, and the coho.

WHEELER:

You are listening to the Econews Report, and we're talking about setting flow minimums for the Scott and Shasta rivers.

So Craig, you once said something to me that I thought was pretty profound and it had to do with the amount of water that once existed in this river and kind of setting expectations or setting water rights based on past high water level years and now we're in this new future. Can you talk about this difficulty, this profound difficulty of trying to give everyone enough water in a system where there's just not enough water for everyone to have?

TUCKER:

Yeah, I think the water rights system in California and really throughout the west of the United States, it anticipated issuing rights to water as observed in largely the 20th century. And it did not anticipate that weather patterns would change, or global warming would happen, or we would see these epic droughts. And so now that we're seeing these changes in weather and changes in precipitation patterns, the water is simply not available anymore, but there's no legal mechanism for adjusting people's water rights. And this is really creating the conflict on the Scott River, the Klamath River, the Colorado River, and really rivers all over the country. And so having to revisit that is part of what we have to do.

And I think that's why the Karuk tribe and our allies have gotten pretty creative about looking for these solutions. So petitioning pursuant to the California state constitution for a special rulemaking, that's unprecedented to use this as a strategy to set an in-stream flow in a stream. And if we're successful here, I think it could create a road map for how this can be done in other parts of the state. So we are excited about setting this example. But this is really that the water has been promised to too many people without taking into consideration that weather can change and hydrology can change, and that's where we're at today.

WHEELER:

All right, so the state water board is in theory working on minimum flow rules for the Scott River, but we are running into a problem that a lot of areas of state government are running into, which is there's just not enough money, there are not enough man-hours to get this done. Craig, can you talk about what the current kind of budget situation means and what that means ultimately for the coho and chinook salmon in the Scott River?

TUCKER:

Yeah, California State Water Board has a huge job. All over California, there are these conflicts over water use and fish struggling. And the Water Board is simply struggling to afford the manpower necessary to promulgate new rules and regulations. So one of the things that we're doing with a coalition called the Salmon and Steelhead Coalition that includes Coast Keepers and California Trout, Trout Unlimited, and many other groups, is we're actually working to get more money put into the budget for the State Water Board so they can hire the staff to promulgate the rules that we're asking for. And this year, California's budget is operating in a budget deficit. We expect the governor to issue a revised budget proposal in the month of May.

But one thing I will say for this governor is this issue is on his radar screen. When he came up to Humboldt County a few months ago to release his salmon strategy document, his blueprint for salmon recovery, it did include having flows established for the Scott and Shasta Rivers. So I think the work we've been doing, the petition, the press work we've been doing, has gotten the governor's attention. And so we're optimistic that he'll include the funding for this in the revised budget.

WHEELER:

So one of the challenges under the previous minimum flow rules was that sometimes the cost for violating the minimum flow wasn't a sufficient deterrent. And in the course of doing business, people would rather pay any fine or penalty should the state ever impose a fine or penalty for violating the order than give up that water. So, Cody, I understand that California Coast Keeper Alliance has been working with legislators to try to come up with new legislation that will help better enforce some of these issues around minimum flows. Can you talk about Assembly Bill 460 and what that would do to help strengthen the hand of the water board?

PHILLIPS:

Yeah, so first I'll say that we've been working with the sponsors of Assembly Bill 460, Trout Unlimited, Caltrout, and the Nature Conservancy, but we are not technically a sponsor of that bill. Still, we've been very heavily involved in it. So this is something that we've all seen as a necessary and almost a simple fix to a water rights system that really is pretty heavily delayed in when it was developed to where it needs to be now.

And the AB 460, Assembly Bill 460, what it does in a nutshell is it allows the state water board to increase the maximum fines they could levy when somebody violates their regulations that they put forward. And then also gives them a bit of a faster way of going about enforcing those increased fines. Right now, the fines are incredibly low. During the height of the emergency drought regulation implementation, the Shasta, a whole bunch of ranchers on the Shasta River very publicly decided to violate the emergency regulations. They took water out of the river, dropping it well below the emergency levels, and the emergency levels were not enough to actually keep the fish in good condition. It was enough to keep the fish in the river at that time alive. It wasn't a good amount of water. They did it very publicly. And at the end of the day, because the fine went to the association, the individuals paid about $50 a head for stealing all this water. It was kind of a mind boggling event that really showed how little teeth the state water board has in enforcing the regulations.

So AB 460 increases those fines. And then, like I said, the second component is it allows them to go and actually enforce them faster. Right now, they have to go through the courts to do it. It takes 20 days, and even that can be delayed if somebody asks for a hearing, and then they have to wait for the hearing to actually enforce. This just gives a much faster route to enforcement when there is an emergency along those lines.

WHEELER:

I remember when that happened. I remember seeing the news articles and I remember seeing video of the river. You could almost see in real time the effect when somebody would flip a switch and turn their water pump on what it would do to the Shasta river or brought it down to, to nearly nothing, a muddy puddle in places. It was shocking and it was, it was, yeah, I'll just say it was, it was shocking. I couldn't believe that the state lacked the authority to really take a more heavy-handed or not even a heavy hand to take any sort of appropriate enforcement action within a meaningful timeframe. So I think that we all believe that the state water board already has this inherent authority as well to set minimum flow regulations and to curtail water. From senior water rights holders during times of shortage, but apparently not all people think that this is true.

Can you tell me about Cody? Can you tell me about AB 1337 and what that would do?

PHILLIPS:

Yeah, so this is a bill that we are Coastkeeper lines is specifically sponsoring. And this water law is incredibly complicated. We don't have a system of water rights in California, we have a system of systems. And just kind of give a bit of context here that the key date and time that separates our systems is 1914. That's when California passed a law that came into effect that said if you want to take water out of the system, you need to get a permit. But if you had a water right before 1914, you don't need a permit. And these pre 1914 water right holders think that nothing can really touch their water. So this all came to a head once again in the drought, the drought highlighted a lot of weaknesses in the way that California regulates water, where the water board tried to tell some pre 1914 water right holders, hey, there's not enough water for you under your legal right. So you can't take water because you're taking water that doesn't belong to you. Seems like an obvious thing.

They sued the water board and successfully claimed that the water board had no authority to issue these other called containment orders curtailing the water right that they're trying to use. Unless the water board uses it's like I said, kind of weak temporary emergency authority. Now, it once again, a bit complicated, the water board can issue these curtailment orders under its constitutional waste and unreasonable use authority. It just hasn't really done that. And it's one of those things where that authority can be used to protect fish, but it can't really be used for everyday management of the water right system. And so to use this large constitutional authority in a way that doesn't really deal with the everyday it just seems like there's a mismatch where the board has to rely on a variety different buckets of authority to use instead of just having the ability to regulate the system that we have.

WHEELER:

All right. So by providing clear authority, we can better enable the State Water Board to take the sort of necessary actions that it needs to take, as opposed to, we believe that they already can do this, but they are pointing in a lot of different directions for their legal justification. If we have a muscle, but we don't exercise it, it often atrophies. And it seems like that's kind of what happens here, is that the State Water Board has this power, but doesn't choose to employ it, so that muscle has atrophied. Vice Chair, so the Governor has put forward his salmon strategy. It seems apparent that he is wanting to listen to the direction from Tribal Nations, from the Karuk Tribe, from the Yurok Tribe, and others, about how to restore salmon in California. Let's imagine that the Governor is listening to this podcast. What would you tell him about what's necessary to help bring back our salmon?

BRINK:

Yeah, well, you know, I have a message for the governor because he did this huge Prairie Creek project with the Yurok Center at the ocean. And those fish that rear in that project come from the Shasta and the Scott. That's where a lot of those fish end up down there. So for him to tie this project in from the beginning, from the top to the end, he needs to think about the Shasta and Scott and deal with those issues. You know, it's kind of crazy to think that nobody has to answer for killing coho when it's a threatened species, right?

So, you know, back in the day when the eagle was on the threatened species, if you saw one dead eagle, you would have like every fire truck in the nation there making this big old scene. So how is the coho different from the eagle? And I wonder where everybody has to protest. It's like, dude, these farmers are killing literally hundreds of thousands of coho, but they don't have to answer for it. Legally, if we killed one coho or did that, it's like, you could go to jail for it.

So I don't quite understand it where people are like getting away with this. How we're still living by 18th century water regulations is like, I think the governor should realize that we have to go through and rewrite the adjudication, realize, hey, there is global warming, there is climate change. And some people have taken a cut all their lives and some people have not taken a cut yet. And we all have to be equal here. And yes, we need farms, we need fish, we need water industries for recreation. And where do we find a happy medium for everybody?

WHEELER:

All right. Well, we're lucky because we here in the North Coast, we have the Senate majority leader in our district, Senator Mike McGuire. And I imagine that this is going to need some muscle to help get both of these assembly bills through. The Senate leader will need to champion these things when it comes to his side of the legislature. So if folks are interested in helping to secure better water right protection for the for the state, but in particular for the Scott and Chester Rivers, you can go to the podcast notes app and and there'll be a link there or you can go to the Lost Coast Outpost and you'll find a link to email Senator McGuire to show your support for both of these pieces of legislation. I'm really grateful to have been joined by Vice Chair Brink, by Craig Tucker and by Cody Phillips on this episode. Thank you so much, gentlemen, for for joining the show. Appreciate having you on.

TUCKER:

I'll talk to you very soon. Thanks. Thanks.

WHEELER:

All right join us again next week on this time and channel for more environmental news from the North Coast of California