ContentsPutah and Cache: Lake Solano

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The Accord from Putah Creek News, Fall 2000

Historic accord settles lawsuit, sets permanent creek flows to satisfaction of all parties; now future of creek looks bright

Joe Krovoza
Chair, Putah Creek Council

On May 23, 2000, Putah Creek Council, City of Davis and UC Davis officially resolved the lawsuit against Solano County Water Agency, Solano Irrigation District, and other Solano entities. The suit sought permanent environmental flows for the 23 miles of Putah Creek below Putah Diversion Dam.

On May 24, all parties to the new accord gathered at the diversion dam to celebrate a new era for Putah Creek. For the Solano agencies, the new era brings water security, mutual reductions during extended droughts, a clear management strategy for riparian diversions, and some operational flexibility. For the environment, there are new flows for resident fish and ocean-run salmon and steelhead, substantial restoration funds, a permanent streamkeeper and the new Lower Putah Creek Coordinating Committee.

A quick review

"An environmental tragedy is unfolding on the outskirts of Davis. Because of bureaucratic confusion about water rights and inadequate water releases below Lake Solano dam into the natural stream, the lower six miles of Putah Creek have been dry for over two weeks. Countless fish and aquatic life have been lost, cottonwood and willow trees are beginning to die out, and numerous species of wildlife have abandoned the riparian and wetland habitat they rely on for survival . . . Beaver dams and lodges sit exposed in the sweltering heat and thousands of dried carcasses of fish, tadpoles and crustaceans are imbedded in the drying mud of the creek's disappearing potholes."

The passage above jolted readers of the July/August 1989 issue of Putah Creek News just as much as the events had disturbed the Camp Putah day-camper kids who were watching the creek go dry at the UC Davis Riparian Reserve.

For the Putah Creek Council and its many partners, an 11-year odyssey began in which Winters and Davis residents—and supporters everywhere—worked hard to secure adequate flows for the creek.

In the summer of 1989, the state was settling into its seven-year drought and the creek went dry. The drought was not the only problem. The state never required flows to protect the creek's environment following completion of the Solano Project in 1957. Worse, the releases that were required to supply landowners included a "dry year" release schedule that permitted reduced flows when inflow to Lake Berryessa fell below 150,000 acre-feet (af) per year.

In early 1990, the Council and others sought to purchase water from the US Bureau of Reclamation (Bureau) to avoid a repeat of the summer of 1989. On Aug. 15, 1990, the Council chose direct legal action and obtained an injunction securing temporary relief for the creek. The Council then filed a more formal suit in early 1991.

In 1993 a coalition was formed between the Council, UC Davis, and the City of Davis. The cornerstone of this alliance involved the university and city joining the Council's 1991 suit for greater instream flows

By early 1996 our day in court had arrived and we pursued our case for five weeks before Judge Richard Park of the Sacramento Superior Court. The judge ordered 50 percent more water for the creek. This was not all that the Council sought. The judge did not find the case for salmon and steelhead strong enough and perhaps he was concerned that the "water cost" to the Solano agencies to release water for these fish might be too high. Still, the Solano agencies appealed, halting implementation of new flows and, in time, starting new negotiations.

Accord contains six main elements from fish to water rights

In 1999 true movement toward settlement began and approximately a year later the accord was in place. Provisions to make the settlement "global" were added—global meaning provisions to prevent future legal wrangling, ensure restoration and set a process regarding landowner water rights.

The accord is a wonderful resolution. It is fully supported by the best studies of what the creek's environment requires. The main elements are:

1. Resident Native Fish Flows. The flows for resident native fish include important spring spawning and rearing components and guarantee a continuous flow to the Yolo Bypass.

2. Anadromous Fish Flows. Flows for ocean-run steelhead and salmon were not granted by Judge Park's 1996 ruling. As the post-trial evidence mounted that these wondrous fish do return to Putah Creek, the Council redoubled its effort for them. We developed flows that will attract and support salmon and steelhead in the creek, and these were incorporated into the accord.

3. Schedule for Extended Droughts. The settlement adds a drought schedule that could take effect in up to 25 percent of water years. This is good for Solano, and good for the creek. It is fair to share in cutbacks when they must occur. From the Council's perspective, it is better to have a schedule set now than to find ourselves in court later arguing about drought reductions. Our experts worked with Solano to set a schedule that will protect the native fish and stress the system in ways similar to what may have occurred pre-development.

4. New Forum for Management. The settlement creates the Lower Putah Creek Coordinating Committee, composed of five Yolo County and five Solano County representatives. The Council, City of Davis and UC Davis are the permanent core members for the Yolo side. The Coordinating Committee will oversee implementation of the settlement, hire a permanent streamkeeper, and coordinate creek studies and restoration.

5. Restoration and Monitoring Funds. The settlement provides a onetime $250,000 grant for preservation and enhancement of the natural values of Putah Creek, and $160,000 per year indexed for inflation for fish and wildlife monitoring and the streamkeeper program.

6. Landowner Water Rights. The settlement will change Solano's relations with downstream creek-side landowners who hold water rights. Before the 1996 court ruling, Solano was only required to make releases from the diversion dam. Any need on the part of Solano to accommodate downstream landowners more or less ended at that point. However, the establishment of downstream flow compliance points (at I-80 and the Bypass) to protect the creek's environment will mean there is more water year-round for creek-side landowners to pump, and thus the legal limits of their diversions will be more closely monitored. Intricate measures were adopted to ensure that if Solano-landowner disputes do occur, and steps are taken to resolve the disputes, Solano water costs caused by landowner pumping will be capped.

Why were we successful?

The Law. State laws concerning instream flows strongly suggested that higher flows were needed for Putah Creek's water-dependent resources: native fish, recreation, research, etc. The Public Trust Doctrine imposes an affirmative duty on the state to protect the environment associated with its waterways and tidelands. Section 5937 of the state's Fish & Game Code requires dam operators to maintain fish below dams in good condition.

These two laws were the cornerstones of our case, and because no environmental flows had ever been set for Putah Creek, we weren't arguing for reconsideration, we were saying: Do what was never done, what should have been done 40 years ago. This was persuasive in court and informally to individuals and public agency staff.

The Coalition. The community coalition was broad and formidable. While the Council started the instream flow suit, UC Davis and the City of Davis were invaluable partners. Without them, Putah Creek would not have permanent flows.

Our principles. The Putah Creek Council was guided by an elegant rule: base all positions on the best available evidence. We never sought to exaggerate our case. If anything, we were constantly conservative to protect our credibility and maintain the strength of our coalition. Our hydrologic models of the creek were never seriously challenged. Neither was fish data. The debate focused on interpretation of information and the appropriate level of protection. We knew it was better to recognize water costs and advocate for the needs of the creek rather than delay progress with factual arguments.

Our supporters. What a wonderful group it is that watches over the creek. Meeting after meeting, regardless of the immediate prospects for success, volunteers wanted to help. Ever-present were friends who consulted on an issue, landowners who added a perspective, or old-timers who would generously share information on the creek's former state.

Hammering out the settlement. Final resolution came from negotiations, outside the adversarial constraints of a courtroom. This was ideal. It allowed for detailed provisions that made the settlement work. But the setting for the final round of negotiations was unique.

Changing values. Protecting the creek was also influenced by new recognition that water projects must provide greater consideration to the environment. In 1992 the Central Valley Project Improvement Act nudged the Bureau of Reclamation in this direction. In 1994 the Los Angeles Department of water and power agreed to accept protections for Mono Lake.

And in 1995 the ambitious federal-state CALFED program began its work to heal the Bay-Delta and its tributaries from the effects of water project. These events all made it clear that environmental protections for the creek could not be avoided.

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