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Needed: A Flow Management Standard For the Lower American River

By Felix E. Smith 
July 4, 2009 -- The temperature (water quality), duration and timing of flows released from reservoirs to maintain fish and other aquatic life “in good condition” is the purpose of Fish and Game Code Section 5937.  Questions about the instream flow and temperature needs of Steelhead listed as threatened under the Federal Endangered Species Act  (FESA) and Chinook salmon are frequently phrased as “What is an acceptable risk for public trust resources and the aquatic ecosystem to suffer so the Bureau of Reclamation (Bureau) can export water?”  This question should not be part of the equation.  The question should and must be refocused to: “How can the stress, harm and mortality to Chinook salmon and Steelhead from elevated water temperature and fluctuating flows in the American River best be prevented or minimized?    
 
The Bureau has operated Folsom / Nimbus Dams and Reservoirs on the American River, tributary to the Sacramento River and the Delta since 1955.  The water allocation / water rights associated with the operation of these facilities do not have hard flow and temperature standards to protect the Chinook salmon and Steelhead in the American River. 
 
The Sacramento Area Water Forum has formulated a Flow Management Standard (FMS) for the American River.  This was done after much discussion with US Fish and Wildlife Service, National Marine Fisheries Service (NMFS), California Department of Fish and Game, and US Bureau of Reclamation representatives and consultants.  The FMS was heavily swayed by the Bureau’s Folsom operation and water available to meet contract needs south of the Delta.  The Bureau remains the ultimate decision maker.  Meeting public trust needs did not play a major part in the give and take negotiations.  Meeting the Bureau’s water contracts south of the Delta did. 
 
The FMS flows would greatly improve conditions of the American River over pre–Central Valley Project Improvement Act - 1992 operating conditions.  Temperature criteria are soft targets, not hard criteria.  In the NMFS – OCAP Biological Opinion (BO) dated June 4, 2009, meeting the temperature criteria are requirements.  With the BO temperature requirements incorporated in the FMS, the FMS should come very close to fully protecting Steelhead and Chinook salmon of the lower American River except in unusual water years.  Project and operational modifications should enable the Bureau to meet the temperature criteria as requirements, thereby meeting the needs of Steelhead during summer and early fall months and the needs of adult Chinook salmon holding during early fall months.   This should keep these fish “in good condition” and meeting the intent of Fish and Game Code Section 5937 in all but an unusual water year.  
 
Meeting temperature criteria for salmonid fish life history needs is critical to protecting such resources, associated uses and ecological values.   To protect Chinook salmon and steelhead utilizing the American River, a water temperature criteria of less than 65 Degrees F along with adequate flows (2,000 to 2,500 cfs) will provide “good conditions” for Chinook salmon and Steelhead during the over summer months.  Such temperature criteria are frequently exceeded for many days to several weeks a year with temperature approaching and exceeding 70 Degrees F.  Folsom Reservoir’s cold water pool is reduced during the summer months by the large releases (4,000 to 5,000 cfs in 2007 and 2009) made mostly to provide water to Bureau contractors on the west side San Joaquin Valley, including the San Luis Unit.  Such releases deplete the cool water pool, which then results in temperature conditions frequently exceeding 65 Degrees F in the River during August, September, October, and in some year into late November and early December.

Fall-run Chinook salmon return to the stream where they were hatched.  Adults enter the American River in late summer and fall.  Every effort must be undertaken to assure that instream conditions (less then 65 Degrees F) are provided to keep the holding adults with their maturing eggs in good conditions.  Flows for spawning should be about 2,000 to 2,500 cfs with temperature less then 60 Degrees F, preferably less then 58 Degrees F, for spawning and the eggs incubation.  While Chinook salmon live for only 2 to 5 years, the American River the run is composed of mostly 3 year olds. Adults spawn about 2,500 to 4,500 eggs and then die.  In the American River the run is composed of mostly 3 year olds.  In 2007 less than 2 percent of the spawning run were 2 year olds.

 
Water temperature in the 65 to 68 Degrees F frequently occurs in October.  Such water temperature can delay migration, impact the health of adults, impact egg viability and contribute to female pre-spawning mortality as these fish are forced to hold 2 to 6 weeks in such water, until water temperature drops to 58 to 60 DF, triggers Chinook salmon spawning.  Higher than normal egg retention and pre-spawning mortality continues to be a concern as this may impact on future generations.  Water temperature in high 60’s, above 65 to 68 DF, supports several diseases, parasites and fungi typically common in such an environment.  Incidence of disease and mortality rate of Chinook salmon is enhanced by stress factors such as low stream flow, extended periods of unfavorable water temperature, crowding, and injury (Healey 2001 - 2006).

 
What tools are available to affect the needed changes to the operations of the Folsom / Nimbus Dams and Reservoirs?
 
Under the public trust doctrine and with Steelhead listed as threatened under the FESA, every effort / opportunity should be undertaken to provide for the needs of Chinook salmon and Steelhead of the American River.   This is especially so for species only spawn once and then die.  In the freshwater environment, it is unreasonable to expect Chinook salmon and Steelhead to sustain their populations in good condition when water quality (temperatures) exceed that needed to maintain the individuals and the population in good condition for holding, spawning, egg incubation, rearing and out migration.    Under the public trust doctrine, agencies responsible for dam and reservoir operations and water quality must do everything necessary to make sure that Chinook salmon and Steelhead are provided with environmental conditions necessary for these fish to spawn, rear and survive their downstream migration to and thru the Delta to San Francisco Bay to the Pacific Ocean.

 
The public trust in fish, wildlife and aquatic ecosystems, the doctrine of nuisance, the unreasonable use doctrine, and the California State Constitution, Article X, Section 2, provide mechanisms for the State Board to protest ecosystems, as does the Porter- Cologne Water Quality Control Act (Water Code Section 13000 et seq.)   The State Board has the obligation to exercise continuing authority and supervision over the use of water, and has the responsibility to reconsider past allocation decisions in light of current resources and ecosystem needs.

  
The State, as the trustee, has the power to do everything necessary for the proper and enlighten management of the Chinook salmon and Steelhead of the American River.   The State Board is not confined by past allocation decisions which may be incorrect in light of current knowledge or is inconsistent with current needs. See City of Long Beach v. Mansell (476 Pac. 2d 423 –1970), Marks v. Whitney (6 Cal 3d 251), People v. California Fish 166 Cal 576- 1913, and National Audubon Society v. Superior Court –1983. 33 Cal 3d 419.)
 
With the NMFS OCAP Biological Opinion of June 4, 2009 in hand, it is time for the Bureau to model and operate the Folsom / Nimbus Dams and associated facilities in a manner that meets the Water Forum’s FMS with its continuous flow and temperature components to conserve and protect the Chinook salmon and Steelhead resources, uses and values of the American River.  The Bureau’s staff has refused to entertain such an operation or modeling activity. 
 
The question then must be: -- Does the Bureau really have all the operational tools, associated facilities and skills necessary for managing the Folsom / Nimbus facilities to provide instream flow and temperature needed to assure the sustainability of Chinook salmon and steelhead resources of the American River?”   If the answer is No!   What does the Bureau need?  The Bureau should step up to the plate and indicate what means and measures it needs to better operate Folsom / Nimbus Dams and Reservoirs to meet the ecological and biological needs of Chinook salmon and Steelhead of the American River.   
 
The Bureau manages the Folsom / Nimbus facilities to deliver Central Valley Project water to the Delta.  From here it is pumped and transported by canal for delivery to the west side of the San Joaquin Valley to meet contractual needs.  As a result, the Bureau is managing the Chinook salmon and steelhead of the American River with water left over from this operation.  Therefore the present and future of Chinook salmon and Steelhead of the lower American River are at the mercy of the Bureau’s operation of Folsom / Nimbus Dams and Reservoirs.

    
In a release from Judge Wanger (U.S. District Court) on April 16, 2008, he discussed temperature control at Shasta Dam and Reservoir.  The Judge allowed little leeway for the Bureau of Reclamation to meet temperature criteria.  According to the Judge Wanger decision, Reclamation “shall manage” the coldwater pool supply within Shasta Reservoir and make coldwater releases from Shasta Reservoir to provide suitable habitat for Chinook salmon and Steelhead in the Sacramento River between Keswick Dam and the Bend Bridge.  This was based on his reading of the Temperature Criteria in the National Marine Fisheries Service’s Biological Opinion.  
 
The Racanelli decision states, “The State Board should set water quality standards to protect all beneficial uses.”   Therefore the State Board should set temperature criteria for the water released to the American River from the Folsom / Nimbus Dams and Reservoirs.  Following Judge Wanger’s language for Shasta Reservoir, the State Board language could read, “Reclamation shall manage the coldwater pool within Folsom Reservoir and make coldwater releases from it to provide suitable habitat for Chinook salmon and Steelhead in the American River between Nimbus Dam and the Watt Ave Bridge.”  Criteria being 65 F Degrees or less June 1 thru October 31, and 58 F Degrees or less November 1 thru May 31.  Point of compliance could be adjusted upstream (to Arden Bar or Ancil Hoffman Park) depending on available water supply.
 
Monitoring efforts should include the flow released from the Folsom / Nimbus facilities, i.e. the volume of flow, the timing, duration and temperature of those flows, the number of spawners that have successfully spawned, the number of eggs deposited in redds and the number of out migrants must be a part of an annual effort, with findings reported to the people for comment.              
          
The State Board is not confined by past allocation decisions.  Racanelli’s global perspective of a watershed like the American River, there are several upstream diversions.  Since each diverter contributes incrementally to the downstream depletion or timing of flows, each should contribute proportionally to a solution, i.e. additional releases (timing, duration and temperature of released flow), and funds to improve habitat and stream conditions, etc.     

Some citations

 
California Trout, Inc v. SWRCB – 1989 –207 Cal App. 3d 585 (Also called Cal Trout 1)
California Trout, Inc v. Superior Court – 1990.  218 App.3d 187 (Also called Cal Trout 2)
 
Healey, Michael. 2002.  Lower American River Chinook Salmon Escapement Survey October   
             2001 – December 2001 California Department of Fish and Game.   
_____________. 2003.  Lower American River Chinook Salmon Escapement Survey October   
             2002 – January 2003 California Department of Fish and Game.   
­­­_____________. 2004.  Lower American River Chinook Salmon Escapement Survey October   
             2003 - January 2004. California Department of Fish and Game.   
_____________. 2005.  Lower American River Chinook Salmon Escapement Survey October  
             2004 - January 2005. California Department of Fish and Game.   
_____________. 2006.  Lower American River Chinook Salmon Escapement Survey October 
                            2005 - January 2006.  California Department of Fish and Game.   
United States v. SWRCB -1986. 182 Cal App 3d 116  (Also called Racanelli)