ListofMajorTextRevisionstotheNorthCoastIntegratedRegionalWaterManagementPlan(PhaseIII)
Commentsthrough:July2014
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1 Section 5.10 of the Plan references Iron Gate dam as being “slated for removal”. (Plan, at p. 72) The term “slated” suggests a far greater degree of certainty than actually exists with respect to the proposed Klamath settlement. As recently as June 19, the Federal Energy Regulatory Commission itself acknowledged in an order “that there is no apparent prospect of the federal legislation called for by the settlement being passed or of the necessary actions by the Secretary of the Interior taking place.” (147 FERC ¶ 61,216.) Siskiyou County requests that this reference be deleted or that it be revised to note that the dam has been “proposed for removal”. The same paragraph [as above] also references three power‐
generating dams in Oregon. However, in addition to Iron Gate Dam, the Klamath Hydroelectric Project includes two other dams in Siskiyou County (Copco 1 and Copco 2) and one dam in Oregon (J.C. Boyle). The Plan references marijuana cultivation as “agriculture” or an “agricultural enterprise”. (Plan, at p. 61, 62 & 91.). Siskiyou County requests that the Plan recognize that not all jurisdictions would characterize marijuana cultivation as “agriculture” or an “agricultural enterprise”. Section 5.14.4 of the Plan, entitled “ECONOMIC OPPORTUNITIES”, lists marijuana cultivation under “Other areas for consideration by the Region’s leadership”. Specifically, this section identifies “[t]he potential transition from the currently illegal marijuana cultivation industry to the potential future state of legal, regulated marijuana cultivation.” (Plan, at p. 82). Siskiyou County has concerns about the nuisance aspects of marijuana cultivation, and requests that the Plan recognize that not all jurisdictions would consider marijuana cultivation as a regional economic opportunity for consideration. Certain language in the Plan may be read as suggesting a mandatory duty on the part of the County to regulate the appropriation of groundwater. The Plan states in Section 5.7.2, at page 67: “In California, regulation of extraction and appropriation of groundwater is the responsibility of local agencies. Siskiyou County has developed The phrase “slated for removal” has been deleted.
2 3 4 5 The sentence is modified to “…Iron Gate Reservoir and Copco 1 and Copco 2 dams, which provide…” and reference made to “four” additional dams, not “three”. Inserted statement as footnote, at each requested location: The NCIRWMP recognizes that not all jurisdictions would characterize marijuana cultivation as “agriculture” or an “agricultural enterprise.” Inserted statement as footnote, at requested location: The NCIRWMP recognizes that not all jurisdictions would characterize marijuana cultivation as a regional economic opportunity for consideration. Replaced sentence “In California, regulation of extraction and appropriation of groundwater is the responsibility of local agencies” with the requested sentence “In California, local agencies may opt to regulate extraction and appropriation of groundwater. Siskiyou County has developed…” #
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several codes regarding groundwater. A Groundwater Advisory Committee has been appointed and is active for Scott Valley (Siskiyou County Code of Ordinances 2012). Adjudication for the Scott Valley includes a defined interrelated groundwater area.” Siskiyou County requests amendment of this language to clarify that “[i]n California, local agencies may opt to regulate extraction and appropriation of groundwater.” The Plan, at Sections 5.5.1 and 9, references conflict between jurisdictional boundaries. Section 9 suggests that the NCRP intents to “develop and apply a framework to resolve overlapping boundaries and potential for conflict among local jurisdictions (e.g. Tribal, county, Resource Conservation District) and Watershed Management Areas (WMAs).” Further clarification in the Plan regarding this concept and its aim is requested. The Plan, at Section 9.6, relates that in 2010 the NCRP voted to include three Tribal representatives to the PRP and the TPRC, and explains that the “decision has made the North Coast the Region in California with the most formal Tribal involvement in water governance and implementation project technical review.” (Plan, at p. 147). “[W]ater governance” does not appear to be an accurate description of PRP and/or TPRC activities and Siskiyou County requests that this language be changed to refer to “IRWM governance.” The Plan notes that [i]n March of 2013, the state of Oregon backed the Klamath Tribes’ claim to have the oldest water rights in the upper Klamath Basin,” and that tribes can restrict farmers that draw water from rivers where tribes have the oldest claim. The Plan states: “As of the writing of this report, the impact of this for California water users is unclear.” (Plan, at p. 114‐115). Siskiyou County requests that this statement be further clarified. Is this suggested uncertainty in regards to the legal effect of the decision in California? Or a physical effect that may be felt in California? Or both? The Plan uses the term “tribal water” (p. 10, n.6), however, this term is not defined within the document. Siskiyou County requests that the term “tribal water” be defined in the Plan. RESPONSE
Replaced the specific reference to “develop and apply a framework to resolve…” with the more general to “facilitate resolution of…”, which leaves the specific method of resolution open for local interpretation, as appropriate. The phrase “water governance” has been replaced by the phrase “IRWM governance.” The sentence “As of the…is unclear” has been deleted as unnecessary.
The term “tribal water” is in the Plan Section 1.5 Statewide Priorities, as a footnote to the listing of DWR 2012 “IRWM Priorities” that include “…improve Tribal water and natural resources”. However, no definition of “Tribal water” is provided by DWR, neither in the 2012 IRWM Priorities listing nor on the DWR website(s). Thus, the Plan cannot resolve the issue as requested. To address #
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concerns, the footnoted sentence referring to IRWM Priorities has been modified to read “…include – but are not limited to – drought preparedness; use and reuse water more efficiently; practice integrated flood management; and protect surface water and groundwater quality.” The paragraphs have been inserted into Sections 1.4.4, 2.5.3, and 5.1.1.1.
[Following text added by NCRP staff] It is the intent of the NCIRWMP to document the fact that each of the North Coast Tribes exerts their jurisdictional authority according to their own traditional policies, laws, mandates and capacity. Add the following paragraphs to document sections that describe County jurisdictional authority/ jurisdiction [Sections 1.4.4, 2.5.3. 5.1.1.1]: “North Coast Tribes are separate and independent sovereign nations within the territorial boundaries of the United States. The sovereignty of Tribes has been acknowledged in the U.S. Constitution. This sovereignty is inherent and flows from the pre‐constitutional and extra‐constitutional governance of the Tribe. Early federal policy and U.S. Supreme Court case law recognizes that Tribes retain the inherent right to govern within political boundaries (Worcester v. Georgia (1832) and that power to interact with Tribes is vested in the federal government. (Cherokee Nation v. Georgia (1831). This established governmental structure recognizes the sovereign and political independence of Tribal nations and its members. This right is also recognized by the State of California. Pursuant to the Executive Order B‐10‐11, the State “recognizes and reaffirms the inherent right of these Tribes to exercise sovereign authority of their members and territory.” The North Coast is the ancestral territory of North Coast Tribes. The majority of the North Coast Tribes have an inherent responsibility for managing their ancestral territories whether they currently have the capacity to or not. Therefore, North Coast Tribes’ jurisdiction goes beyond the gathering, fishing, and hunting rights, which each individual Tribal member retains. Replace placeholder text for “Tribal Priorities” (Section 1.5) with new The following paragraph and bullets have been added to Section 1.5 “Tribal text received from Tribal representatives to reflect Priorities”: North Coast Tribes share the priorities of many counties, municipalities, federal, state, and local agencies, and community groups. This is largely because of the responsibility that Tribes have as governments. Priorities of North Coast Tribes as recorded by the NCRP are developed in part from conversations among NCRP Tribal leaders (including Tribal PRP and TPRC representatives), and between Tribal communities and the NCRP via Tribal Engagement Consultants and Coordinator. NCRP outreach to 34 Tribal #
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12 Replace “Tribe(s)” with “Tribal government(s)”
13 14 15 17 Replace “Tribal areas” with “Tribal lands” or “Tribal Territories”
Tribes prefer “engagement” to “cooperation” whenever feasible
Replace land “ownership” with land “management” wherever applicable [most instances] and/or with “land ownership and management” Update the North Coast Region (Map 1) to include the polygons for “Tribal Lands” (GIS layer from CalTrans/BIA) Section 2.1.6 North Coast Tribes 18 Section 2.3. re: stakeholders: Recognize the dual nature of Tribes as 16 RESPONSE
governments in the Region has been formalized via a listserve of Tribal representatives in North Coast Tribal government and Tribal environmental agencies. This process is ongoing and it is inappropriate to generalize across all “Tribes” but for the purposes of NCIRWM planning, several priorities have been articulated: •Expand meaningful participation of Tribes in the North Coast IRWM planning process •Implement mechanisms to build the capacity of participating Tribes & provide technical assistance for project submissions •Identify water related implementation projects •Share relevant information between Tribes and governmental/non‐
governmental agencies •Respect of Tribal Governmental structures, and the sovereign and political independence of Tribal Nations and its members •Document specific water related issues and priorities in North Coast Tribal areas some of which include: Water quality and quantity of groundwater and surface water including stream temperatures, impaired water quality Protect groundwater resources from over‐drafting and contamination. Subsistence harvesting and marine management Conservation, enhancement, and restoration of watersheds and aquatic ecosystems Climate change effects Drought concerns including related water supply reliability and quality Replaced the words “Tribe” “Tribes” with “Tribal government” “Tribal governments” Replaced “Tribal areas” with “Tribal lands” or “Tribal Territories” as specified.
Replaced the word “engagement” with “cooperation” throughout.
The word “landownership” has been replaced throughout with “land management”; in some instances reference is made to “ownership/management”. Map updated
Updated the listing of North Coast Tribal Nations (also as a revised Table 70; source CalTrand and BIA 2012) Added text “…and north Coast Tribes (while recognizing the dual nature of #
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both participant stakeholders AND as government entities.
Tribal participation/participants as both stakeholders and government entities.” Added “Tribal Natural Resources agencies” and “Tribal environmental and fisheries agencies” where reference is made to equivalent state and federal agencies, throughout document. Verbiage added throughout to make the point clear.
19 Note that many Tribes have natural resources agencies that are equivalent to state and federal agencies. 20 Make clear the distinction between Tribes with limited resources (i.e. DACs) and those with adequate resources (e.g. not all Tribes are disadvantaged). Section 6.3.3. Please replace with the following language: [From] “…and those water rights ‘perpetually’ ‘reserved’ as was reaffirmed through the Winters Doctrine…”with requested text modifications. 21 22 Section 6.3.3 “Issues for North Coast Tribes” add sentence.
23 Section 6.3.3 “Issues for North Coast Tribes” replaces last sentence with requested paragraph. 24 Section 6.4, replace final sentence “There are numerous other examples…” with requested paragraph. 25 General Comment: The IRWM Plan refers to other documents (e.g., Project Review and Selection Process Guidelines) consider stating that such documents are part of the IRWM Plan. Text replaced with: Tribes are watchful of impacts and infringements on Tribal adjudicated water rights, those confirmed by negotiated agreement, and those water rights “perpetually” “reserved” as affirmed in Winters v U.S. (1908, “Winters Doctrine”). The Winters Doctrine affirmed that when an Indian reservation is created, the water necessary to fulfill the reservation's purpose is reserved. Tribes retain rights to the amount of water necessary to fulfill the reservation's purpose. Federally reserved water rights, including those reserved for Indian reservations have priority over other water rights. This Doctrine was extended in 1976 to include groundwater use on or near reservation lands. Added text: “Additionally, subsistence harvesting and marine management remain an issue for North Coast Tribes.” Added paragraph: North Coast Tribes were integral in the NCRWQCB adoption of Native American Cultural (CUL) and Subsistence Fishing (FISH) beneficial uses. California Tribes and Environmental Justice organizations are working with the SWRCB on the consideration of statewide adoption of these CUL and FISH beneficial uses. Added paragraph: The Pit River Tribe and Modoc County have entered into an interagency cooperation with the Bureau of Indian Affairs to address water shortage, agricultural overuse and impacts to water quality, groundwater depletion degrading instream flows and infringement on the tribes adjudicated water rights. There are numerous other examples of past, present, and planned strategic collaborations intended to address the water management needs of the North Coast Region. Added to Section 1.1 Introduction and Planning Approach, Overview of the NCRP & the NCIRWM Plan & Process: “Throughout this NCIRWMP, there is reference to policy and guidance documents (e.g., Project Review and Selection Process Guidelines) available on #
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26 Governance (1): The information provided only describes how formal plan updates are performed. There is no information provided on how interim changes are performed and the process for making those changes. 27 Governance (2): No information is presented regarding if an NOI to prepare and adopt the plan was published, and if the plan was or will be adopted in a public meeting. 28 Project Review Process (1): It is not clear how the project review process considers a projects relation to chosen Resource Management Strategies. RESPONSE
the NCIRWMP website (http://www.northcoastirwmp.net/). Because the NCRP uses an Adaptive Management approach to governance, these policies and planning processes are updated and approved by the NCRP PRP on a regular basis that occurs more frequently than NCIRWM Plan updates. The planning documents available online are considered formal NCIRWM planning documents and are referenced where applicable within this document.” Added to Section 2.5 Governance & Decision‐Making, Decision Making Process: “Interim changes to policy are considered on a quarterly basis at NCRP PRP meetings. The Adaptive Management approach necessitates decision‐making outside of formal NCIRWM Plan updates; these are approached in the same manner that formal plan updates are approached. Challenges are identified, researched if necessary, discussed and voted on, with consensus the goal, but majority prevailing. See Section 2.5.2 for an example of a decision entertained and resolved outside of the formal NCIRWM Plan review process, but included in the next iteration of the plan. “ Added to Section 2.7.2 Governance & Decision‐Making, NCIRWM Plan Updates:
“NCRP RWMG members and Counties adopt each iteration of the NCIRWM Plan at public meetings that have been publicly noticed through various media outlets, such as email, websites, and newspaper notifications. Tribal partners adopt the NCIRWM Plan at Tribal Council meetings which are noticed to their constituents. All counties notice their Board of Supervisors meetings at least 72 hours in advance to comply with Brown Act requirements. Each member County, Tribal Council, and project sponsor is expected to formally and publically adopt the Phase III Plan by September 9th, 2014.” Added to Section 7.0 Project Application, Review & Selection Process:
“These and other North Coast priorities (Section 1.5) provide the foundation for ongoing refinement of the 2014 NCRP Guidelines. For example, during the most recent review of the NCIRWM Plan, the lack of consideration of Resource Management Strategies (RMS) during project review was noted. The next iteration of the review process (which occurs prior to a project solicitation) will include each project’s relation to pertinent RMS in the project evaluation and prioritization process. For example, when considering projects that increase water supply reliability, those projects that incorporate multiple RMS – such as Agricultural Water Use Efficiency, Surface Storage, and Matching Water Quality to Use – not only enhance the desired water supply reliability but also provide multiple benefits. The stated RMS also strengthen the regional economy, #
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29 Project Review Process (2): The factor for EJ considerations seems to be missing from the project review process. 30 Project Review Process (3): The review process does not seem to consider the status of the project proponents IRWM plan adoption. 31 Impact and Benefit: The plan does not address when the impact and benefit section would be reviewed and updated. RESPONSE
support DACs, protect water quality, and protect environmental beneficial uses such as provision of instream flow for salmonid rearing and migration. These factors are already considered during project prioritization on an informal basis, however, in the future, project application and review will formalize consideration of RMS.” Added to Section 7.1.4. Project Application, Review & Selection Process; Priority Considerations, Economically Disadvantaged Community (DAC): “As part of its commitment to respecting the local autonomy and local culture of each NCRP member, the group has opted out of using some common terminology, such as “Environmental Justice,” that can have multiple meanings and may be considered inflammatory to some members. The North Coast is a rural region where economic disparity is the main driver. Thus, there is a strong focus on Severely Economically Disadvantaged Communities and DACs within the region and the PRP has regularly and consistently supported efforts to address economic disparity as the predominant mechanism to address environmental justice. Project review and NCIRWMP Plans consistently and comprehensively address economic disparity through implementation of projects that serve these communities. These projects are regularly weighted as described below.” Added to Section 7.3 Project Application, Review & Selection Process; Project Integration with NCIRWM Planning: “All counties, Tribes, current Proposition 84 project proponents and potential Drought project proponents will adopt the Phase III NCIRWMP by September 9th, 2014. For future implementation efforts, project proponents must formally adopt the most recent version of the NCIRWMP prior to or simultaneously with project submission. “ Added to Section 10.2.2 Implementation Impacts and Benefits, Integration of Individual Project Impact/Benefit Analysis: “Results from project monitoring data and impact/benefit analyses will be used on an ongoing basis (at programmatic level) to inform the NCIRWMP goals and objectives and project selection criteria. These data will be memorialized on a regular basis in the NCIRWMP and in project applications. The Implementation Impacts and Benefits Section will be reviewed along with NCIRWMP Goals and Objectives and will be updated as deemed necessary by the TPRC and PRP. Additionally, a Plan Performance webpage documenting impacts and benefits will be developed to include programmatic summary statistics for the region.” #
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32 IRWM Plan Standard: Data Management deficiencies.
Added to Section 13.4, Data Management & Information Sharing, Development & Maintenance of the DMP. Note: Staff has developed new language to replace all of the existing 13.4 in order to address DWR‐identified deficiencies. The new text begins: “The County of Humboldt will perform overall management of the DMP for the North Coast Region. Roles of NCRP project proponents and NCRP staff, as they relate to project monitoring and data reporting, are outlined in Appendix G “Monitoring Protocols for NCIRWMP Evaluation”. The DMS will document project benefits through the NCIRWMP website. The NCRP will be launching a new website by mid‐September 2014; this will include a Plan Performance page that provides programmatic summary statistics for the region as well as data for individual projects. The Plan Performance page will be updated at least annually and more frequently as needed. This webpage will be distributed to all relevant state agencies. Additionally, on an ongoing basis the North Coast will track statewide databases, evaluate mechanisms for ensuring compatibility with statewide databases, contact relevant state agencies and send information regarding the NCRP and NCIRWMP to relevant state agencies for inclusion in their databases. At all times, the NCRP will maintain open communication channels with state agencies and serve as a conduit where appropriate to disseminate information between local and state/federal levels.” Additional subsections address (1) Project Performance – QA/QC and Benefits; (2) Stakeholder‐Identified Topics; (3) Data Collection Techniques; and (4) Data Management and Dissemination, for the project, watershed, and Region level.