PUTAH CREEK COUNCIL ORAL HISTORY PROJECT Directed by jesikah maria ross ([email protected])

A project of Dr. Eric Larsen’s Research Lab University of California Davis In collaboration with

AUDIO INTERVIEW WITH BILL JULIAN April 16, 2014  

PUTAH CREEK COUNCIL ORAL HISTORY PROJECT Directed by jesikah maria ross ([email protected]) A project of Dr. Eric Larsen’s Research Lab, UC Davis In collaboration with the Putah Creek Council Audio Interview with Bill Julian Kusch/Madison Property ! April 17, 2014 jesikah:

All right, so can we just start with the easy stuff? If you could just tell me your name and your occupation.

Bill:

I’m Bill Julian. I’m a lawyer. I’m semi-retired from state government. I worked in the state assembly for a number of years. I’ve worked for the public utilities commission for a number of years.

jesikah:

And can you say where we are and describe what you see and what you hear and what it’s like to be here?

Bill:

We’re in the channel of Putah Creek. We’re maybe 15 yards from the actual water’s edge. We’re in a beautiful riparian forest. It’s spring; it’s green; there are breezes in the top branches of the trees. There are some birds that we can hear, and it’s a very peaceful, restful setting.

jesikah:

So what brought you to Davis and when did you come?

Bill:

I came to Davis in 1982 as a trailing spouse. My former wife, the mother of my oldest daughter, came out to Davis to teach labor law at the law school. I came out as a trailing spouse. I got admitted to practice in California then went to work in the state legislature as a utility regulation specialist for the state assembly.

jesikah:

So this time I would like you to tell me your name and your relationship to the Putah Creek Council.

Bill:

I’m Bill Julian. I am the spouse of Robin Kulakow who is one of the founders of Putah Creek Council and I was drawn in to both the restoration efforts of the council, and more importantly the legal struggle that occurred after 1989.

jesikah:

So what drew you in? What appealed to you about this ragtag group of nature nerds known as the Putah Creek Council?

Bill:

Well, the main thing was I was married to one of them. I’ve been very – I always wanted to be supportive of what Robin was doing. Some of the skills that I have, over time, is that I have been involved in a number of complicated and sophisticated legal battles. I have the basic attitude that you live life on your feet Julian

 

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and not on your knees, and when the time came that we had to enter into the fray I was one of the people who helped to make that happen. (3:05) jesikah:

I’m going to ask you so much about all of that. So let me stay with the Putah Creek Council beginnings for a second. Tell me the year you first became involved, and one of the first meetings you attended.

Bill:

Putah Creek Council started in 1988 as a project of the Audubon Society. It was I would call it a grassroots conservation/environmental initiative. Robin, Steve Chainey, Susan Sanders, we were all friends. They pursued restoration of the creek as an example of local . . . very local focus, and a concrete, hands-on approach to environmental restoration. At that particular time, I was the chair of the Democratic Party in Yolo County. The Solano Irrigation District, which was the operator of the Solano Project, wanted to acquire ownership of the project from the US Bureau of Reclamation, and Vic Fazio who was our Democratic congressman had a piece of legislation that supported that transfer of the dam from federal ownership to local ownership. A close friend of ours, Robin and mine, a guy named Bob Kahn, was the legislative advocate for the Solano Interests. He approached Robin and Steve and the Putah Creek Council about supporting that legislation. I think my first sort of involvement was Robin and I talked over whether that was a good idea or not. We thought it seemed reasonable, so long as there were appropriate safeguards for all the interests on the creek. That seemed to be forthcoming. Our friend assured us that was the case. So I think that probably was my first involvement was in that context. That proved to be . . .

jesikah:

One second.

Bill:

More complicated than we initially thought. But our idea was Putah Creek was a local resource; it was a local treasure, and local control by the Solano Parties would be a good thing and it would be consistent with the local, concrete community resource values that we had.

(6:00) jesikah:

What was the Solano Project?

Bill:

The Solano Project is a large water impoundment of Putah Creek by the Monticello Dam which is constructed in the early and mid-50s to impound the waters of Putah Creek and to divert most of them into Solano County for agriculture and urban development. It was a very controversial project at the time it was proposed and developed. It was completed in the 1950s. The Monticello Dam was completed in 1957. The reservoir behind it, which is Lake Berryessa, Julian

 

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was . . . essentially the lake was created by 1959 and for 30 years thereafter, by the time we got to the Putah Creek Council, it was an established, very large reservoir project owned by the US Bureau of Reclamation and operated for the benefit of Solano County by the Solano Irrigation District. jesikah:

So tell me then . . . you said earlier that there was the Solano Interests. Can you then kind of connect the dots for me? The Solano Interests wanted to own the dam?

Bill:

Right. The dam and the related water rights are owned by the US Bureau of Reclamation, a federal agency. But the dam was operated under an operating agreement by the Solano Irrigation District for the benefit of Solano farming and industrial interests and development interests. The history of the dam is kind of interesting from a Yolo County perspective. The original project would have joined Cache Creek where Yolo County has significant water rights and Putah Creek would’ve had an even larger reservoir than Lake Berryessa. Yolo County considered that and decided not to participate. So Putah Creek, which is the boundary between Solano and Yolo Counties, is impounded and 90 plus percent of its water is diverted into Solano County. There are some Yolo County Interests that have . . . get Putah Creek water through the Solano Irrigation District. The most important one is the University of California. It’s a significant customer of SID.

(9:00) Yolo County’s decision not to participate and not to . . . in effect divert Cache Creek into Lake Berryessa, that was a significant decision. The Yolo County water rights on Cache Creek and Clear Lake are managed by the Yolo County Flood Control and Water Conservation District primarily for the benefit of agriculture in Yolo County. But as a result, even though Putah Creek is the dividing line between Yolo and Solano, Yolo gets virtually none of the water. jesikah:

I’m so glad you spelled that out, and I can’t believe you can say the water district’s name so easily. I can never do that. Okay, so take me back to one of the first Putah Creek Council meetings and paint me a picture. Who was there? What were you talking about? Where was it?

Bill:

Well my . . . my main recollection is actually in the spring of 1990 when the . . . when we had begun to get into an adversarial posture with the Solano parties. What initially happened with the – with Putah Creek Council, was a project of Yolo Audubon. It split off at some point in 1989 and became sort of a separate organization. That happened at about the time that the decision to support the transfer legislation happened, and that was in I want to say spring of ’89. 1989 was a very dry year. Putah Creek Council became sort of – it began the transformation from just being a pure sort of conservation/preservation Julian

 

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organization into a more activist organization. In the summer of ’89, there was a . . . the creek completely dried up, and it was kind of a horrific experience. The City of Davis operates a summer camp on Putah Creek on the university’s property. The creek dried up. There were dead fish everywhere. Kids were horrified by that. (11:40) So the City of Davis and Putah Creek Council entered into discussion with the Solano parties. And because the Solano parties wanted the support to transfer the legislation, they made an accommodation and sent some water down the creek. It turns out that it was . . . we thought it was going to be free; it wasn’t totally free. The city ended up paying some money, I think, to pump ground water. But we reached an accommodation. I wasn’t particularly involved in that piece. But in the winter of ‘89/’90, it became clear it was going to be another dry year and there would be a similar restriction of flows down the creek. We went back to the Solano parties and said “Okay, we’d like to have the same kind of accommodation in the summer of 1990 that we had in the summer of ’89. Can we work something out?” And they basically said no. At that point, conversation about taking a more activist posture began to occur. The meeting that I have the most vivid recollection of is a meeting in our backyard with, I don’t know, 30 or 40 potential supporters. A friend of mine who is an environmental lawyer in San Francisco named Diane Grueneich came and talked about the possibility of litigation. She had been involved with litigation involving electric transmission lines in the Hope Valley. She ended up being on the public utilities commission years later. We talked about how difficult it would be if we were unable to secure water voluntarily, how difficult it would be to pursue a legal – a strategy. And the idea of moving Putah Creek Council from a conservation organization to a more activist posture was controversial within the group. There were some people who simply, for reason of philosophy and values, did not want to be antagonistic, even if it meant a devastating shortage of water on the creek. There were other people who were prepared at least to consider a more aggressive approach. (14:45) jesikah:

Which of those two branches won out?

Bill:

Well, the process evolved from there and I guess one – Steve Chainey was always sort of the visionary and the leader. I’ve had some experience in these kinds of endeavors, so he and I and Susan and Robin and Ted Beedy and others talked about that possibility and decided we needed to exhaust every avenue before considering that.

Julian

 

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So Steve and I went to the bureau and we said “We really need water down the creek. You guys own the project. We would like to . . . the Solano parties said they are not interested in voluntarily releasing water. We would like to buy water from the bureau and send it down the creek.” The director of the bureau was a guy named Larry Hancock. We had this big meeting with all of his lieutenants out at their headquarters. Larry Hancock basically said “Environmental groups never come in and tell us they’re willing to buy water, to pay for it. They’re always demanding it. This is new; we’ll do it.” You could see his lieutenants, sort of steam coming out of their ears. They were not happy. Then he said “Well, you’re a little environmental organization. We’d like to do this, but if you can get the backing of the University of California, the city of Davis, we’ll do that.” So Steve went to our friend Sid England who was a special assistant to Larry Vanderhoef who at that time was not the chancellor, he was the vice-chancellor for administration. Sid setup a meeting with Steve and Vanderhoef and myself, and we just said “We had this terrible problem in Putah Creek last summer. We’d like to avoid it. We’ve talked to the bureau. They said they’ll sell us water. We’ll raise the money, but we want to have the backing of the university. Would you be willing to do that?” And Vanderhoef thought about it and said yes. (17:50) jesikah:

And then they went to the City of Davis as well?

Bill:

I’m thinking that it was probably me, Steve, Susan and Robin. We all had friends on the city council. But the main participant was the university. The university had – it had these sort of mixed issues, because the city had the summer camp but it was on the university’s property. The city had important sort of political interests, but the university had real sort of fundamental interests in the conservation of its reserve on university property. They had significant research interests. Peter Moyle, who is the world’s leading expert on freshwater fish in California, was on the faculty and was very, very interested. Hap Dunning, a law professor – water law professor – was one of the real sort of intellectual underpinnings of the whole public trust doctrine. So the university had a number of research and academic and economic interests. They also had a contract for 4,000 acre-feet of water from the Solano Irrigation District. They were also a customer. So they were really the key player. And when Mr. Vanderhoef said that he would support us, that was a very good thing. So we went back to the bureau and said “We’ve got the backing of the university. We’re selling t-shirts, literally, and raising money. We’d like to do that.”

Julian

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And so the bureau and the university and Putah Creek Council actually entered into a contract for the sale of water. So we had a big press conference out on the creek, a dry creek, dead fish and so on and so forth. But it was sort of a hopeful thing the bureau and the university and this little environmental organization, Putah Creek Council, had come to an amicable and constructive resolution of this problem of getting water down the creek and saving the fish in the creek. jesikah:

I want to just back up one second.

Bill:

Sure.

jesikah:

Did you raise money for the water only by selling t-shirts?

Bill:

Well, no. I want to say, you think about – the bureau’s water pricing at that time, I mean Solano Irrigation District was paying like $3 an acre-foot for water. The MNI rate was like $10. We said “Well, we want 3,000 acre-feet. That’s what we had last year. We’ll raise $30,000 at $10 an acre, an acre-foot.”

(21:00) We had John Ott made a donation – made a big donation. But no, we were just doing bake sale type fundraising. It was a community thing. I mean as far as we were concerned, it was a very sort of affirmative, constructive approach to what hopefully is a one-year problem which was a dry creek in the second year of a dry spell, the drought. So we were very hopeful that that was . . . that would be the outcome. jesikah:

So then what happened?

Bill:

We also – we did have a plan B. We had begun approaching law firms to represent us pro bono. We believed that this was – this raised sort of fundamental issues about the public trust doctrine and the enforcement of Fish and Game Code 5937 which is a statute embodying the public trust that requires the owners and operators of dams release enough water below the dam to keep the fish in good condition. That was the legal principle that had been involved in the Mono Lake cases on the east side of the Sierras. It had never been successfully pursued in the Central Valley. I was talking with a guy named Hal Thomas who was a lawyer at Fish and Game, and Hap Dunning. So we put together a pretty extensive pitch to law firms that have pro bono practices, including Morrison & Forrester. We were trying to make the case that if this gesture of good faith and good will that we had done didn’t work, that we’d have a fallback plan. So we had the contract with the bureau. We had this big press conference and said everything’s going great. The Solano parties then said “Well, this water behind the dam belongs to us and we don’t like that. We think you’re taking water that belongs to Julian

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us. We don’t like the precedent. And so if the regional director of the board of the Bureau of Reclamation follows through with this, we’ll go to Washington and put a stop to it.” jesikah: (23:50)

Can I ask you just two questions before we go to this next piece?

Bill:

Sure.

jesikah:

So whose idea was it to develop this legal strategy around the public trust doctrine?

Bill:

Well, I think it was Steve and I had some influence on it. As I said, we were talking with some folks who at this point the Mono Lake litigation was . . . the cases were pretty new. But we thought this was a really, really good fact pattern to apply in the Central Valley as well. And so Hap, Hal Thomas, myself, Steve and there were probably others but that’s who . . .

jesikah:

And another question is you mentioned you practiced law. What kind of law do you practice? Yeah, what kind of law do you practice? Or were you practicing at the time?

Bill:

At that time, I was the chief consultant to the utilities committee in the state assembly. My field is utility regulation, energy law. I worked in the state assembly at that point for six years. But before that, I was in law practice in Indiana. I did what you would call impact litigation, which is where you pick out a fact pattern and you attempt to shape legal theories that will advance the law.

jesikah:

Uh-huh, okay.

Bill:

And so yeah, there’s some cases that I did in Indiana that sort of reflect that approach. And so that was certainly in the back of my mind.

jesikah:

I know you’re married to one of the key organizers and activists and founders with Robin Kulakow, but is there anything else in your background experience or your interests that motivated you to spend so much of your own time and energy on this restoration project with a bunch of activists?

Bill:

Well, actually, when I came to California I said . . . I’d been involved in a lot of controversial stuff. I said I’m not going to get involved in water in California. I broke my promise to myself. You know, what we . . . what Putah Creek Council was trying to do, and really Steve Chainey is really a visionary but he’s also an organizer. I think what Putah Creek Council was trying to do was to affirm the value of a local landscape as a way of bringing communities together. Julian

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And what we were attempting to do with restoring the creek and then with making sure there was water coming down the creek, even though it was in times of trouble, was to just affirm in a very concrete, local, personal way some sort of fundamental values. (27:20) So when we saw the Solano parties basically saying no, they did not want to do that, and not only that they wanted to control the future of the dam in perpetuity through the transfer of ownership, we said this is not right. Like I say, you can either live life on your feet or on your knees. We decided we’d live our life on our feet and we’d fight for what we thought was right. So we tried this very affirmative, constructive thing and then we had this plan B. So when the Solano parties said no, we then – Susan Sanders had personal friends at Morrison & Forrester. She went to them. They persuaded the pro bono committee to represent us. We developed a request for temporary and preliminary injunction. But it’s really not what we wanted to do. I personally went to Vic Fazio, and I said to Vic “We’re about ready. We’re having these problems on Putah Creek and we’re about ready to really kind of go to war. Is there anything that we can do to prevent this?” And he just said “Look, you’re going to have to do what you’ll have to do.” So we filed a lawsuit. We got a temporary injunction that got the 3,000 acre-feet down the creek in early September to preserve what was left of the native fish. Then we told Vic that we were not going to support his – continue to support his legislation. Bob Schneider, who is a local activist, very involved with the Sierra Club, had through the Sierra Club connections in Washington. They persuaded Senator Bradley to hold the legislation in the Senate and it died. Vic was very, very angry. But to his everlasting credit, he very quickly reengaged. This all happened in September of ’90. By November, he had his chief of staff in Washington out in California trying to understand the different sides, the different perspectives, and see if there was a way to bring this together. (30:00) So really for the next five years, there were various attempts to mediate the dispute. Vic funded or procured funding – federal funding – for studies of the creek. He persuaded a very respected water expert, a guy named Bill Dendy, to mediate the dispute and see if anything could be done to reassure the downstream users, which by this time included landowners as well as the university and the city and Putah Creek Council, that the creek could be operated effectively for all affected parties. But the battle was really joined in September of 1990 when we filed the injunction and killed this legislation.

Julian

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jesikah:

So I have a couple of questions. I know the words, but don’t know what they mean, so maybe other people won’t. Can you tell me what an injunction is and spell out one more time, like you guys did – you filed for an injunction and you got an injunction. Can you say what that is and the year again?

Bill:

Yeah. In the summer of 1990, the creek went dry and in early September, like September 1st or 2nd of 1990, we asked a court to order the bureau and the Solano Irrigation District, which was actually the operator of the dam, to release water – 3,000 acre-feet of water – down the creek to protect the remaining native fish. The court granted that temporary order and water did come down the creek in September of 1990.

jesikah:

So there’s a difference between an order and a lawsuit?

Bill:

Well, a lawsuit is the request for intervention by the court. And then what the court does is it issues an order or denies the order, but the court does something on the basis of that complaint.

jesikah:

So when you all went, when Putah Creek Council went to the court that first time in 1990, it wasn’t a lawsuit, it was a request?

Bill:

Well, it was a lawsuit. A lawsuit is initiated in this case by filing a complaint. The complaint sets out facts and asks the court for relief. We were asking – the relief we were asking the court to order was the release of 3,000 acre-feet down the creek. The court granted that relief and ordered water down the creek.

jesikah:

So let me just back up, because I want to make sure I have this right. So you went to – the Putah Creek Council went to the bureau, said we want to buy water. The bureau said fine, environmentalists never want to do this. You signed a contract – bring in the university and the city. You guys did that. You signed a contract with the bureau. That was all going forward and the Solano Water Interest said “If you do that, we’ll . . .” Who initiated the suit? I’m trying to figure out . . .

Bill:

The bureau said “We are not going to honor the contract because the Solano parties are telling us that we will get in trouble if we do.” And so we – at that point, we felt we had no choice but to try to get the coercion of the court to get the water down the creek. We asked the court for that relief, and the court granted that relief.

jesikah:

And when you say we asked the court, is that technically a lawsuit?

Bill:

Yeah.

jesikah: (34:30)

Okay. Julian

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Bill:

A lawsuit is – describes the activities involved with complaining to the court, asking the court to do something, and then the court taking some action which can include saying “No, I’m not going to do anything,” or “Yes, I’ll do part of what you want me to do,” or “I’ll do all of what you want me to do.”

jesikah:

Great. So the bottom line is in 1990, the Putah Creek Council brought suit against the Solano Water Party Interests?

Bill:

Correct.

jesikah:

Okay. Then my next question is when you . . .

Bill:

Do you want me to go back and just sort of say that more . . .

jesikah:

Sure, why not?

Bill:

After the Solano parties put the kibosh on the contract, Putah Creek Council felt we had no choice but to ask a court to intercede for us. So we went to the court. We complained to the court, filed a complaint asking the court to provide us with the relief of sending water down the creek. The court granted that relief and sent 3,000 acre-feet down the creek in September of 1990 which saved the remaining endangered fish. That lawsuit initiated the lengthy proceeding that ended up with the 1996 judgment.

(36:00) jesikah:

Okay, so I want to back up to . . . there’s this other thing I don’t know how to phrase. When you met with the Bureau of Reclamation, and I think Hancock said “We’re interested if you bring on the City of Davis and UC Davis as something.” What . . .

Bill:

Essentially, they wanted more people and more reputable, responsible people than little Putah Creek Council on this contract. This really was very – a very different way of dealing with these environmental water flow issues. They wanted to have some institutional stability to that arrangement, even if it’s a one-time deal for a small amount of water and a small amount of money. We took them at their word. We didn’t think this was just a way of sort of creating an insurmountable obstacle. We took them at their word, and again through the intercession of people like Sid England we were able to get the university’s buy-in. The university, by the way, took a very measured approach to the whole Putah Creek issue. They created various research bodies that include lawyers as well as research biologists and engineers and so on to take a really comprehensive look at the university’s interest in the creek.

Julian

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The conclusion, at least as far as we don’t know what the discussions were, but the university became a central, full partner in the litigation as well as all the mediation efforts and other efforts to arrive at a solid arrangement for the management of the creek for the benefit of everyone involved. jesikah:

Wow, and then it also did its mission, right? To conduct research on behalf of the citizens . . .

Bill:

Well the university’s interests were very diverse. I mean it was research; it was recreation. They had their own water supply issues. It was a very communityminded effort.

jesikah:

But you all benefited from a lot of funded research that would be useful in the process.

Bill:

Yeah. I mean the whole community did. It was a very – you know, I think it was really a lesson for a lot of us about how the university and the Davis community and the different interests within the Davis community could all work together on a project that benefited us all and really gives a good expression of our whole community.

(39:00) jesikah:

So when the Putah Creek Council . . . this might be the layperson’s terms. When the Putah Creek Council filed a suit against the Solano Water parties, were UC Davis and the City of Davis partners? What’s their technical role? How do I frame that?

Bill:

We initiated the suit. But within I want to say a couple of months, both the city and the university became parties to the suit on our side. They joined the litigation and became parties.

jesikah:

Parties. And so is this suit like Putah Creek Council versus . . .

Bill:

Actually, I think it is. It’s Putah Creek Council versus US Bureau of Reclamation I think is the name of the suit. I don’t remember. Because the bureau also became a party. The Solano Irrigation District was a party. I don’t know if any state water agencies were parties, but the Solano County Water Agency which is different from the Solano Irrigation District was a party. But the major antagonists were what we call the Solano parties: Solano County Water Agency, Solano County Irrigation District, etc. And then Putah Creek Council, City of Davis and the University of California. And then the three Yolo side entities just worked together very, very closely. Again, with this idea that we’re all part of the same community and we want to represent the best values of the community.

Julian

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jesikah:

And was it your Plan B that you had to go into action with in terms of not only doing the suit, but using Morrison & Forrester? Were they your legal people?

Bill:

Well, they represented us initially but they also had – have – legal relationships, legal representation, with entities in Solano County who have interests in the creek. So at some point, six to eight months, they informed us they had a conflict of interest and they’d have to withdraw. So we went with a different firm. Beveridge & Diamond I believe was next. They ended up – I’m not really sure what the sequence was. We ended up with terrific lawyers who now live in Davis, but they were the third or fourth group. This is a major piece of pro bono litigation. Not every law firm is in a position to do this.

(42:00) jesikah:

Why? What does it mean, a major piece of pro bono?

Bill:

There ended up being millions of dollars in legal fees and thousands of hours of legal work. One of the advantages that Putah Creek Council had is this is a university town. We had people who were recognized experts who were willing to volunteer for us. Steve Chainey was really the mastermind of the technical and scientific aspects of the case, but we had hydrologists, we had engineers. We had Peter Moyle, the greatest fish biologist in the world, all of whom were in fact volunteering for us things that you have to pay hundreds of thousands of dollars for in terms of expertise and insight. Our determination was that whatever the outcome of the creek should be, it should be informed by good science and by honest exploration of the facts on the ground and the science. A piece of litigation like this, which is number one unprecedented and number two, legally complicated, and number three, very scientifically sophisticated and detailed, it’s a major undertaking and not every law firm is in a position to do it. We were very fortunate we felt like we had a . . . we were a good client, and we felt like we had a compelling legal case and a compelling public interest/moral case. We were very fortunate in having lawyers who agreed with us and who would put in the time and effort to do that.

jesikah:

Let’s go back to where we are in the narrative. We are at you were at the court, agreeing with the first order and complaint.

Bill:

Right.

jesikah:

So then what happened? What was the Solano Water party response, maybe I should say.

Bill:

Obviously they were . . .

jesikah:

Tell me who they are. Julian

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(45:00) Bill:

The leader at that time of the Solano Interest was the general manager of the Solano Irrigation District, a guy named Brice Bledsoe. Brice Bledsoe was . . . they were very unhappy with this outcome. But they still harbored hopes, I think, that the transfer which is sort of their pot of gold at the end of the rainbow would happen.

jesikah:

The transfer being . . .

Bill:

The transfer of the ownership of the dam from the Bureau of Reclamation to the Solano Interests would occur. I think they held out that hope for a couple of years. Vic Fazio, as I say, to his everlasting credit, said “Okay, I’ve got important constituents and friends on both sides of this controversy. I’m not going to run away from it; I want to mediate it.” So he brought his staff out to tour the facilities, to listen to people, and then he engaged and really tried to mediate for several years. They had studies; we had working groups; we had extended negotiations, again led by Steve Chainey.

jesikah:

And how are you involved in all that?

Bill:

I stepped back at that point. I was kind of, at that time, sort of a warrior.

jesikah:

What do you mean?

Bill:

Well I was one of the ones saying “Look, we’ve got to fight over this and we have to stand up for it.” And so my personal involvement in the mediation of the discussions was not so significant. What needed to happen was people like Steve who was fluent in all the technical issues and who could deal with some of the Solano experts on their own terms, had to take the leadership. Some of our other technical people, and the university . . . So my personal role was actually I stepped way back.

(47:30) jesikah:

Do I understand you correctly? Are you saying that . . . you know, you were wanting to step up and fight because you’re kind of a warrior. But at the moment, what was the strategy? The strategy that was decided upon was something else?

Bill:

The objective was always to get a stable flow regime that would restore the health of the creek and would then provide a basis for the kind of restoration efforts and the kind of solid management of the creek. We always preferred to do that by negotiation and agreement. So a lot of my role at that point, our kids were – you know, Robin and my son was little. Susan Sanders and Ted Beedy’s son, about the same age. So we had meetings at our house. I’d serve the tea and cookies and Julian

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watch the kids and listen to the discussions about what to do, how to raise the money, and keep the mediation negotiation process going. jesikah:

So you had a big role, because you were providing all the kinds of support that would allow those other folks to step forward.

Bill:

Well, in a way, yeah.

jesikah:

So the case . . . so how long was it? What were the years between the injunction which was . . .

Bill:

The injunction was September of 1990. The trial was the spring of 1996. So it was five years before it finally got to trial.

jesikah:

And what was happening during that time? The five years?

Bill:

Well, for one thing, there was enough water. So you didn’t have the sort of severe threat to the creek. There’s enough rainfall; there’s enough water down the creek. So we didn’t have the severe threats that we had in 1989 and 1990. But then there was also this very detailed set of meetings, negotiations, discussions, trying to get to a flow regime that would support all of the values on the creek and not primarily support the consumptive uses in Solano County. The Solano Interests, they were probably divided but I don’t know that for sure. But when push came to shove, there was not enough willingness to compromise that we could actually settle the litigation. So we ended up I’d say for the last year before we actually had the trial, it was spent in trial preparation which meant really formalizing our legal position. The law in this area had evolved from the early sort of crude public trust 5937 issues which we saw in 1989 and 1990 to more sophisticated approaches to the public trust at the water board that developed in the early 1990s. So it made the legal theories really tight. We made the factual contentions really tight. We had . . . a lot of time was spent trying to get a detailed history of the creek and a detailed history of fish in the creek. There were lots of records of salmon, for example, coming up the creek into the Berryessa Valley which was inundated. That work was done – Steve was in the middle of all of that work. He’s really the guy who put this thing together.

(52:00) But our hydrologist, a guy named Gus Yates, and a brilliant guy in Peter Moyle on the fish . . . we had a historian who was looking at records of land use in the Berryessa Valley. It was an extensive factual presentation that ended up getting put on in the trial.

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jesikah:

So you said a couple times, all the values on the creek. Can you tell me what are the different values that you were referring to in terms of representing and addressing all the values of the creek?

Bill:

Well, the creek, it’s something that brings together a lot of different elements of the Davis and Solano County communities. They’re farmers who take water directly out of the creek or who buy water from SID. There are people who want to canoe in the creek and use it for recreation and wildlife viewing and all those sort of aesthetic things. There’s the university that is a landowner that manages land along the creek, that does research in the creek. The city has a summer camp and has elements of the creek that are involved with recreation programs, formal and informal.

(53:50) One thing that was apparent at the very beginning was that Putah Creek runs out of the coast range into the Central Valley and it terminates at the Yolo Basin which was a historic well and was a historic stopover on the Pacific Flyway for migratory water fowl and which resides sort of in the middle of the Yolo Bypass which is this gigantic flood control structure that protects Sacramento from periodic flooding. So sort of in parallel with the whole issue around Putah Creek was an effort to recognize that the real – at the terminus of Putah Creek, there should be a wildlife area. There should be . . . this historic wetlands should be restored, and the function of the wetland as a stopover for migratory water fowl should be restored. So sort of in parallel with the Putah Creek struggle was an effort that Robin – that my wife sort of facilitated, which was to create a wildlife area at the terminus of Putah Creek. And this idea was hatched by Susan Sanders and Ted Beedy and Robin and Steve Cheney and a couple other folks. So they set out to make that happen and persuaded Betsy Marchand who was the local supervisor whose district it was that this was a good idea, and persuaded Vic Fazio that this was a good idea. Vic and Betsy persuaded Tom Hannigan that it was a good idea, who was our state assembly member. Hannigan put forward the idea of putting up money to buy the critical piece through the wildlife conservation board. And this all started happening at just about the same time. Robin – our son was born in April of ’89 and Robin wanted to work from home. And so we created the Yolo Basin Foundation as a vehicle for sort of letting Robin focus on creating a wildlife area, which she did. It’s been 25 years now, so it’s . . . the Yolo Basin Foundation is still around and there’s a 17,000 acre wildlife area at the terminus of Putah Creek. jesikah:

And how is Robin still involved? Julian

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(56:50) Bill:

Robin is executive director. She founded it. She’s executive director. She runs the organization. But again, to his everlasting credit, Vic Fazio was central to that. That’s why the name of the wildlife area is the Vic Fazio Yolo Bypass Wildlife Area. At the same time as he was trying to resolve these disputes on Putah Creek, he also was facilitating for studies and then ended up getting money to do the restoration work for the Army Corps of Engineers. So in 1997, when the wildlife area rehabilitation/reconstruction/restoration had happened, President Clinton came out and dedicated the wildlife area, gave a great speech. Vic gave a great speech.

jesikah:

Did Robin give a speech?

Bill:

Robin did not give a speech, but she got to take President Clinton bird-watching. Our oldest daughter, Sarah, introduced – who was in high school at the time – introduced President Clinton. She gave a great speech. So yeah, it was good.

jesikah:

One clarifying thing. Did the Solano Water Interest ever get to buy the dam?

Bill:

No. Never happened.

jesikah:

What do you think about that?

Bill:

Well, from a public policy standpoint it probably was a bad idea from the beginning. The reason is that there’s some inherent tension between the upstream and the downstream interests. If you give an overwhelmingly dominant position to the upstream interests, they have no incentive or any reason to accommodate the downstream interest. And so in looking back on it, it’s probably not something that we ever should have supported. But again, this is always about the local community and at the beginning we thought “Well, we’re all going to act in good faith. We’re all going to get along. So local control’s a good thing.” If we’d been a little more thoughtful, we might’ve been concerned about this sort of inherent tension between the upstream and the downstream which has ended up getting resolved, I think, with the Putah Creek Accord. But it took ten years of struggle.

jesikah:

All right, let’s move towards that. I want to get some stories about the trial, and then I want to hear all about the accord, and then I want to wrap up with what does this mean for us today? Lessons learned and all that kind of stuff. So probably about another half hour.

(59:50) Bill:

Okay, though maybe shorter. As far as the trial goes, I didn’t go to the trial that much. Susan and Robin, however, were there. One of the two of them were there almost every day. So they’re really your best informants. I will have to say, I was Julian

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in the court when the judge announced his decision and started out by saying “Putah Creek is a gem.” It was an amazing experience. jesikah:

What did that feel like?

Bill:

Oh, it was astonishing. Just overwhelming.

jesikah:

And what did everybody do?

Bill:

Well, everybody was respectful of the judge, but I think internally jaws were dropping and tears were welling. It was an amazing experience.

jesikah:

Jaws were dropping by the Solano and tears were coming up for Putah Creek?

Bill:

I think that’s right.

jesikah:

Well let me just ask, then, maybe do you have any thoughts on what the . . . let me get to two questions. What was the Putah Creek Council asking for in the litigation all along? What was their position?

Bill:

Initially, when we sought the injunction, our position was really very narrow. It was we need water down the creek to save the fish this summer, this fall. But our position evolved over time because we – we were operating . . . at the time the suit was brought, we were operating under a regime that had been created by the state water board in the early 1960s that was primarily focused on diversion of water and permitted the Solano Irrigation District to invoke really punitive restrictions on flows in dry years. We recognized that California has very, very – it has variable weather and we have droughts and so on and so forth. We understand the water users need flexibility in how they operate these facilities to account for dry years and drought and so on, but there needed to be a better balancing of the interests of the downstream, particularly the in-stream fish-related values and interests. And so there needed to be a different flow regime. We had very good hydrologists. We could quantify different positions and different effects and there was a lot of research that was done to try to get at a very sort of granular analysis of water regime. One of the things about the Solano Project that’s sort of unusual, Putah Creek is not a very big stream and Lake Berryessa is a very big reservoir. The ratio of stream flow to reservoir size is the highest of any dam in the west.

(1:03:00) So it means that there’s a lot of water in comparison to what’s called the safe yield. And so there is some flexibility in operation from year-to-year because they have so much storage capacity. There was an effort to try to deal with some of Julian

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those realities and to get a really good regime. So when we – but I think our objectives also evolved over time. Instead of “How do we deal with these extreme emergency conditions,” we wanted a more stable long-term regime that would number one, protect the native fish assemblage which Peter Moyle said was the most complete of any stream in California, the remaining native fish. But we also wanted to . . . we had a lot of historic records about salmon and steelhead. We wanted to see if salmon runs could be restored as well, or at least some attraction. So we asked for anadromous flows – we ended up asking the court not only for flows to protect the native fish, but also to reestablish anadromous fish in the stream. The judge gave us relief on the native fish; he denied relief on anadromous fish. jesikah:

Why?

Bill:

I think in his mind, the historic record wasn’t sufficient to require those kinds of . . . the kind of operation that would provide some sort of attraction flows for salmon. At least I think that’s what it was. So the Solano Parties obviously were devastated. They took an appeal and we cross-appealed and asked the appellate court to grant us anadromous fish, or flows for anadromous fish. And that setup – there were then another four years of negotiations led by Joe Krovoza who really, really showed his mettle and his insight, just a phenomenal job.

jesikah:

Joe, at that time . . .

Bill:

Joe at that time had graduated from law school and Steve Chainey stepped down as the chair of Putah Creek Council, and Joe stepped into that role.

jesikah:

So was he . . . was he litigating and the chair? No?

Bill:

No, he was the chair. He was out in the private practice for a very short time, then he went to work for the university in a job that I think he still holds today, which is Development Director for the Institute of Transportation Studies. But Putah Creek – as the chair of Putah Creek Council, he was putting in a tremendous amount of time and effort in this post-litigation posture.

jesikah:

Because he was involved in . . . he was one of the lawyers involved in the suit.

(1:06:35) Bill:

Right. In the time after he graduated from law school and was in private practice, he had some kind of support role for our principle lawyers. But it was not – it was relatively short. I think he went to work for the institute like in ’97, so maybe a year after the judgment. Julian

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jesikah:

So . . . so walk me through, and start again, Judge Park. Tell me the ruling; tell me what Solano Water Interest did; what Putah Creek Council did; and then what happened.

Bill:

Okay. After a six week trial, Judge Park issued what we consider to be a sweeping vindication of our position about the value of Putah Creek to the community. He started out by saying Putah Creek is a gem. He applied a legal theory that our lawyers had put forward which essentially said that the loss of the upstream portion of Putah Creek to Lake Berryessa was an irremediable – a loss that could not be rectified. But in consideration of that, special care should be taken to protect habitat and fish and the ecosystem downstream. And so he provided for a flow regime that would protect native fish and would take on average significantly more water for those in-stream/downstream purposes than had been the case under the prior water board certified flow regime from the early 60s. I don’t remember the specifics, but it was a lot more water explicitly for the ecosystem, for the fish, for the wildlife, for the riparian vegetation and so on.

(1:09:00)

jesikah: Bill:

He denied a regime that would have attracted anadromous fish back into the creek. The Solano parties appealed that order. Putah Creek Council crossappealed asking for anadromous fish, and so that setup a dynamic where both parties had some stake in achieving a good appellate outcome. However, I think . . . I’m not sure I understand that. Tell me why. How did that setup . . . The Putah Creek Council wasn’t just protecting the order. Putah Creek Council, the city – I should say the city and the university, all three parties, were not just protecting their order from an appeal; they were also appealing a portion of the order that would’ve actually gotten more than what the judge had allowed. This was, I believe, the first significant – the first significant decision applying the public trust doctrine in a heavily-managed Central Valley stream issued by a court. So it was a significant decision. I think at some point the Solano parties realized and the rest of the water world realized that an appellate decision – a published appellate decision affirming this judgment would be extremely significant on a lot of other streams, including the San Joaquin in the Central Valley. They really decided they didn’t want that to happen. And so they started to engage in serious negotiations to settle the case without a definitive Court of Appeals ruling.

jesikah:

Wow.

Bill:

So those negotiations were intense. Joe led those negotiations and was really our chief negotiator and was making decisions which he would then come back to the Julian

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Putah Creek Council board. But he was really the person that was responsible for our posture. jesikah:

And what years are we talking?

Bill:

This is ’97, ’98 and into ’99.

jesikah:

And can you . . . were you at any of these meetings that you could describe?

(1:11:50) Bill:

I wasn’t. Joe and I would talk if there was really a perplexing issue that would come up.

jesikah:

So why would Joe come talk to you?

Bill:

We were friends.

jesikah:

More than that, though.

Bill:

We were friends and I think we probably had mutual respect for each other’s moral positions and legal judgment.

jesikah:

Well weren’t you also the shadow legal consultants throughout this whole thing?

Bill:

Well, we had really, really good lawyers representing us. But yeah, I tried to follow the case and I didn’t have . . . I didn’t have a stake, other than getting a good outcome I didn’t have any stake in it. I didn’t have any attorney fees involved. I didn’t have any sort of formal obligations. So just on a personal level, Joe and I could just talk back and forth and think things through together.

jesikah:

And you had that training you talked about, that impact.

Bill:

Well, yeah. Yeah.

jesikah:

Just trying to establish that maybe you had a little bit of a role supporting some of the legal thinking.

Bill:

It’s okay.

jesikah:

You are so modest. All right. So that really helped me out. Now I understand why the Solano Water Interests had an interest in trying . . .

Bill:

They really wanted to settle. Where Joe showed I think his greatest character was they were in effect willing to give us the native fish, and Joe felt very strongly Julian

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about anadromous fish. And Joe came under extreme pressure, both from the Solano parties and from some of our co-parties, to drop the anadromous fish and Joe would not do that. He said the historic record is clear. The technical solutions can be developed. We understand the need for a dry-year release schedule; we understand the need for flexibility. But there needs to be some accommodation for the historic salmon fishery, which wasn’t huge but the record was clear. Joe just showed tremendous grit and character. (1:14:45) And so when we ended up negotiating the final resolution, the Putah Creek Accord, salmon are in it. And so I’ve had the great pleasure of seeing spawning salmon five feet away in this channel of the creek. Joe is, you know, responsible for that. He had the grit, and he had the support of the board. I mean he wouldn’t have done this on his own, but he had the grit and the determination to see it through. jesikah:

So tell me about the Putah Creek Accord. Are you familiar enough with it to say what the settlement was?

Bill:

Well, really, Joe’s the person who can give the details. But I do want to say Steve Chainey’s original vision was that Putah Creek, it’s a community resource. The Putah Creek Accord really reflects that value. It reflects the whole range of interest and communities, the landowners, the environmentalists, the kids, the researchers as well as the water users, the farmers and the big irrigators and so on. And so in many ways, the Putah Creek Accord really does kind of keep faith with the original vision of Putah Creek as a community resource. I think the judge got that in the way he characterized Putah Creek as a treasure and a gem. So I think I really . . . it’s one of these things where you never know how things are going to come out, but this really came out the way people intended it to, as an affirmative, constructive, inclusive community resource that will – all of us and our kids and other people in the future will be able to appreciate and enjoy and it’ll bring us together.

jesikah:

And were you at the event when they signed the accord?

Bill:

I was.

jesikah:

Can you describe in as much detail when was it, where was it and what happened?

Bill:

Well, there was a signing ceremony at the diversion dam. The Solano Project consists actually of two dams. There’s the big one, Monticello Dam, at Lake Berryessa. Then there’s a diversion dam upstream of winters that actually takes water and puts it into the Putah South Canal and takes it into Solano County. It’s the operation of that diversion dam that is what the Putah Creek Accord deals with.

(1:17:40) Julian

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So there was a signing ceremony. There were a lot of dignitaries and they went out on a little area right on the dam and signed it. Everybody then toasted or raised their fists or whatever. It was a great sort of conclusion to what had been at some times pretty bitter conflict and very controversial. But it’s a really constructive, positive outcome. I think one of the features of the accord that’s really innovative is that there’s a permanent stream keeper who manages the creek, who has everybody’s interests in mind, and can survey the creek conditions; can manage how the water works. That person’s accountable to a coordinating committee that has equal representation from Solano and Yolo, but it’s a really good example of how if you pay attention to the details and you have good faith and good will, you can manage a precious resource that a lot of people want and which can be a bone of contention instead of a source of good will and common feeling. The structure of the accord really in some ways accomplishes that. jesikah:

So what for you personally was the most energizing part about being involved in this long struggle? What’s your kind of heartfelt takeaway?

Bill:

Well, I think that it really shows how people of good will, and this is true for both Putah Creek and the wildlife area, people of good will and clear vision can figure out ways to solve problems, to create something of enduring value, which really is a process. The creek is a process. It’s a flow. It’s not . . . there’s no one point in time that sort of captures it. It goes on. And the same thing has been true of the wildlife area; the same thing has been true of the accord. It’s a demonstration of how people can come together and do something good for themselves and their community, and do it over a long period of time.

jesikah:

Why don’t you take a drink then I have a couple more questions.

Bill:

I feel like I’m sort of babbling.

jesikah:

No. Actually, I’ve just got a couple more.

Bill:

We live in very fraught and difficult times. This is just an example of how people working together can do some really good things as well as some terrible things. This is a positive, constructive, life-affirming, community-affirming process.

jesikah:

How do you think then this process is a model for other watershed groups or environmental groups, as you said? How can this be a service in that way?

(1:21:05) Bill:

Well, I think understanding how it happened can give people encouragement and hope that it’s possible, number one. Julian

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jesikah:

I’m sorry, can you start again? Like understanding how what happened?

Bill:

Understanding how the Putah Creek Wildlife Area process happened number one can give people hope and courage that it can happen. And number two, I think there are a number of practical lessons that can be learned. One practical lesson is dialogue is really important and transparency is really important. I think Robin and Steve and Susan were very transparent about what they wanted to do and why they wanted to do it. They were very persistent and they were very open. Steve’s emphasis on good science meant that no one was going to claim to have a monopoly on the truth. The way Robin has facilitated dialogue among the most diverse groups, landowners and hunters and environmentalists and local governments and the Bureau of Reclamation, the Corps of Engineers and so on . . . that approach of listening and facilitating and making sure that everybody sort of knows what’s going on and that no private agendas are going to overwhelm the process or subvert or undermine the process, those are very important practical lessons. And there are also issues – there are important institutional legal issues that need to be understood. In the case of the wildlife area, there became a critical moment when the wildlife area permitting was in jeopardy because in that particular case, the permitting agency was the Department of Water Resources, and the permitee was the Department of Fish and Game. In a thousand other projects, it’s the other way around. Water Resources is the permitee and Fish and Game is the one administrating the endangered species act who is placing conditions on the permit.

(1:24:00) So there was a point in time when understanding both the institutional and the legal arrangements that would make it possible to permit the wildlife area, which would inevitably attract endangered species who would then be taken by the floods, that needed to be figured out. Robin had a great lawyer, Paul Simmons, who was a chair of her board, and he worked it out. We had great lawyers in Putah Creek Council doing our litigation. So that legal framework, the evolving legal framework of the public trust, understanding that that’s also important. And understanding the institutional relationships. Bob Schneider was able to go to the US Senate and I had some of the Democratic Party relationships. That’s also important. You can do it. It can be done. jesikah:

There’s a great quote that Robin has in the little booklet I read where she basically says Putah Creek Council represented a new kind of environmentalism. I’m wondering if you agree with that, and if you do, if you could tell me how is Putah Creek Council new and different from other environmental groups?

Bill:

I don’t know that it’s new and different. But one thing that I think really is distinctive is this really close focus on the local, on the concrete, on what’s – what we have, what’s there in our neighborhood, in our backyard. Putah Creek, it’s Julian

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heavily managed. Nobody would ever say it’s a pristine wilderness. It’s not. But it’s ours, and affirming what’s local and what’s ours and affirming its environmental value is – it makes Putah Creek Council distinctive. There are lots of local watershed groups and so on, and Putah Creek Council partakes of that movement. But this idea that you can create environmental values in the damaged, managed environment and affirm that for your community, it’s one of the things that makes Putah Creek Council distinctive. It’s not alone in that. There are lots of folks who do that. But that’s one of the things that makes Putah Creek Council I think special as compared with maybe a nature conservancy or a very large sort of top-down organization. jesikah:

What future do you see for Putah Creek?

Bill:

Well, the future as I see it is sort of what we’re seeing in Winters. The channel is being restored. It’s a place where people who work in the factories in Winters can come and walk around on their lunch hour. They can take their kids and they can run around and be in nature. At some level, all of Putah Creek, even though much of it is in private land and access is somewhat restricted, it’s something that brings communities together, diverse communities. Winters/Davis, North Winters, South Winters, and yeah.

(1:27:45) jesikah:

Is there anything that you’ve wanted to say about Putah Creek Council or this history that I haven’t asked you about?

Bill:

No.

jesikah:

Great. Let me stop this.

Julian

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