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Will Instream Flows Affect Your Water Rights? The State Water Resources Control Board Reveals a New Approach in the North Coast Instream Flow Policy June 8, 2010 by David J. Guy dguy@somachlaw.com |
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In a decision water users throughout the state should watch, the State Water Resources Control Board (SWRCB) in May adopted a “Policy for Maintaining Instream Flows in Northern California Coastal Streams” (North Coast Instream Flow Policy). The “North Coast Instream Flow Policy, which applies to the Russian River and other Northern California coastal streams, reveals an approach the SWRCB may take with respect to the various impending instream flow proceedings throughout California. Background Assembly Bill 2121 in 2004 required the SWRCB to “adopt principles and guidelines for maintaining instream flows in Northern California coastal streams as part of state policy for water quality control and for the purpose of water right administration.” (Wat. Code, § 1259.4.) The SWRCB’s “purpose of the proposed policy is to preserve the instream flows needed to protect fishery resources, while minimizing the water supply impacts of the proposed policy on other beneficial uses, including agricultural, municipal, domestic, and industrial uses.” The policy was primarily intended to protect endangered fish and it thus focuses on measures that protect native fish populations with an emphasis on anadromous salmonids (coho salmon, chinook salmon, steelhead trout) that are all listed under the federal and California Endangered Species Acts. The North Coast Instream Flow Policy The adopted policy establishes the following five principles that will be applied in the administration of water rights: (1) water diversions shall be seasonally limited to periods in which instream flows are naturally high to prevent adverse effects to fish and fish habitat; (2) water shall be diverted only when streamflows are higher than the minimum instream flows needed for fish spawning, rearing, and passage; (3) the maximum rate at which water is diverted in a watershed shall not adversely affect the natural flow variability needed for maintaining adequate channel structure and habitat for fish; (4) the cumulative effects of water diversions on instream flows needed for the protection of fish and their habitat shall be considered and minimized; and (5) construction or permitting of new onstream dams shall be restricted. When allowed, onstream dams shall be constructed and permitted in a manner that does not adversely affect fish and their habitat. The policy is triggered by applications to appropriate water from surface streams or from subterranean streams flowing through known and definite channels, small domestic use and livestock stockpond registrations, and certain water rights petitions described in the policy. The policy applies to coastal streams between the Mattole River and San Francisco. Applicants can choose to implement the policy principles through regionally protective measures (a watershed-based approach) to evaluate the effects of multiple diversions on instream flows or by conducting site-specific studies. For applicants in these watersheds, the policy (1) contains guidelines for evaluating whether a proposed water diversion, in combination with existing diversions in a watershed, may affect instream flows needed for fishery resources; (2) establishes criteria limiting the season of diversion, establishing minimum bypass flows, and limiting the maximum cumulative rate of diversion from a watershed; and (3) limits the construction of new onstream dams and contains measures to assure that approvals of onstream dams do not adversely affect instream flows needed for fishery resources. Importantly, this approach was developed by diverse parties in the region, including Trout Unlimited, Coast Action, the wine grape growers and Farm Bureau, who jointly presented this approach to the SWRCB. Conclusions and Implications In recent years, the SWRCB and courts have pursued various means of ensuring water for instream purposes and there is increasing pressure in nearly every water system to increase instream flows for fishery and other instream values. This pressure is being exerted in the Legislature, in various water disputes in courtrooms across the state, and in numerous matters before the SWRCB and the Department of Fish and Game. This pressure, in turn, is intended to and will likely affect the ability to secure new water rights and the ability for existing water right holders to fully exercise their rights. The North Coast Instream Policy was initially motivated by the Legislature requiring the SWRCB to adopt such a policy. Similarly, the Legislature last year in SB 1 “established an accelerated process to determine instream flow needs of the Delta” and it required the SWRCB to “develop new flow criteria for the Delta ecosystem necessary to protect public trust resources.” (Wat. Code, § 85086.) The SWRCB is also required to “submit to the Legislature a prioritized schedule and estimate of costs to complete instream flow studies for the Delta and high priority rivers and streams in the [Sacramento River watershed]…by 2012 and for all other major rivers and streams by 2018.” (Wat. Code, § 85087.) Additionally, it appears that the bulk of water litigation in courtrooms across the state involves efforts to reallocate water from established water rights to instream flows. These cases use the Endangered Species Act, the Clean Water Act, the Wild and Scenic Rivers Act, the Central Valley Project Improvement Act, Fish and Game Code section 5937 and several other provisions to establish these instream flows. The North Coast Instream Policy is a recent approach developed by the parties in this coastal region to address instream flows. Water users in other parts of the state will likely face similar pressure over time to develop approaches that are designed for their particular watersheds and tailored for the local circumstances. For more information about the North Coast Instream Flow Policy, visit http://www.waterboards.ca.gov/waterrights/water_issues/programs/instream_flows/ and/or contact David J. Guy at dguy@somachlaw.com. Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn. |
