The State Water Resources Control Board, the government agency responsible for approving requests for new water rights, has proposed a policy for maintaining instream flows in Northern California coastal streams. This policy is intended to provide some level of protection for salmon and steelhead runs, but it’s so muddled, the extent the fishery will actually benefit hasn’t been determined. The policy’s practical result would be to significantly limit the future available water supply, for (mostly) vineyard landowners without achieving any measurable environmental benefits.
The proposed instream flow policy’s impact on local economies will be substantial. It applies to 3.1 million acres and 5,900 stream miles in Humboldt, Mendocino, Sonoma, Napa and Marin counties. It will limit future development of vineyards and other agricultural-related enterprises, which provide direct revenue to local economies in addition to indirect revenue generated from related tourism and support industries. Even many existing vineyards and family farm businesses will be impacted, as farm land may be forced out of production.
The policy would be extremely difficult for landowners to comply with, because the State Board has shifted the burden and cost of required biological and hydrological studies to the water right applicants. As a result, many landowners are having difficulty determining exactly how the proposed policy may affect them, because there is no easy way to calculate whether there is water available for diversion under the policy.
Complicated concepts, like the locations of “points of anadromy” (the highest location in the watershed where fish are found) and the classification of the applicable streams cannot be known with certainty. Landowners would have to pay expensive consultants to make these determinations, and then pay those consultants again to debate their conclusions with State Board staff when the landowner’s application comes under consideration.
The proposed instream flow policy also includes complicated mitigation requirements that will have to be developed with the assistance of engineers and then approved by the regulatory agencies. Thus, affected landowners cannot readily determine the mitigation that may be applied to their projects.
Not only will compliance be difficult, the policy will be impossible to administer. This proposed policy would compound the existing backlog of approximately 300 pending water right applications. The State Board has long-entrenched administrative troubles that have left these applicants with no resolution; some have already been in process for decades. Now, the State Board is proposing to change the rules and require these applicants to start over with no guarantee their applications will ever be processed. On a case-by-case basis, the State Board could decide certain applicants don’t have to start over. However, based on water applicants’ collective past experience, there will be few, if any, exceptions.
The proposed instream flow policy will further complicate the State Board’s administrative troubles. Few water right applicants could qualify under the proposed policy, meaning the majority of landowners would probably have to apply under the variance process. However, the State Board hasn’t provided guidance regarding such an application or the standards that would be applied. As a result, the State Board’s administrative process will continue to be paralyzed.
After all is said and done, it’s not even clear the fishery resources in the affected areas would benefit significantly from the severe measures imposed by the new policy. The State Board has made no attempt to determine the extent the fishery could benefit from the proposed instream flow policy and, thus, apparently has no ability to determine its relative success or failure if it were adopted. This failure to evaluate whether the proposed policy would even result in an increase in the steelhead and salmon populations raises questions regarding whether the policy uses water wisely.
The policy fails to recognize the variety of factors that impact fish populations, only one of which is inadequate stream flows. In some circumstances, for example, the fishery is not being impacted by inadequate stream flows; rather, the fishery is being impacted by the overwhelming force of flood events causing habitat destruction due to erosion of stream banks, destruction of riparian habitat and incision of stream channels. Despite that, under the proposed policy, water diversions would be limited during storm events, even though diverters could provide environmental benefits by reducing the destructive force of the flood flows by filling their storage reservoirs at these times.
The scientific basis for some components of the policy is also suspect. The proposed policy has different instream flow requirements depending on location of water diversion. There are different requirements in small watersheds as compared to large watersheds, and between diversions located either high or low within the same watershed. The State Board’s proposed decision to treat water diverters differently isn’t necessarily based on a sound scientific foundation. The application of these varying policies to real situations produces results with questionable fish benefits. For example, it’s unclear why significant water resources should be dedicated to stream reaches where fish have, historically, almost never been found.
The State Board needs to seriously reevaluate its proposed instream flow policy. The public should tell the State Board not to adopt the policy as proposed and instead consider a collaborative watershed approach that will actually provide the promised fishery protection while also satisfying the California constitution’s mandate that our state’s water supply be put to beneficial use. The public—particularly landowners who are potentially affected by the policy—are strongly encouraged to submit comments to the state board by May 1, 2008, which is the public comment deadline.
Rebecca Sheehan is a water law and natural resources attorney with Kronick, Moskovitz, Tiedemann and Girard in Sacramento. For more information about the instream flow policy, visit www.kmtg.com.
