March 8, 2013

California department of fish and wildlife backs off on limiting water diversions, for now

By Anthony L. Francois Senior Attorney

Last December we reported on a court victory for the Siskiyou County Farm Bureau, in which the court ordered the Department of Fish and GameWildlife not to use its streambed alteration permits to regulate water diversions under valid water rights.  While this is a great success, the Department has other tools it can use to try to improperly regulate water rights.  Also last December, the Department surprised several landowners in the Scott Creek watershed of Santa Cruz County with the news that the Department was trying to limit their water diversions through minimum streamflow requirements.  The Department drafted a revision to an existing streamflow requirement without consulting any of the landowners, then gave a select few of them 30 days to comment – over the December holidays.

The truly alarming aspect of the Department’s action was not that it sprung this draft on the affected landowners with little time to comment.  It was the substance of the revision itself.  The Department proposed exactly the same monthly minimum flow levels as the pre-existing requirements, based on exactly the same outdated study, with no new data or analysis.  So what was it revising?

The answer: the Department added terms expressly restricting water diversions if the proposed streamflow requirements were not met.  The Department has no legal authority to regulate water rights or water diversions in this way, and landowners in the watershed quickly challenged this overreach.  The Department first extended the comment period to early April, and then last Friday withdrew the draft revisions from public comment.

While this battle is won, the campaign continues; the Department remains committed to revising the Scott Creek streamflow requirements, and has not yet backed down on using this technique to try to control water diversions.  Interested parties in other watersheds in California will want to stay tuned, since what happens in Scott Creek could easily be replicated everywhere else in the state.  Given the procedural and technical questions so far, and the Department’s ongoing effort to regulate water diversions, we think the Department owes the public a better explanation of the procedures it uses to establish and revise streamflow requirements.  PLF will remain vigilent and will keep you informed.

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