June 7, 2013

California fish and wildlife department follows PLF advice on stream flow recommendations

By Anthony L. Francois Senior Attorney

We have reported here and here on the California Department of Fish and Wildlife’s efforts to impose water diversion limits on Scott Creek in Santa Cruz County, by revising existing streamflow recommendations.

Last week, PLF (joined by representatives of the California Cattlemen’s Association and Western Growers) met with the Department’s Director, General Counsel, Water Branch Chief, and Acting Bay-Delta Regional Manager.  The meeting was to discuss the recommendations that PLF, Cattlemen’s, and Western Growers provided the Department in this letter.  Among the concerns we highlighted are the fact that the proposed revisions to the Scott Creek flow recommendation were occurring outside the Department’s established annual workplan, that the revision relied on outdated and unsuitable modeling methods that do not reflect actual river conditions, and that the proposed revision purported to limit water diversions when the recommended flow levels were not being met.

Based on a subsequent meeting yesterday, it appears the Department has taken much of our advice to heart.

Department staff met with landowners in the Scott Creek valley yesterday (with PLF in attendance at landowner invitation), and announced that they had decided not to pursue the revisions to the Scott Creek flow recommendation.  They also informed us that for future flow recommendations (including revisions and new recommendations), the Department would be following its published annual workplan, and that new rivers would not be added to the workplan without prior outreach to landowners.  Finally, the Department staff expressed a clear interest in using up to date scientific methodology, including the incorporation of historic stream gauge data that provide important insights into the realistic flows that are available for fishery protections.

PLF defends liberty from government encroachment.  When government agencies make good decisions based on good advice, they deserve recognition.  Before we go overboard , though, the main outstanding point from this episode is the Department’s assertion of authority to limit water diversions in its streamflow recommendations.  Since the Department is ceasing further work on the Scott Creek recommendation, we do not have a clear statement from them on this issue, or whether the Department will include similar provisions in future flow recommendations.

Based on this open question, PLF will remain vigilant, and when necessary will take further action to ensure that the Department is not exceeding its authority on water rights and water use.

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