April 5, 2013

Can a wildlife agency create water that doesn't exist?

By Anthony L. Francois Senior Attorney

A previous post summarizes the California Department of Fish and Wildlife’s ongoing improper effort to regulate water rights through minimum streamflow recommendations.  First the Department published the proposed restrictions for comment, then withdrew them from comment, saying that they were going to revise the recommendations.

This week a local watershed organization sent a letter with several questions to the Department.  Among other interesting points made in the letter, the landowners note that the Department’s methodology for determining the “minimum” flow that should stay instream significantly overstates the amount of water that would ever be in the stream.  And an accompanying expert analysis backs that up.

So, the Department says you can’t divert if the “minimum” flow is not met, and then sets the “minimum” flow at more than the creek ever produces.  Sounds like a water grab in the making.  Even though the Department has withdrawn the restrictions from public comment for the time being, it still has not removed the water diversion restrictions, and the document remains posted on the Deparment’s website.  It is time for the Department to remove diversion limits from its streamflow recommendations, and use a methodology that reflects the reality of the watershed.

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