Alert: Dramatic New Restrictions On California Water Rights Proposed By State Water Board

The California State Water Resources Control Board ("Board") has proposed a new policy that, if adopted, will have dramatic adverse impacts on pending water rights applications for diversions and water storage in five northern California counties.  The Board has accumulated a large backlog of applications for appropriative water rights, some of which have been pending for over ten years.  The Board staff has now issued a draft instream flow policy (primarily designed to protect salmon and steelhead), entitled "North Coast Instream Flow Policy," which would fundamentally restrict the amounts, locations and conditions under which water can be diverted and stored by vineyards, landowners and other diverters.

The new policy applies to:

• All pending water rights applications for diversions and storage from all streams and tributaries in Sonoma County, Marin County and major portions of Napa, Mendocino and Humboldt Counties, including the Russian River watershed, with a few limited exceptions;
• The policy encompasses applications to appropriate and/or store water, registrations for small domestic use and livestock stockponds and all pending water right petitions (for example, to change the place of use or point of diversion); and
• There are partial or full exceptions for applications for which a water availability analysis and cumulative flow-related impact analysis or a CEQA document was submitted prior to January 1, 2008.

The major changes embodied in this policy from commonly used guidance documents and accepted Board practice for appropriative water rights include:

• The amount of water available for diversion is expected by experts to be substantially less because the Board is proposing to reserve much higher flow levels for fish (minimum bypass flows) and to cut off diversions in high flow periods to allow flood flows (maximum cumulative diversion) - the combined effect of these changes may be to restrict the diversion window to as little as only a few days per year, depending on the precise diversion location;
• The season of diversion will be limited to October 1 through March 31;
• Any application for an "onstream" dam or storage pond on a Class I or II stream will be denied if the dam/pond was built after July 19, 2006 or is not yet built, and any existing dam built after that date will need to be removed;
• Any onstream dam or storage pond that has not been fully permitted will need to be retrofitted with either a passive bypass system or automated computer-controlled bypass system that are estimated by the Board to cost between $100,000 to $3 million, depending on the size of the reservoir and other site-specific factors; and
• All applicants must expend substantial funds for civil engineers, fishery biologists and other professionals to show compliance with, or exceptions from, the policy and for non-native species eradication plans, gravel and wood augmentation plans and continual self-monitoring and reporting activities into the future.

The magnitude of these proposed changes is large.  Although the draft policy is intended to preserve and enhance stream habitat for salmon and steelhead (a goal that many water diverters share), the measures reflected in this policy could have significant adverse impacts on small diverters such as vineyards and other agricultural interests.  Most remarkable, perhaps, are the provisions applying the policy retroactively to water applications/petitions that the Board should have processed years ago.  

The Board is holding a public workshop on the proposed policy in the Regional Board office in Santa Rosa, California at 1:00 p.m. on Wednesday, February 6, 2008.  It is also soliciting written comments from the public on the draft policy and the substitute environmental document, which must be received at the State Board by noon on Tuesday, February 19, 2008.  After the comments are received, the Board will set a date for a public hearing.  However, the Board is expected to move quickly to adopt a final policy.  If the Board adopts the proposed policy without changes, it is entirely possible that legal action may ensue.

We encourage our clients and others to do the following:

• Determine whether and to what extent this policy applies to your applications, petitions or registrations;
• Submit written comments to the Board by the deadline, and include as much specificity as possible about the precise impact of the policy on your business, and consider attending the public workshop to ask questions and, if allowed, to express your views;
• Contact your political representatives at the local, state, and federal levels to make sure that they are aware of your concerns; and
• Spread the word regarding these issues and consider joining existing organized efforts.

Farella will be monitoring this issue and is in contact with interest groups, engineers, consultants and other lawyers who are working on this issue.  We plan to submit written comments on behalf of particular clients and will stay informed on developments.  If you wish to discuss any aspect of the policy or its potential applicability to your situation, feel free to contact Skip Spaulding at (415) 954-4918 or Andrew Ingersoll at (415) 954-4432.

The proposed policy can be viewed and downloaded by visiting the Board's website at:  https://www.waterboards.ca.gov/waterrights/water_issues/programs/instream_flows/