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Legislators weigh in; final document has broad support

NORTH COAST -- Last-minute collaboration between attorneys representing conservation and farming interests turned widespread ire for proposed rules for water use in North Coast habitat for protected fish into wide-ranging endorsement.

At its April 27 meeting the State Water Resources Control Board was set to act on a February draft of the North Coast Instream Flow Policy, which governs when, where and how much water can be drawn from 5,900 miles of creeks, streams and rivers in all or parts of five North Coast counties. Such a policy was mandated by Assembly Bill 2121 of 2004.

Some environmental groups called the February draft too vague on the intended outcome for fish population recovery.

“The main thing is that some of the stakeholders and most of the conservation community and farmers were really unhappy with the status quo, and we all had a really strong incentive to find something that is better,” said Brian Johnson, an attorney with national fisheries advocacy group Trout Unlimited.

Farming groups called it too inflexible in determining the required amount of water to be left in the streams and wanted periodic review of the rules.

All five state legislators representing the North Coast signed an April 20 letter to the water board, saying they were “disappointed that the draft policy has ignored many of the policy suggestions brought forth by stakeholders” in early 2009 joint recommendations from conservation, farming and property owner groups.

“This should remove a lot of the problems where the water board was caught in the middle and didn’t know how to proceed,” said Noreen Evans, whose Assembly district includes Napa County and parts of Sonoma County, about the adopted policy.

A few hundred water rights applications have been pending for North Coast properties, some languishing for a number of years.

That pressure led state legislators from the North Coast to an all-day, closed-door editing session of the proposed rules on April 27 with board staff along with Mr. Johnson and Peter Kiel, a Sacramento attorney representing water-rights applications from more than 20 large vineyards.

The edited policy was endorsed in an April 30 letter to the water board signed by 17 groups including the state and local farm bureaus; conservation groups Trout Unlimited, Coast Action Group, California Trout, Nature Conservancy of California and Russian Riverkeeper; Wine Institute and a few large grape growers. The board adopted the policy on May 4.

The key change backed for conservation groups, based on a concept developed by the National Marine Fisheries Service, was limiting "cumulative effects" to what would leave fish populations "close to unharmed" when diversions by senior water rights holders were subtracted from average daily stream flow, rather than basing the limit on current conditions, according to Mr. Johnson.

Another key edit was the addition of site-specific calculations of allowable stream flow rates, rather than a regionwide formula, and instructions on how that the site research would be conducted.

“Our concern with what the board staff put out was it was a one-size-fits-all package that everybody agreed we couldn’t comply with and was overly conservative,” said Tim Schmelzer, a lobbyist with the San Francisco-based Wine Institute advocacy group.

With that site-specific regulation came edits, backed by the wine industry, for a system of monitoring and reporting compliance along with a timetable for comparing reporting data with policy goals in five years.

Site data also allowed for inclusion of tiered diversion rates, which allows for more water to be diverted in ample rain years such as this one and less in drier years.

Other additions to the policy were changes to current water-rights processing. Applicants would be able to have their consultant prepare environmental-impact documents, rather than paying for board-hired consultants to do the work. Trout Unlimited pushed for the change in permitting transparency, so that applicants must now submit a work plan on what studies will be performed by whom and when. Also there is a trial program in which applicants can ask a water board member to review interim staff decisions.

Don McEnhill, executive director of Russian Riverkeeper, which has pushed the water board to take action on AB 2121, said "We thought we needed to come to resolution so applications can move forward. Uncertainty in business really stinks.

"From our perspective it's a good policy, and now we can ask questions before the board approves water rights applications on whether they will harm fish."

The final North Coast flow policy is posted at www.waterboards.ca.gov/waterrights/water_issues/programs/instream_flows.