Definitions of Streams from Instream Flow Policy

John – I am somewhat aware of the proposed instream flow policy (others in the office are participating more closely). This policy should not affect the definitions of ephemeral/perennial in our Basin Plan onsite policy. We are aware that the Basin Plan definitions are unique and intended to represent a conservative approach to stream protection in relation to onsite systems. It was never intended to apply to other programs.


To Water Board,

I am wondering about the definitions in the Instream Flow Policy
regarding ephemeral and perennial streams.

The following is from a letter I sent out regarding this issue. Are you
changing the definitions in the Basin Plan?

In the Basin Plan –

Ephemeral Stream – Any observable water course that flows only in direct
response to precipitation. It receives no water from springs and no
long-continued supply from melting snow or other surface sources. Its
stream channel is at all times above the local water level. Any water
course that does not meet this definition is to be considered a
perennial stream for the purposes of this policy.

Perennial Stream – Any stretch of a stream that can be expected to flow
continuously or seasonally. They are generally fed in part by springs.

In the instream flow policy –

Ephemeral Stream – A stream or part of a stream that flows only in
direct response to precipitation. It receives little or no water from
springs, melting snow, or other sources. Its channel is at all times
above the water table.

Perennial Stream – A perennial stream has flowing water year round
during a typical year. The water table is located above the stream bed
for most of the year. Groundwater is the primary source of water for
stream flow. Run-off from rainfall is a supplemental source of water for
stream flow.

The differences in definitions are very important. For septic systems
there is a 100′ setback from perennial streams and a 50′ setback from
ephemeral streams. We fought the county for over two years re: a septic
system they wrongly approved, in part because they claimed a stream
within 100′ of the site was ephemeral, not perennial. There is a spring
directly across from the septic site that feeds this stream year round,
albeit not with a large amount of water. We live in a waiver prohibition
area re: septic systems (which the county has ignored more than once)
because of the fragile nature of our community water supply. This issue
went all the way to the Regional Water Quality Board where we lost
because WQB granted two waivers to the applicants – 1. reduced setback
from the perennial stream to 70′. and
2. Allowed the system to be installed on a cut bench that was created on
a slope of over 40%.

Changing the definitions of ephemeral and perennial streams gives both
the county and the state a little more leeway in skirting the issue. I
do not know if the instream flow policy definitions constitute a change
in the Basin Plan.

I am also including an article from the Anderson Valley Advertiser dated
Jan.2 and wonder what your thoughts are on this perspective.


By Mark Scaramella

Late last month California’s Water Resources Control Board issued the
final draft of their “Policy for Maintaining Instream Flows in Northern
California Coastal Streams.”

The new policy was prepared in accordance with Ca. Water Code Sec.
1259.4 which states that “On or before Jan. 1, 2008, the board shall
adopt principles and guidelines for maintaining instream flows in
coastal streams from the Mattole River to San Francisco…”

In other words, guaranteed water for fish, the achievement of which
/might/ result in fish in the guaranteed water.

There wasn’t much critical comment about this bold-sounding initiative
aimed at keeping enough water in streams to ensure that Northern
California’s once lush fish runs, at a minimum, might begin to
re-establish themselves. Mendocino County offered no formal comment and
most of the comment the Water Board did receive were generally
supportive, agreeing that something must be done, that it’s long
overdue, along with encouragement to do it, do it right and do it better.

Back in Oct. of 2004 after Gov. Schwarzenegger first signed the enabling
legislation – AB 2121, authored by liberal Assembly Member Sheila Kuhl
before she was elected to the State Senate – the enraged Ca. Farm Bureau
declared that the draft guidelines were going to be written in secret
without public (i.e. Farm Bureau) participation, and that the process
would impose “burdensome and illegal” water rights fees on landowners.
Then-Farm Bureau Pres. Bill Pauli (a Potter Valley grape grower) called
the original legislation “the worst kind of back room legislation.”
Pauli added that the legislation and the Water Board’s policy proposals
“pose a clear threat to the viability of agriculture in the North Coast
area, with the ominous possibility of greater statewide impact…[The Farm
Bureau] believes that this bill impairs private property rights,
threatens jobs and livelihoods, increases government red tape, and flies
in the face of public participation in government decision making.
California’s farmers and ranchers can now look forward to higher fees,
less stable water rights and more regulation.”

Of the several dozen comments sent to the Water Board in 2006 regarding
the first draft of the new policy, the only one with enough substance to
be worth quoting at any length was this comment from Richard LaVen and
David W. Goble, water staffers for the City of Fort Bragg:

“The USGS website lists 775 water data sites for Mendocino County. Of
those, only 53 contain data (some dating from 1911) that might (or might
not) be useful in defining a ‘winter 20% exceedence flow’ [i.e. minimum
high flow level below which water diversion would be prohibited] at a
given point of diversion. Of those 53 stations, only 12 are currently
operating. None of the operating stations are representative of the
water yield from small watersheds. When faced with increasing water
demands and climate change that may well lead to longer term reductions
in available water supply, our institutional policy appears to be
directed toward making complex quantitative decisions with decreasing
amounts of information.”

In other comments about the earlier draft posted online late in 2006 at
the Water Board’s website, however, even organizations like the Farm
Bureau, the Russian River Property Owners Association, and the Sonoma
County Wine Commission voiced no serious objection, saying they’d be
“willing to cooperate with others in the same watershed in a process
that could result in flow standards tailored to meet local conditions.”

In suspiciously identically worded letters, the Russian River Property
Owners Association and the Sonoma County Wine Commission added that “it
is better that all parties work together to achieve on-the-ground
changes than spend time and money on multiple steps in the standard
water rights process,” adding, “We find the concepts being put forward
for process changes, a North Coast Permit and a watershed management
approach can deliver improvements that will benefit the Board,
applicants, and fish.”

This new cooperative-sounding stance was a dramatic reversal for the
Farm Bureau especially.

What happened between 2004 and 2006 to explain the conciliatory new tone
from the Farm Bureau and their fellow diverters?

We read in the Farm Bureau newsletter of Oct., 2004 which had the
originally angry complaint that “the Calif. Farm Bureau Federation and
other agriculture and business organizations already have been meeting
with state officials to discuss future implementation of AB2121.”

What kind of implementation were the growers and developers discussing?
We don’t know exactly, but looking at the finished product we can make a
pretty good guess.

* * * *

If you follow these matters at all, you probably think that a watershed
group is a motley collection of “stakeholders” in a watershed –
envionmentalists, bureaucrats, and property owners – who sit around
talking about how everybody has to work together to achieve consensus
about improving practices which harm rivers and streams and the few fish
left in them. Unreadable reports from these groups are the work product,
but the reports are written in prose that would put a cranker to sleep
an hour into a run.

Anyone who’s attended a watershed group meeting on the North Coast knows
that they never achieve anything because the enviro members tend to
limit their requests to very modest things like installing stream gauges
or taking water temperatures or doing small creekside stabilization
demonstration projects which the property owners – mainly grape growers
in this area now, formerly timber companies – object to strenuously.
Consensus is generally achieved only after most of the enviros resign in
frustration, after years and years of fruitless bickering and posturing
– and after most of whatever damage was being addressed by the group is
already well-documented history.

That was the watershed group of yesteryear.

Then came the Water Board’s new policy guidelines.

Paragraph 12.1 of the new draft policy defines a Watershed Group this
way: “A watershed group is a group of diverters in a watershed who enter
into a formal agreement to effectively manage the water resources of a
watershed by maximizing the beneficial use of water while protecting the
environment and public trust resources.”

That’s right. A watershed group is made up /only/ of the people who want
the water!

To be a state-sanctioned watershed group the diverters have to apply for
a state-approved charter. “The purpose of the charter is to ensure that
watershed group participants are in agreement regarding the goals of the
group and the tasks that must be completed to achieve these goals. The
charter shall contain watershed group participant names, roles, and
responsibilities, and a description of the individual water right
applications or petitions involved. It shall also describe the key
contents of the technical documents that will be prepared by the
watershed group, and include an estimated schedule for submitting these
documents to the State Water Board. The State Water Board shall review
and concur with the proposed project charter before the watershed group
commences work. The State Water Board will consider the extent of
participation from applicants and petitioners relative to the total
number of pending applications and petitions in a watershed as one
factor in deciding whether to approve the proposed project charter.”

Translation: the Water Board, having only minimal staff and funding, is
turning over the regulation of water to the very people who have pending
permits for water diversions.

“The watershed group shall study the instream flow needs of fish and
fish habitat using the site specific study guidance contained in this
policy. The watershed group shall submit a report detailing the results
of the study to the State Water Board. The watershed group shall submit
information necessary to prepare appropriate environmental documents so
that the State Water Board may make a determination of the impacts of
the proposed projects to the environment, public trust, and the public
interest for the purposes of preparing water right permits for the
proposed projects…”

“Watershed groups proposing to coordinate operation of water diversions
shall provide a a watershed management plan that describes how
diversions will be operated, monitored, and maintained, including
monitoring and reporting methods…”

So the diverters will study their own water flows and also enforce
/their own/ diversion permits.

“The watershed management plan shall include a certification that the
watershed group has the financial resources to build, operate, maintain,
and monitor the proposed projects consistent with the terms of any water
right permits issued for the project(s) and shall provide proof of
financial resources.”

Adios, hippies.

Who do you think will have the “financial resources” to do all this? The
public? Of course not. The only people with these kinds of financial
resources are Big Ag, large developers, and large, well-funded
governmental organizations like the Sonoma County Water Agency.

If a member of the public wants to challenge the new diverters’
watershed group’s diversion plans, the watershed management plans or
their (lack of) monitoring and enforcement, they’ll have to pay through
the nose to come up with their own data, their own lawyers and their own

Which of course, won’t happen.

At last count, the Water Board has 310 pending applications to take
water from North Coast streams for private use. Of those, about 200 are
on the already hugely overdrawn Russian River, which is already on
minimum flow because of the current drought combined with the 15%
reduction in Eel River diversions and various conservation programs from
Humboldt to Marin. The Russian River is expected to be a priority body
of water for implementation of the Water Board’s new policy – handing
water management of the Russian over to developers, the wine industry,
and Sonoma County. Soon we’ll be reading press releases from a newly
formed Russian River Watershed Group full of happy-talk about how
they’re moving forward to protect the fish and become state-certified
stewards of North Coast rivers and fisheries!

No wonder everyone’s happy with the Water Board’s new proposal. Enviros
are pleased that there’s a nice-sounding policy in place to protect the
water for the fish. The state is happy because the diverters have to pay
for the burdensome data and paperwork. And the water diverters are
pleased because they get to control the entire process.

It’s a win-win-win solution for everybody and everything except water
and fish.

I hope that both of you are doing well these days. The lot in Larkin
Woods is still for sale. I still have serious reservations as to the
design, which doesn’t match the existing topography. I wonder who will
address these issues.

Sincerely, John Roberts

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