THE PONDS PROJECT - Sustainable Conservation

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THE PONDS PROJECT - Sustainable Conservation

4) The guidelines provide a process to allow new water right applications to be approved

even when minimum diversion criteria are not met. However, deviation from the

guidelines requires that alternative terms and conditions be developed based on sitespecific

studies. These studies are likely to be so expensive, and their protective

terms so restrictive, that for individual diverters, they are probably not worth

pursuing. 6

5) Although the guidelines simplify the environmental assessment process, diverters are

advised to hire a professional hydrologist to carry out the required water availability

analysis.

If water cannot be diverted from streams under the criteria for the guidelines, alternate

sources of water could be sought. Overland flow, ditch flow, and seasonal streams may

contain enough water during the winter months to fill a reservoir, and may provide an

easier path through the water right application process. Even in situations where water is

available for diversion under the guidelines, alternate sources could be investigated as

they might provide important contributions toward improved environmental conditions 7 .

Streambed Alteration Agreements

Section 1602 of the California Fish and Game Code restricts entities from substantially

diverting or obstructing the natural flow of streams without first notifying CDFG to

determine if a Streambed Alteration Agreement is required. A Section 1600 Agreement

is required for activities that “may substantially adversely affect an existing fish or

wildlife resource.” Stream diversions that do not meet the CDFG/NMFS flow guidelines

(including most, if not, all existing agricultural stream diversions in coastal San Mateo

and Santa Cruz counties) fall into this category. Many existing diverters do not know

their operations are out of compliance with State regulations due to the lack of a valid

Streambed Alteration Agreement. However, the regulations are clear that diverters must

contact CDFG about the need for a Section 1600 Agreement to operate their stream

diversions.

If a Section 1600 Agreement is required, Section 1602 states that “reasonable measures”

must be developed to protect stream resources. On fish-bearing streams, these measures

likely include increased bypass flows (i.e., flows that must remain instream at given

diversion points), screening of diversions, and improved passage for adult and juvenile

fish. To support the development of these reasonable measures, CDFG may require a

diverter to conduct impact assessment studies and comply with the California

Environmental Quality Act (CEQA).

If a diverter does not agree that the proposed Streambed Alteration Agreement measures

are reasonable, he or she can request that the issue be taken to a three-person arbitration

panel made up of one representative each selected by the diverter and CDFG, and a third

6 Guidance from NMFS on the subject is included in Appendix E.

7 Pursuing alternate sources of water might put other flora and fauna at risk, and other regulations might

apply, so diverters should proceed with caution.

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