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WB Notice for New Adoption of Instream Flow Policy

To All,

Due to the Living Rivers Council lawsuit, the Water Board had to revisit the Instream Flow Policy as a result of AB2121 and adopt more appropriate policy in accordance to court directions.  The public comment on this is due April 8.

Larry

Coastal streams from the Mattole River to San Francisco and coastal streams entering San Pablo Bay in Marin, Sonoma, and portions of Napa, Mendocino, and Humboldt counties

Water Code section 1259.4, which was added by Assembly Bill 2121

To: From:

Name of Board: Project Title:

Contact Person: Telephone Number: Project Location:

Project Description:

(Stats. 2004, ch. 943, § Board) to adopt principles and guidelines for maintaining instream flows in northern California coastal streams for the purposes of water right administration. The State Water Board adopted the Policy for Maintaining Instream Flows in Northern California Coastal Streams (Policy) in 2010 in order to comply with Water Code section 1259.4. As discussed below, the State Water Board has vacated the Policy as a result of litigation, and will consider re-adoption of the Policy at a future date. The Policy will apply to applications to appropriate water, registrations, and water right petitions. The Policy will establish principles and guidelines for maintaining instream flows for the protection of fishery resources. It will prescribe protective measures regarding the season of diversion, minimum bypass flows, and maximum cumulative diversion. The Policy contains guidelines for evaluating whether a proposed water diversion, in combination with existing diversions in a watershed, may affect instream flows needed for the protection of fishery resources.

This is to advise that the State Water Board is proposing to adopt the Policy in accordance with a regulatory program exempt under Section 21080.5 of the Public Resources Code from the requirement to prepare an environmental impact report (EIR) under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA). In order to comply with CEQA, the State Water Board prepared a substitute environmental document (SED) in lieu of an EIR in connection with the Board’s adoption of the Policy in 2010.

3), requires the State Water Resources Control Board (State WaterIn Living Rivers Council v. State Water Resources Control Board (Sup. Ct. Alameda County, 2012, No. RG10-5435923), a case challenging the 2010 Policy pursuant to CEQA, the superior court held that the analysis of mitigation measures contained in the SED was inadequate in two respects, which are described below. The court issued a writ of mandate to the State Water Board, directing the State Water Board to set aside Resolution No. 2010-0021, thereby vacating the State Water Board’s adoption of the Policy and certification that the SED had been completed in compliance with CEQA. The State Water Board complied with this directive on October 16, 2012. (State Water Board Resolution No. 2012-0058.)

The writ of mandate also directed the State Water Board to 1) evaluate certain subterranean stream delineations as a potentially feasible mitigation measure for the anticipated increased use of percolating groundwater attributable to the Policy and; 2) present sufficient information to enable decision makers and the public to understand and consider meaningfully the limited legal options facing the State Water Board to mitigate the expected increase in the use of percolating groundwater and implications for the effectiveness of the Policy. The State Water Board has revised sections 6.2, 6.9, and 7 of the 2008 SED, prepared a new Supplement to Appendix D of the 2008 SED, and revised portions of the 2010 Response to Public Comments, Volumes 1 and 2. The primary purpose of these revisions is to satisfy the court’s requirements. The revisions also clarify the impact analysis to reflect the fact that the potential switch from surface water diversions to groundwater pumping due to the Policy is unlikely to cause a significant reduction in surface water flows, and update section 7 to incorporate responses to comments developed for the 2008 SED. Revisions are shown using red font for additions and strikethrough for deletions.

The State Water Board will accept written comments on the adequacy of the substantive revisions to sections 6.2, 6.9, and 7 of the 2008 SED, the Supplement to Appendix D of the 2008 SED, and the substantive revisions to portions of the 2010 Response to Public Comments, Volumes 1 and 2 as set forth in this notice. Documents are available electronically at: http://www.waterboards.ca.gov/waterrights/water_issues/programs/instream_flows/.  Written comments must be received by 12:00 noon on April 8, 2013, and shall be submitted to:

Jeanine Townsend Clerk to the Board State Water Resources Control Board P.O. Box 100 Sacramento, CA 95814-0100

Write “Comment Letter – Revised Sections of the SED” in the subject line. Comment letters may also be submitted by email at commentletters@waterboards.ca.gov, by fax at (916) 341-5620, or by hand delivery to the following location:

Jeanine Townsend, Clerk to the Board Executive Office State Water Resources Control Board Cal/EPA Headquarters 1001 “I” Street, 24th Floor Sacramento, CA 95814