Instream Flow Study on Scott and Shasta Rivers

by Marcia Armstrong, Siskiyou County Supervisor District 5

 Recently, Normandeau, a contractor for the California Department of Fish and Game (DFG,) held a series of meetings to begin a “data needs assessment” and to recommend a plan of study regarding instream flows on the Scott and Shasta Rivers. http://www.normandeau.com/scottshasta/project_materials.asp

According to the CA Public Resources Code (PRC 10001,) the Legislature determined that there had been an increase in requests for new water use permits in streams that could have a cumulative impact on streamflows needed for fish and wildlife. The code requested the DFG Director to create a ranked list by 1984 of significant streams where establishment of minimum flow levels was needed.

PRC 10002 and 10004 require the DFG Director to initiate studies to develop proposed streamflow requirements, specified in terms of cubic feet of water per second, for each stream identified. The Director is then to transmit these proposed requirements to the State Water Resources Control Board (SWRCB.) The requirements are to be considered by the SWRCB for any permit application, transfer, extension, or change of point of diversion, place of use, or purpose of use, if there is a diversion of water from any waterway where fish reside.

This code supposedly justifies the initiation of the study plan for streamflow requirements in the Scott and Shasta. One glaring problem with this is that the Scott and the Shasta Rivers are already considered “fully appropriated” under the State of CA SWRCB Order WR 98-08. It is difficult to argue that the CA DFG must make recommendations to the State Water Board on flows to be considered in the application for new water rights when there can be no new water rights.

According to the presentation by Normandeau, the problem identification has already been accomplished. It is described as” limiting factors” for “declining” Coho salmon including: water temperature; groundwater extraction or interception of springs; loss of flood plain connectivity; altered flow regime; Lack of riparian vegetation; fish passage barriers; nutrient loading; recruitment of spawning gravels; siltation of gravels and low dissolved oxygen. Presumably, all of these can be solved if the fish just had more flows. Lots of blanket assumptions there. As the DFG invitation and news release explains “The studies will allow DFG to recommend streamflows that protect fish while minimizing impacts on water diversions to best serve all stakeholders.”

Woa there! (1) This implies that there will be an impact on diversions of adjudicated water rights. (2) This implies that water use will be reallocated to best serve all “stakeholders,” regardless of whether they have a property right in use of the water. (And I thought property ownership was the right to exclusive use, enjoy and dispose of property. Apparently, individual ownership rights have now been replaced by the will of “stakeholders.”)

Because we were settled during the CA Gold Rush, the majority of water rights in the Scott and Shasta were acquired before 1900 – either by patent of riparian land or by “appropriation” (diversion and beneficial use.) Siskiyou County still has historic recordings of these rights in its “Water Books.”

It was not until 1911 that the CA Legislature declared that "all water or use of water within the state of California is the property of the people of the state of California." A series of Court challenges clarified that this was to apply only to "surplus" waters existing as of that date which had not yet been appropriated. It was not until 1914 that the California Water Commissions Act to regulate "surplus waters" became law. This required revocable permits for all new appropriations of surface water but did not affect existing rights.

It is hard to argue now that these pre-1914 rights are subject to some sort of “public trust” interest to “best serve all stakeholders” when these privately owned surface water rights predate any ownership claim by the People of the State.

It is also interesting to note that the DFG actually applied for instream flow rights for fish when Scott River water rights were being adjudicated. They were denied. Traditionally, “appropriative” water rights require that the owner actually take physical control of water and put it to continuous beneficial use. Riparian rights require that the parcel is contiguous with the watercourse and the CA DFG owns no land on the Scott River.

Curt Thalken of Normandeau indicated that stakeholder interests would engage in “negotiation” to resolve issues and determine flow strategies. Article 1 of the California Constitution declares acquiring, possessing, and protecting property as an “inalienable right.” Why is a State agency pressuring property owners to negotiate their exclusive property rights with special interests? Why isn’t the agency respecting, protecting and defending individual property and due process rights?

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