Instream Flows Policy
MAINTAINING INSTREAM FLOWS IN NORTHERN CALIFORNIA COASTAL STREAMS
FREQUENTLY ASKED QUESTIONS
These FAQs will be updated periodically. The last update was on April 17, 2008. Specific questions may be directed to Division of Water Rights staff via email at AB2121Policy@waterboards.ca.gov or via telephone at (916) 341-5342.
- Why is the State Water Board developing a policy for maintaining instream flows?
- How do I make my questions and concerns regarding the draft policy known to the State Water Board?
- What is in the draft policy?
- Does the draft policy apply to the entire state of California?
- What rivers are included in the draft policy?
- Will all water rights be affected by the draft policy?
- What water right actions are affected by the draft policy?
- Does the draft policy affect existing rights?
- What potential impact would the draft policy have on pending applications?
- What is the significance of the January 1, 2008 cutoff date for water availability analyses? Will applicants who did not turn in an analysis prior to the January 1 date still have their applications processed?
- How will the draft policy affect applications for existing onstream dams?
- A passive bypass system, or automated computer-controlled bypass system, is constructed that conforms to the requirements contained in the draft policy
- A passive bypass system, or automated computer-controlled bypass system, is constructed that conforms to the requirements contained in the draft policy
- What does "protectiveness" mean?
- Is it accurate that the draft policy would significantly reduce the amount of water a landowner could divert, if any water could be diverted at all, compared to diversions under the 2002 DFG-NMFS Draft Guidelines?
- Is the draft policy more restrictive than the 2002 DFG-NMFS Draft Guidelines?
- Why does the draft policy have a minimum bypass flow criteria? How was the minimum bypass flow criteria developed?
- Why was the minimum bypass flow equation changed on March 14, 2008? How does this affect the amount of water that could be diverted?
- Why does the draft policy have a maximum cumulative diversion criterion? How was the maximum cumulative diversion criterion developed?
- Is it true that a maximum rate of diversion might not be required for some onstream reservoirs?
- What is the upper limit of anadromy, and how is it used in the draft policy?
- Can the draft policy's criteria be modified?
- What is the watershed approach?
- Are previous hydrologic analyses available to the public?
- Does the policy change approval requirements for all pending water rights and diversion permit applications? If not, does the policy make distinctions? Will any new documentation demands be placed on applicants affected by the policy?
- Does the policy apply equally to seasonal and perennial streams and those who divert from them?
- What evidence is the State Water Board using to demonstrate that salmonids have historically inhabited specific streams - year round or seasonal waterways - thereby making them subject to the policy?
- When the policy is fully implemented, how much spawning habitat does the State Water Board anticipate will be reclaimed? And, what is the anticipated impact on fish populations?
- Has the State Water Board analyzed the economic implications of the policy on agriculture and the North Coast economy? If so, what has the State Water Board learned?
- Why did I receive a Notice of Availability and do I need to respond?
- When were written comments due?
- What are the next steps in the policy development process?
- Where can I get additional information regarding the draft policy?
Assembly Bill 2121 (stats. 2004, ch.943, § 3), added Water Code section 1259.4 which requires the State Water Board to adopt principles and guidelines for maintaining instream flows in northern California coastal streams as part of state policy for water quality control, for the purposes of water right administration. The State Water Board released a draft policy on December 28, 2007, with modifications dated January 7, 2008 and March 14, 2008. Once adopted, the policy will implement Water Code section 1259.4.
If you have questions on the draft policy, you may contact Division of Water Rights staff via email or via telephone at (916) 341-5342. If you have comments on the draft policy, please provide them in writing to the State Water Board before the end of the public comment period, which ends at noon on May 1, 2008. All comment letters will be posted on the State Water Board's website. State Water Board staff will review and consider the comments received, and will prepare a response to comments document. Staff may make revisions to the draft policy based on the review of the written comments. Any revised documents and the State Water Board's responses to comments will be prepared and circulated with the State Water Board agenda package for the State Water Board meeting at which the adoption of the draft policy will be considered. Individuals will be provided the opportunity to contribute oral comments during the State Water Board adoption meeting.
The California State Legislature determined that the adoption of management objectives is necessary for the protection of fishery resources. The Legislature also noted that delays in pending water right applications produces regulatory uncertainty for the water user community and the conservation and fishing communities. The draft policy is intended to address these issues by proposing a scientifically based method by which pending water right applications can be reviewed and processed.
The draft 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. The draft policy establishes principles and guidelines for maintaining instream flows for the protection of fishery resources. It does not specify the terms and conditions that will be incorporated into water right permits, licenses, and registrations. It prescribes protective measures regarding the season of diversion, minimum bypass flow, and maximum cumulative diversion. The draft policy allows for completion of site specific studies to evaluate whether alternative protective criteria could be applied. The draft policy also limits construction of new onstream dams and contains measures to ensure that approval of new onstream dams does not adversely affect instream flows needed for fishery resources. The draft policy provides for a watershed-based approach to evaluate the effects of multiple diversions on instream flows within a watershed as an alternative to evaluating water diversion projects on an individual basis. Enforcement requirements contained in the draft policy include a framework for compliance assurance, prioritization of enforcement cases, and descriptions of enforcement actions.
The draft 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. The draft policy establishes principles and guidelines for maintaining instream flows for the protection of fishery resources. It does not specify the terms and conditions that will be incorporated into water right permits, licenses, and registrations. It prescribes protective measures regarding the season of diversion, minimum bypass flow, and maximum cumulative diversion. The draft policy allows for completion of site specific studies to evaluate whether alternative protective criteria could be applied. The draft policy also limits construction of new onstream dams and contains measures to ensure that approval of new onstream dams does not adversely affect instream flows needed for fishery resources. The draft policy provides for a watershed-based approach to evaluate the effects of multiple diversions on instream flows within a watershed as an alternative to evaluating water diversion projects on an individual basis. Enforcement requirements contained in the draft policy include a framework for compliance assurance, prioritization of enforcement cases, and descriptions of enforcement actions.
No, the geographic area covered by the draft policy includes Marin, Sonoma, and portions of Napa, Mendocino, and Humboldt counties. Figure 1 (of the draft policy document) outlines the geographic area affected by the draft policy.
The draft policy applies to water diversions from all streams and tributaries discharging to the Pacific Ocean from the mouth of the Mattole River south to San Francisco and all streams and tributaries discharging to northern San Pablo Bay. The list of streams within the policy area is available in Appendix 3 of the draft policy document. Certain provisions of the draft policy do not apply to the mainstem of the Russian River below Lake Mendocino or to Dry Creek below Lake Sonoma. The State Water Board has already established flow objectives for these streams in Decisions 1030 and 1610.
Most provisions of the draft policy apply to applications to appropriate water, small domestic use and livestock stockpond registrations, and water right petitions. The enforcement provisions are universal in their applicability.
The draft policy applies to applications to appropriate water, small domestic use and livestock stockpond registrations, and water right petitions.
Those who have existing legal water right permits or licenses are not affected by the draft policy unless they seek to change the conditions of their water right permits or licenses. If a permit or license holder seeks to change aspects of the permitted project, some provisions of the draft policy could apply.
Under the draft policy, petitions filed on existing permits and licenses would be reviewed to determine whether the proposed change may reduce instream flows.
The draft policy proposes that petitions that do not cause a reduction in instream flows do not need to comply with the diversion season, minimum bypass flow, or maximum cumulative diversion requirements; however, if the petition involves moving or constructing an onstream dam, the onstream dam provisions would apply.
Petitions resulting in decreased flow in a stream reach would be evaluated for adverse effects to fish and wildlife using the assessment methods proposed in the draft policy. Exceptions would be considered for petitions intended to improve conditions for fish and wildlife.
Under the draft policy, petitions filed on existing permits and licenses would be reviewed to determine whether the proposed change may reduce instream flows.
The draft policy proposes that petitions that do not cause a reduction in instream flows do not need to comply with the diversion season, minimum bypass flow, or maximum cumulative diversion requirements; however, if the petition involves moving or constructing an onstream dam, the onstream dam provisions would apply.
Petitions resulting in decreased flow in a stream reach would be evaluated for adverse effects to fish and wildlife using the assessment methods proposed in the draft policy. Exceptions would be considered for petitions intended to improve conditions for fish and wildlife.
The effect of the draft policy on pending water right applications (those filed before January 1, 2008) varies, depending on how far along the project is in the application review process. As proposed by the draft policy, if the applicant has submitted an analysis of water availability and cumulative flow-related impacts prior to January 1, 2008, and the project is consistent with the recommendations contained in the 2002 Draft Guidelines issued by the Department of Fish and Game (DFG) and National Marine Fisheries Service (NMFS) (2002 DFG-NMFS Draft Guidelines) pertaining to diversion season, onstream dams, minimum bypass flows, protection of the natural hydrograph and avoidance of cumulative impacts, the State Water Board may consider whether water is available for the project using the 2002 DFG-NMFS Draft Guidelines.
Examples of projects that are consistent with the recommendations contained in the DFG-NMFS Draft Guidelines are: (1) direct diversions or diversions to offstream storage that have a cumulative flow impairment index (CFII) of less than 5 percent and (2) onstream dams located on Class III streams that will not dewater a Class II stream and will not result in a cumulative reduction in instantaneous flow of 10 percent or more at a location where fish are present.
If the applicant has submitted a water availability analysis and an analysis of cumulative flow-related impacts prior to January 1, 2008, and the State Water Board determines that the project is not consistent with any of the recommendations contained in the 2002 NMFS-DFG Guidelines, then all of the requirements of the draft policy would apply.
If a water availability analysis and an analysis of cumulative flow-related impacts have not been submitted prior to January 1, 2008, all of the requirements of the draft policy would apply.
If, prior to the adoption of the policy, the State Water Board has circulated for public review a negative declaration, mitigated negative declaration, or environmental impact report, pursuant to the California Environmental Quality Act, the State Water Board would continue processing the application without applying the draft policy\'s regionally protective criteria.
Examples of projects that are consistent with the recommendations contained in the DFG-NMFS Draft Guidelines are: (1) direct diversions or diversions to offstream storage that have a cumulative flow impairment index (CFII) of less than 5 percent and (2) onstream dams located on Class III streams that will not dewater a Class II stream and will not result in a cumulative reduction in instantaneous flow of 10 percent or more at a location where fish are present.
If the applicant has submitted a water availability analysis and an analysis of cumulative flow-related impacts prior to January 1, 2008, and the State Water Board determines that the project is not consistent with any of the recommendations contained in the 2002 NMFS-DFG Guidelines, then all of the requirements of the draft policy would apply.
If a water availability analysis and an analysis of cumulative flow-related impacts have not been submitted prior to January 1, 2008, all of the requirements of the draft policy would apply.
If, prior to the adoption of the policy, the State Water Board has circulated for public review a negative declaration, mitigated negative declaration, or environmental impact report, pursuant to the California Environmental Quality Act, the State Water Board would continue processing the application without applying the draft policy\'s regionally protective criteria.
If the applicant has submitted a water availability analysis and an analysis of cumulative flow-related impacts prior to January 1, 2008, the State Water Board will consider processing the water availability aspects of the application using the 2002 DFG-NMFS Draft Guidelines if the State Water Board determines that the project is consistent with the recommendations contained in the 2002 NMFS-DFG Draft Guidelines pertaining to diversion season, onstream dams, minimum bypass flows, protection of the natural hydrograph and avoidance of cumulative impacts. All other aspects of the draft policy will apply.
For all onstream dams the following requirements must be met:
Other permitting requirements for onstream dams are dependent on the stream classification at the point of diversion. For onstream dams on Class I streams, the State Water Board will not consider approving a water right permit unless the applicant provides documentation acceptable to the State Water Board that the onstream dam was built prior to July 19, 2006, that fish passage facilities are constructed in accordance with requirements provided by DFG in a written certification, and that fish screens are installed in accordance with policy requirements. For onstream dams on Class II streams the State Water Board will not consider approving a water right permit unless the applicant provides documentation acceptable to the State Water Board that the onstream dam was built prior to July 19, 2006. In addition, the Sate Water Board may consider approving a water right permit for a proposed onstream dam on a Class II stream if the dam is located above an existing permitted or licensed reservoir that provides municipal water supply or is under FERC jurisdiction and the existing permitted or licensed reservoir was constructed prior to the adoption of the policy and does not have fish passage facilities and it is not feasible to construct fish passage facilities. The applicant must also prepare and submit a biological assessment demonstrating that the proposed dam will not adversely affect fish between it and the existing permitted or licensed reservoir and develop and implement plans for non-native species eradication, gravel and wood augmentation, and/or riparian habitat replacement.
The draft policy was developed with the primary objective of protecting anadromous salmonid habitat. Protectiveness relates to the question of whether and to what extent water can be diverted from a stream that supports anadromous fish (or that is connected to a stream that does) without negatively impacting the habitat for fish. The draft policy limits the amount of flow that can be diverted through the establishment of policy criteria, with the limits set at levels that will not impact the long-term viability of existing anadromous salmonids. The evaluation of the protectiveness of the draft policy's criteria is provided in the Scientific Basis and Development of Alternatives Protecting Anadromous Salmonids technical support document.
In general, it will depend on the size of the watershed and the existing amount of authorized water diversion occurring in the watershed. At the February 6, 2008 technical staff workshop, the flow-related aspects of the draft policy and the 2002 DFG-NMFS draft guidelines were compared. Four example applications were presented. Two examples showed that the draft policy provided as much or almost as much water as the 2002 DFG-NMFS draft guidelines; one example showed that the draft policy provided 40% less water than the 2002 DFG-NMFS draft guidelines; and one example showed that the draft policy provided 90% less water than the 2002 DFG-NMFS draft guidelines.
These examples illustrate that the draft\'s policy\'s effects on water availability are site specific. This is because the draft policy’s methodology for assessing water availability requires the consideration of site-specific conditions. These include: (1) the drainage area at the point of diversion; (2) the unimpaired flow at the point of diversion; (3) the proximity of fish relative to the point of diversion; and (4) the existing level of impairment resulting from senior diversions in the watershed. In general, more water is available for diversion under the draft policy as compared to the 2002 DFG-NMFS draft guidelines in large watersheds, and less water is available in very small watersheds.
These examples illustrate that the draft\'s policy\'s effects on water availability are site specific. This is because the draft policy’s methodology for assessing water availability requires the consideration of site-specific conditions. These include: (1) the drainage area at the point of diversion; (2) the unimpaired flow at the point of diversion; (3) the proximity of fish relative to the point of diversion; and (4) the existing level of impairment resulting from senior diversions in the watershed. In general, more water is available for diversion under the draft policy as compared to the 2002 DFG-NMFS draft guidelines in large watersheds, and less water is available in very small watersheds.
Certain requirements are more restrictive, but others are less restrictive while still protecting salmonids. The draft policy contains criteria that were scientifically evaluated and found to be protective of salmonid habitat. Biological flow needs were derived from recent field studies and a literature review of flow needs for passage, spawning, incubation, winter rearing, and outmigration for salmon and steelhead, and for channel and riparian maintenance.
The draft policy contains a diversion season that is less restrictive than the DFG-NMFS draft guidelines, but is still protective of salmonids. The draft policy's minimum bypass flow criterion is more restrictive for some water diverters and is protective of salmonid habitat in small watersheds. The minimum bypass flow criterion contained in the DFG-NMFS draft guidelines is not protective of salmonid habitat in small watersheds. The draft policy's maximum cumulative diversion criterion is one of the recommendations of the DFG-NMFS draft guidelines. The draft policy's onstream dam criteria are less restrictive on Class 2 and 3 streams than the DFG-NMFS draft guidelines. The draft policy allows existing dams to remain onstream if certain conditions are met and mitigation is implemented. The DFG-NMFS draft guidelines do not allow onstream dams on Class 1 and 2 streams and will only allow onstream reservoirs on class 3 streams under special circumstances.
The draft policy contains a diversion season that is less restrictive than the DFG-NMFS draft guidelines, but is still protective of salmonids. The draft policy's minimum bypass flow criterion is more restrictive for some water diverters and is protective of salmonid habitat in small watersheds. The minimum bypass flow criterion contained in the DFG-NMFS draft guidelines is not protective of salmonid habitat in small watersheds. The draft policy's maximum cumulative diversion criterion is one of the recommendations of the DFG-NMFS draft guidelines. The draft policy's onstream dam criteria are less restrictive on Class 2 and 3 streams than the DFG-NMFS draft guidelines. The draft policy allows existing dams to remain onstream if certain conditions are met and mitigation is implemented. The DFG-NMFS draft guidelines do not allow onstream dams on Class 1 and 2 streams and will only allow onstream reservoirs on class 3 streams under special circumstances.
The minimum bypass flow is the minimum instantaneous instream flow rate that is adequate for fish spawning and passage. In terms of water diversion, it is the minimum instantaneous flow rate of water that must be moving past the point of diversion before water may be diverted. A minimum bypass flow requirement prevents water diversions during periods when stream flows are at or below the flows needed for spawning and passage.
The draft policy’s minimum bypass flow criteria was developed utilizing basin size (drainage area) and hydrology (mean annual flow), focusing on stream flows needed for protecting spawning habitat. Data on instream flows needed for steelhead spawning were obtained from a study by C. H. Swift (1976) and from 13 study sites within the policy area. Both data sets represented the lowest flow at which maximum spawning habitat availability occurred for steelhead. The data sets were used to develop an equation for the minimum bypass flow that is a function of drainage area. This equation was statistically developed to envelop the majority of the flows need for spawning. This approach provided a minimum bypass flow criteria that is protective on a policy-area wide basis. This equation was shown to provide protective instream flows for upstream passage as well. The details of the development of the minimum bypass flow criteria are provided in Appendix E of the Scientific Basis and Development of Alternatives Protecting Anadromous Salmonids technical support document.
The minimum bypass flow for watershed drainage areas less than or equal to 295 square miles is:
QMBF= 9.4 Qm (DA)-0.48
The minimum bypass flow for watershed drainage areas greater than 295 square miles is:
QMBF= 0.6 Qm
Where:
QMBF= minimum bypass flow in cubic feet per second;
Qm = mean annual unimpaired flow in cubic feet per second;
DA = watershed drainage area in square miles. When using this equation at the point of diversion, if the upper limit of anadromy is downstream of the point of diversion, the drainage area at the upper limit of anadromy may be used.
The draft policy’s minimum bypass flow criteria was developed utilizing basin size (drainage area) and hydrology (mean annual flow), focusing on stream flows needed for protecting spawning habitat. Data on instream flows needed for steelhead spawning were obtained from a study by C. H. Swift (1976) and from 13 study sites within the policy area. Both data sets represented the lowest flow at which maximum spawning habitat availability occurred for steelhead. The data sets were used to develop an equation for the minimum bypass flow that is a function of drainage area. This equation was statistically developed to envelop the majority of the flows need for spawning. This approach provided a minimum bypass flow criteria that is protective on a policy-area wide basis. This equation was shown to provide protective instream flows for upstream passage as well. The details of the development of the minimum bypass flow criteria are provided in Appendix E of the Scientific Basis and Development of Alternatives Protecting Anadromous Salmonids technical support document.
The minimum bypass flow for watershed drainage areas less than or equal to 295 square miles is:
QMBF= 9.4 Qm (DA)-0.48
The minimum bypass flow for watershed drainage areas greater than 295 square miles is:
QMBF= 0.6 Qm
Where:
QMBF= minimum bypass flow in cubic feet per second;
Qm = mean annual unimpaired flow in cubic feet per second;
DA = watershed drainage area in square miles. When using this equation at the point of diversion, if the upper limit of anadromy is downstream of the point of diversion, the drainage area at the upper limit of anadromy may be used.
The minimum bypass flow was modified because errors were found in the data used to develop the minimum bypass flow equation. The watershed areas at two of the 13 study sites had not been adjusted for differences between the location at which data was gathered and the location of the stream flow gauge. The correction of these errors resulted in a small change to the minimum bypass flow equation. Some, but not all, diverters may receive less water under the revised minimum bypass flow equation. Application of the revised minimum bypass flow equation to the example projects presented at the February 6, 2008 technical staff workshop resulted in changes to the amount of water that could be diverted that ranged from 0% to 6.3%.
The maximum cumulative diversion criterion allows for some water diversion to occur while still preserving the downstream natural flow variability needed for protection of fishery resources. The sum of the rates of diversion for diverters within a watershed cannot exceed the maximum cumulative diversion criterion. The draft policy proposes a maximum cumulative diversion criterion equal to five percent of the 1.5-year instantaneous peak flow.
Adequate magnitude and variability in peak stream flows are needed to meet the habitat needs of anadromous salmonids, including maintaining steam channel geometry, vegetative structure and variability, gravel and wood movement, and other channel features. These peak stream flows are called channel maintenance flows. The bankfull flow is the flow at which channel maintenance is the most effective. The 1.5 year return peak flow is a hydrologic metric that can be used to estimate bankfull flow and effective channel maintenance flows. The 1.5-year instantaneous peak flow is the annual maximum instantaneous peak stream flow that is equaled or exceeded, on average over the long term, once every one and a half years. The draft policy contains a maximum cumulative diversion criterion equal to five percent of the 1.5-year instantaneous peak flow. This is also one of the criteria recommended by the 2002 DFG-NMFS Draft Guidelines. The Scientific Basis and Development of Alternatives Protecting Anadromous Salmonids technical support document showed that limiting the maximum cumulative diversion to five percent of the 1.5 year instantaneous peak flow would result in a relatively small change to channel geometry.
Adequate magnitude and variability in peak stream flows are needed to meet the habitat needs of anadromous salmonids, including maintaining steam channel geometry, vegetative structure and variability, gravel and wood movement, and other channel features. These peak stream flows are called channel maintenance flows. The bankfull flow is the flow at which channel maintenance is the most effective. The 1.5 year return peak flow is a hydrologic metric that can be used to estimate bankfull flow and effective channel maintenance flows. The 1.5-year instantaneous peak flow is the annual maximum instantaneous peak stream flow that is equaled or exceeded, on average over the long term, once every one and a half years. The draft policy contains a maximum cumulative diversion criterion equal to five percent of the 1.5-year instantaneous peak flow. This is also one of the criteria recommended by the 2002 DFG-NMFS Draft Guidelines. The Scientific Basis and Development of Alternatives Protecting Anadromous Salmonids technical support document showed that limiting the maximum cumulative diversion to five percent of the 1.5 year instantaneous peak flow would result in a relatively small change to channel geometry.
Yes, it is true that a maximum rate of diversion might not be required for some onstream reservoirs.
Adequate magnitude and variability in peak stream flows are needed to meet the habitat needs of anadromous salmonids, including maintaining stream channel geometry, vegetative structure and variability, gravel and wood movement, and other channel features. These peak stream flows are called channel maintenance flows. The maximum cumulative diversion criteria provides protection of channel maintenance flows. The draft policy proposes that the maximum cumulative diversion shall not cause more than 5% reduction in the 1.5 year flood flow. The maximum cumulative diversion criteria is a limitation on the sum of all of the rates of diversion of water in a watershed.
Direct diversions and diversions to offstream storage already have rate of diversion terms placed in water right permits. Under the draft policy, a maximum rate of diversion will be required for most onstream dams. However there may be some onstream dams for which a maximum rate of diversion might not be required. These may be small reservoirs with large upstream watersheds that contain a small volume of existing senior water diversions. During storm events, the large upstream watershed contributes a high rate of flow at the project’s point of diversion, which allows the reservoir to fill quickly early in the diversion season. The reservoir will be full and spilling when subsequent large storm events occur later in the season. Natural instream flow variability would be maintained because these high flows would not be diverted. Operating the reservoir as a fill and spill might not result in more than a 5% change to the 1.5 year flood flow. If the project does not cause more than a 5% change to the 1.5 year flood flow, a maximum rate of diversion that controls inflow to the onstream reservoir would not be needed.
The procedures outlined in Appendix 1 of the draft policy can be used to evaluate whether a maximum rate of diversion is required for an onstream dam. A 1.5 year flood flow is calculated for two sets of stream flow data: (1) daily unimpaired flow; and (2) daily impaired flow, taking into account existing senior diversions and the proposed project. For this analysis, the onstream reservoir can be assumed to operate as a fill and spill without a maximum rate of diversion. If the difference between the value calculated in (1) and the value calculated in (2) is 5% or less, the proposed reservoir can be operated as a fill and spill, and the inflow to the reservoir would not need to be controlled by a maximum rate of diversion. The project would only require a minimum bypass flow. Sections A.5.2.3 and A.5.11.5 in Appendix 1 of the draft policy outline these procedures in more detail.
Adequate magnitude and variability in peak stream flows are needed to meet the habitat needs of anadromous salmonids, including maintaining stream channel geometry, vegetative structure and variability, gravel and wood movement, and other channel features. These peak stream flows are called channel maintenance flows. The maximum cumulative diversion criteria provides protection of channel maintenance flows. The draft policy proposes that the maximum cumulative diversion shall not cause more than 5% reduction in the 1.5 year flood flow. The maximum cumulative diversion criteria is a limitation on the sum of all of the rates of diversion of water in a watershed.
Direct diversions and diversions to offstream storage already have rate of diversion terms placed in water right permits. Under the draft policy, a maximum rate of diversion will be required for most onstream dams. However there may be some onstream dams for which a maximum rate of diversion might not be required. These may be small reservoirs with large upstream watersheds that contain a small volume of existing senior water diversions. During storm events, the large upstream watershed contributes a high rate of flow at the project’s point of diversion, which allows the reservoir to fill quickly early in the diversion season. The reservoir will be full and spilling when subsequent large storm events occur later in the season. Natural instream flow variability would be maintained because these high flows would not be diverted. Operating the reservoir as a fill and spill might not result in more than a 5% change to the 1.5 year flood flow. If the project does not cause more than a 5% change to the 1.5 year flood flow, a maximum rate of diversion that controls inflow to the onstream reservoir would not be needed.
The procedures outlined in Appendix 1 of the draft policy can be used to evaluate whether a maximum rate of diversion is required for an onstream dam. A 1.5 year flood flow is calculated for two sets of stream flow data: (1) daily unimpaired flow; and (2) daily impaired flow, taking into account existing senior diversions and the proposed project. For this analysis, the onstream reservoir can be assumed to operate as a fill and spill without a maximum rate of diversion. If the difference between the value calculated in (1) and the value calculated in (2) is 5% or less, the proposed reservoir can be operated as a fill and spill, and the inflow to the reservoir would not need to be controlled by a maximum rate of diversion. The project would only require a minimum bypass flow. Sections A.5.2.3 and A.5.11.5 in Appendix 1 of the draft policy outline these procedures in more detail.
Answer
The upper limit of anadromy is the upstream end of the range of anadromous fish that currently are, or have been historically, present year-round or seasonally, whichever extends the farthest upstream. The draft policy's minimum bypass flow criteria allows the use of the watershed drainage area at the upper limit of anadromy for calculating the minimum bypass flow at points of diversion that are above the upper limit of anadromy. The location of the upper limit of anadromy is also considered when selecting points of interest to evaluate the proposed project's effect on fishery resources.
Yes, site specific studies can be performed to provide information supporting the use of site specific criteria rather than the draft policy's region-wide criteria. In addition, the draft policy contains procedures for individuals to request the State Water Board consider granting case-by-case exceptions to specific policy provisions.
The watershed approach provisions are contained in Section 12 of the draft policy. These provisions allow groups of diverters to enter into formal agreements, subject to approval by the State Water Board, for the management of water resources in a watershed. Water right applicants that choose to form a watershed group shall submit a project charter and technical documents to the State Water Board for review and approval. The technical documents shall include, but are not limited to, instream flow studies, water availability information, information describing and evaluating the significance of potential impacts of the proposed projects, descriptions of proposed mitigation measures, as well as operation, monitoring and maintenance plans. The State Water Board shall review and approve the technical documents before issuing water right permits or approving petitions.
Analyses included in State Water Board files are available for public review. Appointments to view water right files can be scheduled with the Division of Water Rights Records Unit at (916) 341-5421.
The draft policy does not change findings that the State Water Board is statutorily required to make when considering whether to approve a water right application or petition. The draft policy does, however, contain 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. To a certain extent, such an evaluation is already required by the State Water Board when considering water right applications. Water Code section 1259.4 authorizes the State Water Board to consider the 2002 NMFS-DFG Draft Guidelines in administering pending water rights in the policy area until the State Water Board adopts a policy. The 2002 NMFS-DFG Draft Guidelines are not requirements, but are scientific recommendations that State Water Board staff can rely upon to assess the impacts of the proposed project on fishery resources.
The analysis that would be required under the draft policy would utilize any analysis that had already been conducted using the recommendations from the 2002 NMFS-DFG Draft Guidelines. The water right applicant would need to do more analysis under the draft policy because the 2002 NMFS-DFG Draft Guidelines do not contain the last analysis steps needed to assess whether proposed projects would cause impacts to fishery resources. The draft policy contains many of the same elements recommended by the 2002 NMFS-DFG Draft Guidelines, some of which are less restrictive than those in the 2002 NMFS-DFG Draft Guidelines, others that are more restrictive. The draft policy articulates the analytical steps needed to show water availability. A water availability analysis is required regardless of whether the State Water Board adopts the proposed policy.
Policy Criteria
The draft policy contains a diversion season that is less restrictive than that of 2002 NMFS-DFG Draft Guidelines, but is still protective of salmonids. The draft policy's minimum bypass flow criterion is more restrictive than that of the 2002 NMFS-DFG Draft Guidelines for some water diverters. It is protective of salmonid habitat in small watersheds, while the minimum bypass flow criterion contained in the 2002 NMFS-DFG Draft Guidelines is not. The draft policy's maximum cumulative diversion criterion is one of the recommendations of the 2002 NMFS-DFG Draft Guidelines. The draft policy's onstream dam criteria are less restrictive on Class 2 and 3 streams than the 2002 NMFS-DFG Draft Guidelines. The draft policy allows existing dams to remain onstream if certain conditions are met and mitigation is implemented. The 2002 NMFS-DFG Draft Guidelines do not allow onstream dams on Class 1 and 2 streams and will only allow onstream reservoirs on class 3 streams under special circumstances. In addition, the draft policy contains a requirement that the minimum bypass flow and the maximum cumulative diversion be met using bypass structures designed to meet the bypass requirement through the design of the bypass facility rather than through frequent human interaction.
The hydrologic analysis required by the draft policy in some ways is similar to the analysis that would be performed under the 2002 NMFS-DFG Draft Guidelines. The draft policy requires some additional analytical steps that had not been articulated in the 2002 NMFS-DFG Draft Guidelines. In addition, the draft policy contains requirements for mitigation plans for onstream dams, which the 2002 NMFS-DFG Draft Guidelines do not contain. Documentation requirements that are substantially new under the draft policy include reports that document the upper limit of anadromy and reports that document the determination of stream class.
Documentation Required for the Watershed Approach
The draft policy contains watershed approach provisions that allow groups of diverters to enter into formal agreements, subject to approval by the State Water Board, for the management of water resources in a watershed. The 2002 NMFS-DFG Draft Guidelines do not provide this feature. Water right applicants that choose to form a watershed group would submit a project charter and technical documents to the State Water Board for review and approval. The technical documents include, but are not limited to, instream flow studies, water availability information, information describing and evaluating the significance of potential impacts of the proposed projects, descriptions of proposed mitigation measures, as well as operation, monitoring and maintenance plans. The State Water Board reviews and approves the technical documents before issuing water right permits or approving petitions.
The analysis that would be required under the draft policy would utilize any analysis that had already been conducted using the recommendations from the 2002 NMFS-DFG Draft Guidelines. The water right applicant would need to do more analysis under the draft policy because the 2002 NMFS-DFG Draft Guidelines do not contain the last analysis steps needed to assess whether proposed projects would cause impacts to fishery resources. The draft policy contains many of the same elements recommended by the 2002 NMFS-DFG Draft Guidelines, some of which are less restrictive than those in the 2002 NMFS-DFG Draft Guidelines, others that are more restrictive. The draft policy articulates the analytical steps needed to show water availability. A water availability analysis is required regardless of whether the State Water Board adopts the proposed policy.
Policy Criteria
The draft policy contains a diversion season that is less restrictive than that of 2002 NMFS-DFG Draft Guidelines, but is still protective of salmonids. The draft policy's minimum bypass flow criterion is more restrictive than that of the 2002 NMFS-DFG Draft Guidelines for some water diverters. It is protective of salmonid habitat in small watersheds, while the minimum bypass flow criterion contained in the 2002 NMFS-DFG Draft Guidelines is not. The draft policy's maximum cumulative diversion criterion is one of the recommendations of the 2002 NMFS-DFG Draft Guidelines. The draft policy's onstream dam criteria are less restrictive on Class 2 and 3 streams than the 2002 NMFS-DFG Draft Guidelines. The draft policy allows existing dams to remain onstream if certain conditions are met and mitigation is implemented. The 2002 NMFS-DFG Draft Guidelines do not allow onstream dams on Class 1 and 2 streams and will only allow onstream reservoirs on class 3 streams under special circumstances. In addition, the draft policy contains a requirement that the minimum bypass flow and the maximum cumulative diversion be met using bypass structures designed to meet the bypass requirement through the design of the bypass facility rather than through frequent human interaction.
The hydrologic analysis required by the draft policy in some ways is similar to the analysis that would be performed under the 2002 NMFS-DFG Draft Guidelines. The draft policy requires some additional analytical steps that had not been articulated in the 2002 NMFS-DFG Draft Guidelines. In addition, the draft policy contains requirements for mitigation plans for onstream dams, which the 2002 NMFS-DFG Draft Guidelines do not contain. Documentation requirements that are substantially new under the draft policy include reports that document the upper limit of anadromy and reports that document the determination of stream class.
Documentation Required for the Watershed Approach
The draft policy contains watershed approach provisions that allow groups of diverters to enter into formal agreements, subject to approval by the State Water Board, for the management of water resources in a watershed. The 2002 NMFS-DFG Draft Guidelines do not provide this feature. Water right applicants that choose to form a watershed group would submit a project charter and technical documents to the State Water Board for review and approval. The technical documents include, but are not limited to, instream flow studies, water availability information, information describing and evaluating the significance of potential impacts of the proposed projects, descriptions of proposed mitigation measures, as well as operation, monitoring and maintenance plans. The State Water Board reviews and approves the technical documents before issuing water right permits or approving petitions.
The policy applies equally to seasonal and perennial streams and those who divert from them. Fish habitat can exist in seasonal or perennial streams, so the draft policy’s provisions are actually based on whether fish habitat exists in a stream rather than on the type of stream. The requirements are different for fish-bearing streams and non-fish bearing streams. For instance, there are two different forms of the minimum bypass flow equation that can be used. One is for streams that contain salmonids, current or historically, and seasonally or year round; the other is for streams that do not fall in this category. Another example is the onstream dam provisions. These apply to all streams, but the requirements are different depending on the nature of the habitat in a particular stream.
The draft policy's provisions apply to all streams and tributaries regardless of whether salmonids are present or not. As explained above in the response to question 4, however, the draft policy's requirements are different for fish-bearing streams and non-fish bearing streams.
The draft policy provides guidance for determining how far upstream fish have been present on any stream, either currently or historically, and year-round or seasonally. This guidance allows the water right applicant to rely on existing biological studies or surveys, knowledge of stream gradient, presence of impassable barriers to fish migration, or habitat-based stream surveys.
The Legislature has required the State Water Board to adopt principles and guidelines for maintaining instream flows needed for the protection of fishery resources. In response to this mandate, the draft policy was developed to maintain instream flows to protect existing condition for the benefit of fishery resources. It was not developed for the purposes of reclaiming spawning habitat. This would have involved additional provisions that would have affected existing "authorized" dams and diversions that do not currently have terms and conditions that are protective of fishery resources.
The draft policy proposes that the State Water Board conduct monitoring to evaluate how effective the policy is in maintaining instream flows that are protective of anadromous salmonids and their habitat, and whether the policy criteria may need to be modified. Monitoring may consist of monitoring stream hydrology, geomorphology, and anadromous salmonid habitat conditions in selected representative streams in the policy area. Unfortunately, the State Water Board currently does not have the funding to implement this monitoring program.
The draft policy proposes that the State Water Board conduct monitoring to evaluate how effective the policy is in maintaining instream flows that are protective of anadromous salmonids and their habitat, and whether the policy criteria may need to be modified. Monitoring may consist of monitoring stream hydrology, geomorphology, and anadromous salmonid habitat conditions in selected representative streams in the policy area. Unfortunately, the State Water Board currently does not have the funding to implement this monitoring program.
In Appendix E of the Substitute Environmental Document (SED), State Water Board staff estimates that up to approximately 4,000 acres of agricultural land in the policy area could potentially be removed from production as a result of moving existing unauthorized reservoirs offstream. The SED acknowledges that this could have a potentially significant indirect impact on agricultural resources depending on the actions that affected persons could take as a result of the policy. The agricultural lands removed from production are the lands where the dam and reservoirs would be constructed. This does not include agricultural lands removed from production as the result of the loss of water. Staff also estimated the costs associated with complying with the policy and identified potential sources of funding for these costs. This information is provided in the direct cost analysis report attached to the draft policy.
The Notice of Availability advises the public that draft documents are available for a proposed State Water Board policy and announces a public review period during which the public may review the documents and provide written comments. The documents that are available for public review include the draft policy, technical support documents, and an environmental document, all of which are available on the State Water Board’s website. You are not required to respond to the Notice of Availability; but you are welcome to provide written comments on the proposed policy and associated technical and environmental documents.
Written comments on the draft policy and supporting documentation were due before noon on May 1, 2008.
Once the public comment period closes, State Water Board staff will review and consider the comments received. Staff may make revisions to the draft policy based on the review of the written comments. Any revised documents and staff’s response to comments document will be prepared and circulated with the State Water Board agenda package for the State Water Board meeting at which the adoption of the draft policy will be considered. Individuals will be provided the opportunity to contribute oral comments during the State Water Board adoption meeting.
The State Water Board's North Coast Instream Flow Policy website contains postings of documents related to the draft policy and the policy development process. The website also contains a copy of the power point presentation from the Technical Staff Workshop held on February 6, 2008. Interested persons may contact the Division of Water Rights to request a copy of the DVD recording of the Technical Staff Workshop.
Specific questions may be directed to Division of Water Rights staff via email or via telephone at (916) 341-5342.
Specific questions may be directed to Division of Water Rights staff via email or via telephone at (916) 341-5342.
