-- Legal water rights have some protections.

By Liz Bowen

Pioneer Press Assistant Editor, Fort Jones, California

Vol. 33, No. 28

May 24, 2006

YREKA – Four legal issues have been addressed by the attorney for SOSS, the Save Our Shasta and Scott Valley coalition, regarding water flows in the Scott River.
 

The legal comments were in response to a statement made by the California State Water Resources Control Board at its April 19 meeting. An action agenda item at that meeting was to accept or not accept the Scott River TMDL Action Plan. The Board did neither; and after much discussion from the environmental activists with their deceptions, decided to turn the agenda item into a “workshop” for its June 7 meeting.
 

During the last several years, local individuals have worked with the staff of the North Coast Regional Water Quality Control Board to hammer out a plan that adequately addressed the Scott River water quality. TMDL stands for Total Maximum Daily Load of impairments in water quality that the state will allow.
 

The Scott River was listed by the state as “impaired” more than a decade ago regarding too warm of water temperatures and too much sediment. The regional and state water quality boards are under federal Clean Water Act mandates to improve water quality by developing a TMDL Action Plan.
 

While the present Action Plan did not meet the agreement of all land managers, it was generally accepted as a process that was flexible and could begin to be implemented. But instead of adopting the regional board’s plan on April 19, the State Board members discussed how to recommend specific increased “flow options” in the Scott River.

Wrong agency to change water rights

Since the Scott River has no dams and the major flows are from snowmelt, discussing “flow options” means dipping into the state law protected water right adjudications.  
 

SOSS attorney, Daniel O’Hanlon, cited four legalities during the additional comment period that was created because the State Board postponed its adoption of the TMDL Action Plan.
 

The first legal comment is about the State Board’s lack of following its own rules. The agenda item must be dealt with as it was written. O’Hanlon is holding the board’s feet to the fire on this one.
 

Comment two explains why the State Board does not have water rights permitting authority over many of the existing water diversions (irrigation ditches) in Scott Valley.
 

Since the board was not specific in its “flow options” comment, but does raise a red flag for Scott Valley land owners, SOSS reasoned that the State Board may try to reduce water right flows, so that those flows could remain in the river.

“In the Scott Valley, many of the water rights are pre-1914 rights and therefore not subject to the State Board’s permitting jurisdiction,” claims O’Hanlon citing lawsuit cases and the state water code 1200. For these water rights to be changed, the state would need to petition Siskiyou County Superior Court for any amendment or adjustment of such rights.
 

Comment three was in regards to the present Board action. The Board has not publicly noticed that any other action will be taken at its meeting other than adoption or non-adoption of the Scott River TMDL Action Plan. Legally, it can not amend water rights at the June 7 meeting.
 

If the Board does not adopt the plan, then it must be returned to the regional board, which is the North Coast Regional Water Quality Control Board, to make fixes to the plan.
 

In comment four, O’Hanlon said that in recent legal decisions, the State Board was told to allow for flexibility in implementation of Action Plans and avoid constraints on flexibility.
 

Adding regulations that could create a loss of water rights will create constraints in many legal arenas.

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