The State Water Resources Control Board on Tuesday approved an emergency regulation enabling the agency to curtail senior water rights along two key watersheds in Northern California. The order enables the board to establish minimum flow requirements along the Scott and Shasta rivers to protect endangered fish species.
It is the latest in a series of emergency regulations aimed at protecting drinking water, ecosystems and carryover storage for next year during the drought.
But farmers and ranchers in this region of the Klamath Basin worry the order could upend a decades-long effort to unite once-combative parties in restoring sections of the rivers to protect critically endangered salmon species. With the regulation in place, the board will issue curtailment orders for water diverters along the rivers to preserve fall migration runs in September, when Chinook and coho salmon return to annual spawning habitats. The fish suffered record population declines following low flows in 2020 that led to lethally warm water temperatures for young fry.
Wildlife officials believe the curtailments will allow the species to survive, but an extremely wet winter is needed for the fish to actually recover. In May, the California Department of Fish and Wildlife reached out to a few landowners to coordinate voluntary curtailments in a short period of time, but the rapid onset of drought conditions afterward meant much more water would be needed to avoid uninhabitable conditions this fall.
Agricultural groups have urged the board to adopt a more gradual approach that recognizes existing efforts and local leadership while allowing flexibility in meeting minimum flow standards. With time running short for the fall migration, anglers, tribes and environmental groups have called for immediate and expansive curtailments to restore flows as soon as possible.
“I've seen a lot of voluntary actions,” said Felice Pace of the Sierra Club Redwood Chapter during a stakeholder workshop in July on the proposed regulation. “Funding has been given. Funding has been taken. But where's the public benefit? We just don't see it.”
Pace argued the state water board should have seen the environmental crisis coming and not wasted time on voluntary collaborations with agricultural water users.
The Nature Conservancy, on the other hand, advocated for both regulatory and collaborative actions that would prevent irreparable damage to ecosystems.
State officials have been reassuring water rights holders that the regulation is temporary, will not replace existing efforts or serve as a long-term solution, and should minimize economic impacts to farmers. Yet those interest groups, as well as regional board members, have urged the state water board to reexamine the water rights system entirely and seek permanent jurisdiction over the most senior water rights.
California Farm Bureau Senior Counsel Chris Scheuring
“[Pre-1914 rights] have always been characterized as a sacred cow — you can't touch it,” said Central Coast Regional Water Quality Control Board Chairman Jean-Pierre Wolff in a hearing Friday. “But we're getting at a point where we’ve got to rethink some of these old legacy regulations.”
These water rights were in place before California established the state water board in 1914, placing them beyond the board’s authority and in a coveted status among water users.
Recognizing the concerns from agricultural groups and irrigation districts, the state water board delayed its hearing date for the proposed regulation while staff made revisions based on the feedback and added more flexibility for voluntary approaches and local solutions. State and federal agencies also now have the option to reduce the minimum flow amount, if lower flows are shown to adequately protect fisheries. The order also exempts reforestation efforts and allows diversions for minimal livestock watering.
Yet the additions did not go far enough for Justin Fredrickson, an environmental policy analyst for the California Farm Bureau, who worried that voluntary agreements over flows would not be feasible under CDFW’s natural flow targets. The Farm Bureau did recognize the staff’s collaborative and creative efforts in recent months to find workable solutions for farmers.
Farm Bureau Senior Counsel Chris Scheuring also hoped the water board would refrain from using its reasonable use tool, a legal tactic it deployed in a Russian River regulation to override senior water rights, which labeled agriculture as “unreasonable use.”
Ryan Walker, president of the Siskiyou County Farm Bureau, said he appreciated the board’s efforts to continue discussions on minimum flow levels after adopting the regulation. In a comment to the board, Walker said this gives him hope the board and stakeholders can “reach meaningful solutions to the current drought without the acrimony that has, unfortunately, characterized many water disputes in the West.”
In the staff workshop, Walker described CDFW as “a single-directive agency,” with a mission to protect species listed as threatened or endangered. He argued CDFW’s determination of natural flows neglects the state water board’s more nuanced obligation, which is to balance water needs and uses.
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“I'm even willing to agree that it might have some very, very modest advantage to some aquatic wildlife species,” said Walker. “But at what cost for that minor improvement? How many families would have to declare bankruptcy to push cold water refugia down that river by a few hundred feet?”
Farm Bureau lobbied the state water board to take CDFW’s flow metrics as recommendations and to focus instead on “functional flows” over minimum flows.
Walker is seeking a compromise for the upcoming 2022 irrigation season, fearing the current method for determining reductions may harm growers who have already adopted water efficiency practices.
Others involved in the region’s local water policies said the board could upend ongoing efforts to implement the Sustainable Groundwater Management Act.
“You're replacing (groundwater sustainability plans] with more of a raw, brute-force tactic and ignoring the collaborative effort that's been going on here for many years,” said Sari Sommarstrom, a watershed management consultant in the Scott Valley.
While the irrigation season is coming to a close for most farmers, ranchers and dairy farmers feared the regulation would still lead to immediate impacts for their herds.
Theodora Johnson, a local rancher, said shutting the water off now would mean crop failure for the alfalfa she grows as winter feed, forcing her to sell cows.
“That has very long-term implications,” said Johnson. “Everybody has ranch payments and equipment payments and other things they have to do in order to stay in business. What kind of place are we going to be living in if people are going out of business?”
Elisa Noble, who directs the Scott Valley and Shasta Valley Watermaster District, pushed for financial compensation for the landowners who voluntarily reduce their diversions. She argued this would maintain economic viability and encourage more to participate.
Water Board staff have been receptive to such ideas.
“Nothing in the regulations is set in stone,” said Erik Ekdahl, a state water board deputy director. “We're open to other approaches, including voluntary approaches, voluntary engagement, locally derived actions and efforts that could be as productive or more, in terms of accomplishing the goals that we're setting out to do.”
CDFW Program Manager Joe Croteau responded to concerns over the “extreme burden” the regulation could place on legally irrigated agriculture.
“We've been dealing with this since I've moved here. It's been an ongoing struggle,” said Croteau. “I feel like our staff has made attempts to do some planning, get grants and do the best we can. And if not this year, when?”
The regulation will take effect Aug. 30, with curtailment orders soon to follow.
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