Court Orders State Water Resources Control Board To Vacate Instream Flow Policy For Northern Coastal Streams

On August 9, 2012, the Alameda County Superior Court issued its Statement of Decision and Judgment in the case of Living Rivers Council v. State Water Resources Control Board (Case No. RG10-543923). The Living Rivers case challenged the adequacy of the California Environmental Quality Act (“CEQA”) review performed by the State Water Resources Control Board (“State Water Board”) in connection with its Policy For Maintaining Instream Flows In Northern California Coastal Streams (“Flow Policy”). The court found: 1) that the State Water Board failed to evaluate and disclose a feasible mitigation measure; and 2) that the State Water Board failed to disclose the limited mitigation measures available to address the indirect environmental impacts of the Flow Policy. Due to these deficiencies in the State Water Board’s CEQA review, the court ordered the State Water Board to vacate its approval of the Flow Policy.

Background
In late 2007, the State Water Board released a draft Flow Policy to meet its statutory requirement to adopt principles and guidelines for maintaining instream flows in northern coastal streams, as part of a state policy for water quality control for the purposes of water right administration. The Flow Policy, as a policy for water quality control, is a regulatory program that is exempt from CEQA’s requirements to prepare either an environmental impact report or a negative declaration. Therefore, compliance with CEQA required the State Water Board to prepare a substitute environmental document (“SED”) for the draft Flow Policy. After distributing the draft Flow Policy and SED and responding to comments on those documents, the State Water Board certified the SED as compliant with CEQA and adopted the Flow Policy on May 4, 2010.

The Flow Policy applies to applications to appropriate water from coastal streams within Marin, Sonoma and portions of Napa, Mendocino, and Humboldt Counties. The Flow Policy prescribes protective measures regarding the season of diversion, minimum bypass flows, and maximum cumulative diversion rates for the protection of fishery resources. The SED found that the Flow Policy could result in potentially significant indirect environmental impacts, including increased groundwater pumping, in response to the Flow Policy’s limitations on stream diversions.

Living Rivers Decision
In evaluating the adequacy of the SED prepared by the State Water Board, the Living Rivers court found that the State Water Board failed to satisfy the substantive provisions of CEQA. The court found that the SED failed to evaluate and disclose a potentially feasible mitigation measure for the anticipated increased use in percolating groundwater resulting from the Flow Policy. In addition, the court found that the SED failed to effectively disclose the State Water Board’s limited ability to monitor and mitigate the impact of the anticipated increase in the use of percolating groundwater. To remedy the identified CEQA inadequacies, the court ordered the State Water Board to vacate its certification of the SED and its approval of the Flow Policy. However, the court noted that the State Water Board retains its regulatory authority to issue water permits with conditions, and therefore, the Board could treat the vacated Flow Policy as a “guideline” for processing water right applications until the CEQA process is completed.

Conclusion
The Living Rivers judgment orders the State Water Board to disclose the implications of its limited regulatory jurisdiction over percolating groundwater. To satisfy the court’s writ of mandate, the State Water Board will need to disclose the scope of its regulatory authority over percolating groundwater and also disclose that the increased groundwater use resulting from the Flow Policy is unlikely to be subject to future CEQA review. The amended SED will likely provide a useful articulation of the State Water Board’s regulatory jurisdiction over percolating groundwater.

For additional information regarding the Flow Policy or the Living Rivers case, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult. Additional information regarding the Flow Policy is also available here.