AB 2121
Assembly Bill 2121 found its genisis through the collaborative work of Trout Unlimited and the Peregrine Chapter of the Audubon society who jointly filed a petition with the State Water Resources Control Board, SWRCB, claiming insufficient stream flows are harming aquatic species due to water diversions. Paralling this action the Governor, Arnold Swartzeneger signed into law AB2121 on September 4, 2004. The Division of Water Rights was experiencing hundreds of back-logged applications for water diversions and many protests against these applications for water diversion.
AB2121 requires that the SWRCB prepare a functional equivalent of an EIR document to establish principals and guidelines for filing a water rights application.
Because the SWRCB must find that water is available prior to issuing a water right permit, the proposed Policy includes provisions related to a 'water availability analysis' for the Policy Area.
From 1997 to 2002, the Water Board, the Department of Fish and Game and the National Marine Fisheries Service debated with Trout Unlimited about the necessary flow requirements, and other biological and fish-related conditions that are appropriate for inclusion in water permits. In June 2002, the State and Federal fish agencies released their updated "Guidelines for Maintaining Instream Flows to Protect Coastal Streams."
These joint guidelines represent the first time state and federal fish agencies presented to the SWRCB specific fish measures in guideline format that are the minimum necessary conditions to preserve a level of stream flow that ensures that anadromous salmonids will not be adversely impacted by diversions. However, to date, these joint guidelines have not been adopted by the SWRCB. In fact, the Water Board has been calling for guidelines from other stakeholders for establishing minimum flows. Fish biologist, Bill Trush, hired by Trout Unlimited has proposed a Riffle Thalwag Crest Methodology for Minimum Flows. The Water Board is proposing to establish minimum flows somewhere between the Joint Guidelines and what the SWRCB's experts recommend.
The SWRCB's mission is to preserve, enhance and restore the quality of California's water resources and ensure their proper allocation and efficient use for the benefit of present and future generations. Through Assembly Bill 2121 the Legislature requires the SWRCB to adopt principles and guidelines for maintaining instream flows in northern California coastal streams for the purpose of water right administration. Currently, in the five counties that AB2121 affects there are over 276 pending water right applications along with 1,777 illegal water diversion and numerous protests of water right applications. This has created a tremendous backlog and enforcement problem for the SWRCB. In considering the adoption of a policy that includes these principals and guidelines, the State Water Board must balance instream flow needs, such as fisheries, aquatic habitat, recreation and navigation, against the needs of other uses, including water diversion for agricultural uses.
The SWRCB released the draft policy, pursuant to the requirements of AB2121, on December 28, 2007. The draft policy would apply to applications to appropriate water, small domestic use and livestock stockpond registrations and water right petitions. The geographic scope of the draft policy encompasses coastal streams from the Mattole River to San Francisco and coastal streams entering San Pablo Bay and extends to five Counties: Marin, Sonoma, and portions of Napa, Mendocino and Humboldt counties.
The current Draft Policies and Guidelines seem to favor water users and offers little protection of the Public Trust Doctrine that ensures that the public can fish, swim and receate throughout our rivers and streams. Accordingly, ICARE secured two grants to form a North Coast Stream Flow Coalition to begin a grassroots campaign to restore rivers to their mighty force that perserves this natural heritage for future generations.
State Water Resources Control Board information about AB2121
California Water Codes, Section 1259.2 & 1259.4
Guidelines for maintaining instream flows to protect fishereries....CDFG, MNFS 2002
Could not find original paper but the Riffle Thalwag Reference is discussed here: AB 2121 Joint Recommendations QWB and QS – Definitions and Methods
