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Fort Jones, California May 24, 3006 Vol. 33, No. 28
Page A1, column 1
SOSS challenges state board
-- Legal water rights have some protections.
By Liz Bowen, Pioneer Press Assistant Editor, Fort Jones, California 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
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
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
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
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
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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