Using the Clean Water Act to Restore Flows: Fay Creek

An exciting recent (2011) example of the power of 401 water quality certification to address flows involves Fay Creek, a tributary to the South Fork of Kern River in California. The courts found the U.S. Forest Service acted arbitrarily and capriciously when they re-issued a Special Use Permit (SUP) to operate a diversion and small dam on Forest Service lands without seeking 401 water quality certification from the state. The SUP had allowed a rancher to take 100 percent of Fay Creek’s flow.

According to the local group who challenged the SUP – Sequoia ForestKeeper – the lack of in-stream flows have clearly harmed aquatic and riparian habitat:

“The increased diversions have caused lower stream flows below the diversion dam during the rainy season, resulting in higher water temperatures and reduced dissolved oxygen levels, both of which are detrimental to trout. Stream flows below the diversion dam during the critical summer period have been reduced to levels incapable of sustaining the entire stream habitat. Local residents have noticed dry stream beds where trout once thrived and willow and cottonwood trees dying along the stream course. The only hope for recovery of downstream sections of Fay Creek, where populations of fish and other aquatic organisms have been killed and riparian habitat has been damaged, is if water is permitted to flow again.”

Again according to the local group (and inquires with legal experts on the topic appear to support this claim), this is the first time a Court has held that the Forest Service must seek 401 water quality certification for a SUP before it can allow a water diversion from an existing dam. The 401 water quality certification may make a huge difference in the future of Fay Creek, because California requires at least some flow in the creek at all times to protect downstream resources, such as fish and riparian vegetation.

This decision is particularly exciting because it may push the boundaries of 401 water quality certification “triggers.” Learn more about 401 water quality certification.