Adjudicated Water Users Face Difficult Questions
Adjudicated water users in Siskiyou County are facing difficult questions in trying to decide whether or not to participate in the Scott and Shasta Valley ITP Programs.
After the state listed the Coho Salmon, the CDFG convened the Shasta-Scott Recovery Team (SSRT) in late 2002. The SSRT advised the CDFG that it needed to work “with” the communities of the Scott and Shasta watersheds to develop a programmatic permitting process that would allow agricultural diverter to continue routine ranching and farming activities and “be in compliance with the Fish and Game Code and the CESA. The primary objective was to provide agricultural water users a simple and cost-effective means to obtain “necessary” permits and continue viable agricultural operations.
CDFG knew that they would not be able to handle the program on an individual basis and so an agreement was reached with the respective Resource Conservation Districts. Beginning in 2005, “outreach” was done to notify diverters that they could participate in the Program after they were established, by signing a “letter of intent.” These letters “allowed” for agricultural activities to continue while the Program was developed.
In the fall of 2008, the draft Program was presented for public comment. However, the document introduced a new layer of regulations, guidelines, restrictions and responsibilities that threaten the viability of the very agricultural operations it was designed to protect. Yes, an Incidental Take Permit (ITP) is designed to protect the landowner from take. Additionally, the CDFG introduced a new interpretation in the application of the 1602 permit, by requiring a permit in order to operate an agricultural diversion. Traditionally, 1602 permits were required for any disruption of the bed, bank or channel of a waterway and/or “substantial ” diversion of flow. The word substantial is crucial in understanding the “new” interpretation by CDFG. CDFG has publicly stated that one diversion is not likely to cause “substantial” change in flow, however, cumulatively, all the diversions in the system could. Therefore, they needed a Program that enrolled all diverters in order to try to gain control over adjudicated water rights that are currently managed by the Department of Water Resources (DWR) through court decree.
Many of the diverters in both watersheds have installed fish screens, measured headgates, fish by-pass structures and rock weirs, all measures to minimize and/or alleviate the potential of take. Many of these structures were installed by the CDFG for the purpose of protecting the salmon and eliminating take. So, now the questions begin…..
First, are diverters that have been proactive and installed fish friendly structures willing to sign up for a program of unknown cost that presents real threats to private property rights and adjudicated water rights?
Second, can the CDFG legally require a landowner to get a permit when that landowner has already implemented the necessary mitigation measures to avoid take. Especially when those mitigation measures were approved and installed by the CDFG.
Third, can the CDFG legally require a landowner to get a permit for an activity that is legal and decreed by a court.
Fourth, how many landowners are going to be tempted to call it quits?
The agricultural producers in both the Scott and Shasta Valleys have endured compromise after compromise and at some point, a line is drawn. We’ve seen an increase in water fees, the implementation of two TMDL’s, the Klamath TMDL is soon to follow. The California Air Resources Board is implementing detrimental diesel regulations. The Environmental Protection Agency is developing new regulations for spraying. The Williamson Act is continually on the chopping block. Production costs have long since passed reasonableness compared to product market value. At what point does the agricultural community say enough is enough?