Fish and Game must rethink its water use; agricultural, environmental interests wait
Dylan Darling
Redding.com
04/30/2011
Siskiyou County rancher Mark Baird has a challenge for the state Department of Fish and Game: "Arrest me."
Baird wheeled open the head gates on his diversion from a creek leading into the Scott River on April 1 without DFG permission. He opened the water diversion, which he said has been adjudicated, with nearly 150 people gathered in protest of the controversial permits.
"We invited Fish and Game to come and arrest somebody, and they didn't come," said Baird, 59.
Arrests and fines are a risk for ranchers and growers in the Scott and Shasta valleys after a judge this month finalized his tentative February ruling in a lawsuit focused on a pilot program for water diversion permits. Judge Ernest H. Goldsmith said the state wasn't being strict enough in the valleys, which drain into the Klamath River in Siskiyou County, and that the irrigators are killing protected coho salmon with their water draws.
"Despite DFG's good-faith efforts and potential hardship to water users, the Court must uphold the Legislature's mandate to preserve listed species" under state environmental laws, Goldsmith wrote in his ruling. The coho is listed as threatened by federal and state scientists.
Goldsmith's ruling effectively ended the DFG's pilot program that made it easier for people to acquire water diversion permits.
He handed the agency an edict to reevaluate what needs to be done to improve conditions for salmon in the Scott and Shasta rivers. Now agriculture and environmental interests from around the state watch and wait to see what it will do.
"Obviously our number one priority is protecting the coho," said Jordan Traverso, DFG spokeswoman in Sacramento.
Ranchers and growers wonder if that means there will be increased regulation and repercussions for water use, like what Goldsmith called for in his ruling. Baird says he objects to Goldsmith's ruling and reinforces his point with his unpermitted flow of water.
"He's branded all waters users as fish killers with no evidence to substantiate that charge," he said.
The DFG could appeal the ruling but appears ready to overhaul how it issues and oversees permits.
"If we want to continue with the program we have to change it up there," Traverso said.
While glad to be the apparent winners in court, the conservation group that started the coho legal fight says it all might be too late to help the fish.
"The ruling doesn't actually do what we would really like, which is put water or fish back in the river(s)," said Erica Terence, executive director at the Klamath Riverkeeper, the Orleans-based group that brought the suit.
'You're next'
The water issue boiling in Siskiyou County could have ramifications for water users around the state, said state Assemblyman Jim Nielsen, R-Gerber. And he's been telling them that.
"I am doing everything I can to export concern about this around California," Nielsen said. "My message to others around California is 'You're next.' "
What he means is the state could pile more rules and regulations onto water rights across the state, he said, possibly cutting the amount of water other users regularly receive.
Like Baird and the protesters who showed up to support him, Nielsen said the DFG is infringing on the ranchers' and growers' rights to use water. And that water is a private property right attached to the land they own.
"This is a fight that property owners must prevail in," he said.
Despite Goldsmith's ruling the legal battle isn't over. Between Goldsmith's tentative ruling in February and his final ruling two weeks ago, the Siskiyou County Farm Bureau filed a separate lawsuit against the DFG, saying the agency is interpreting laws incorrectly and infringing on long-held water rights. The case is still pending.
Having grown up in the Scott Valley, Liz Bowen, 55, president of Protect our Water, said ranching and growing is why people live there. And water for agriculture is what keeps them there.
"The water is what gives our land property value," she said.
The Scott River runs through Bowen's 100 acres, supplying water for agriculture while adding to the scenery. Bowen said she doesn't want to harm fish and wants to be able to toss a fishing line into the stretch of river crossing her land.
"But it's illegal to go fishing because I might catch a coho," she said.
Nielsen said the state doesn't need to be heavy handed with the Scott and the Shasta, the ranchers and growers like Bowen. He said they'll do their own projects to revive salmon without regulatory prompting.
Sharing the water
Environmental groups and commercial fishermen have heard that before from agriculture interests, argues Terence, head of the Klamath Riverkeeper. She said restoration efforts in the valley have yet to focus on how much water agriculture is leaving in the rivers for fish, and until they do, the salmon returns will continue to drop.
"The bottom line is people are going to need to give up some water," she said.
That could mean grazing fewer cattle or growing fewer crops, cutbacks Terence said ranchers and growers are hesitant to make.
The DFG designed its pilot permit program as a way to balance agriculture water use and coho water needs in the Scott and the Shasta, which scientists consider to be potentially some of the best salmon spawning streams in the state, said Curt Babcock, a DFG environmental program manager in Redding.
The program also was intended to streamline the process of obtaining state approval for water diversions and projects in or close to the rivers or their tributaries.
"Individually it can be expensive and burdensome," Babcock said.
While the program had good intentions, the DFG weakly enforced its own rules and wasn't focused enough on stopping water diversions or changes to the rivers or their tributaries that killed off the coho, Terence said.
She said he's hopeful that Goldsmith's ruling will change that.
