- a weekly column published in the Pioneer Press by Marcia Armstrong, Siskiyou County Supervisor

April 14, 2010

Stopher said that the coho was proposed for state listing in 2000. While a recovery plan was being prepared, the CA Fish and Game Commission held off on listing until 2004. Local participation in the planning effort resulted in a proposal for a watershed-wide programmatic approach to “Incidental Take” permitting (ITP.) Siskiyou County declined to take on the responsibility of permitting. The Resource Conservation Districts (RCD) were approached to organize the application; provide subsequent guidance and assistance to landowners; and to pursue mitigation projects on a watershed basis. For the past several years, the DFG and the RCDs have been negotiating the terms and conditions of that programmatic permit approach.

Unfortunately, there has been a substantial glitch in that process which has caused a delay in final agreement. It was announced last night that concerns may have been addressed and the two RCDs are currently scheduled to vote on whether to sign the agreements on the 16^th   (Shasta RCD) and 19^th (Siskiyou RCD) of April. There has also been a lawsuit filed against the DFG concerning the Environmental Impact Report (EIR) that has been done in connection with the permit.

Under CESA, anyone is prohibited from “taking” a listed species in the process of an otherwise legal activity without getting an ITP. ("Take" means pursue, catch, capture, or kill, or attempt to pursue, catch, capture or kill.) The permit application process involves the submission of an application with supportive information. The DFG will determine what actions need to be taken to “avoid and minimize” take. A permit cannot be issued if the activity will jeopardize the species. Under Fish and Game Code 2081, permit holders are also required to “fully mitigate” their take. This means that the fish population is to be left no worse for the activity. For a small landowner, this may require mitigating conditions such as paying into a fund to restore coho or a requirement to reduce their diversions below their adjudicated water use right

Stopher also indicated that water diverters will need a (new) 1602 permit. Fish and Game Code 1602 states that: “an entity may not substantially divert or obstruct the natural flow of, or substantially change or use any material from the bed, channel, or bank of, any river, stream, or lake, or deposit or dispose of debris, waste, or other material..” without filing a written notification form with the DFG. This is followed by a determination as to whether activities will have an adverse effect on fish and the imposition of conditions through the permit. Existing 1602s only cover streambed alteration. New 1602s will have to be acquired for the act of diverting the water.

Both the ITP and the 1602 permit conditions will also address requirements of Fish and Game Codes 5937 and 5901. The first code requires that “The owner of any dam shall allow sufficient water at all times to pass through a fishway, or in the absence of a fishway, allow sufficient water to pass over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam.” 5901 pertains to prohibiting barriers to fish passage. These codes could require a diverter to reduce his water usage below his adjudicated water use right. Under the RCD process, once enrolled, a fisheries biologist will visit the diversion with the irrigator, discuss his individual circumstances and select from a master list of possible terms and conditions for the permit. These cover 14 possible activities that have been determined to cause prohibited take.  

The California Environmental Quality Act (CEQA) will apply to both the ITP and the 1602 permitting process. Depending on the extent and impact of the project, this could mean a simple Categorical Exemption with a checklist for projects with no significant effects (unlikely); a mitigated negative impact declaration with various required studies and a public comment period; or a full blown Environmental Impact Report (EIR) prepared by a contracted consultant. Costs of such reports can range from $10,000 for a small project to well over $100,000 for an irrigation district. There are also fees for the application and filing. (The application and EIR have already been completed for the RCD’s programmatic permit, so participants will not have to pay those particular expenses.)   

Stopher explained that the diverter has a possibility of three options: (1) enroll in the RCD option – if available; (2) get his own permits; (3) don’t do either of the previous options. The third option means the diverter would end up without a 1602 or ITP. Stopher indicated that it is likely that this would lead the law enforcement division to investigate. This could lead to possible criminal or civil prosecution by the Siskiyou County District Attorney.