Part 1 - Siskiyou County

How Water and Land Use Regulations and Litigation Are Destroying Us

By Marcia H. Armstrong © 2012
armsrtrng@sisqtel.net
(reprint granted with attribution)

Background on Siskiyou County and its Economy

GENERAL:

Sixty-three % (63%) of the land base in Siskiyou County is in Federal (or state) ownership. There are portions of the Klamath National Forest; Shasta-Trinity National Forest; Six Rivers National Forest; Modoc National Forest; and Rogue Siskiyou National Forest in Siskiyou County. The Klamath National Forest’s 1.7 million acres alone comprises 42% of Siskiyou County’s land base. The county also includes the Tule Lake and Lower Klamath National Wildlife Refuges, as well as the Lava Beds National Monument. There are various BLM lands administered by the Redding, Medford, Ashland and Susanville BLM offices.   There are more than 152 miles of wild and scenic rivers in the County. There are lands held in tribal trust for the Karuk and Quartz Valley Indian tribes.

The entire land base of Siskiyou County is 4,038,843 acres or 6,287 square miles. Of this, 1,153,246 acres  (29%) is in farmland, however only 138,000 acres (3% of tot. county acres) are irrigated. 2,525,216 acres is considered rangeland/woodland/ forest (inc. National Forest.) Our relatively sparse population of 44,301 classifies the county as “frontier.” There are nine small incorporated cities that date back to the California Gold Rush. Eight tenths of one percent of private land is urban.

In the year 2000, the average unemployment rate for the year was 7.5%. By 2008, it had risen to 10.2%, rising again to 15.8% in 2009. In March of 2012, the unemployment rate was 18.7%, ranking Siskiyou 50th out of 56 counties in the state. There are many forest-dependent communities in our county where local unemployment is estimated from 30-40%. The average wage per job in 2008 was $32,707. That was only 63% of the state average. The median household income was $36,823 — or 60% of the state median. Non-household median income is currently $27,718 — a ranking of 47th in the state. The AP Economic Stress Index ranks Siskiyou County as the 14th most economically stressed county in the United States.

Siskiyou County has a substantial low income population. In 2010, 18.6% of all residents in Siskiyou County, 26.6% of children under the age of 18 and 7.3% of those 65 years or older lived below the poverty line.  In 2010, the economic impact of jobs at Human Services and entitlement benefits to County residents was $71,581,874. This includes: $11.6 million in annual "assistance costs" (CalWorks/welfare, Foster Care;) $8.8 million in annual food stamps; $4.7 million in In-Home-Support-Services for the elderly and disabled; and $36.7 million in Medical Assistance/Medi-Cal.

Social statistics indicate that Siskiyou County has the second highest child abuse/neglect rate in the state - (3 times the state average.) Compared to Los Angeles County, Siskiyou County has higher rates of all forms of violent crime except homicide. [aggravated assaults, forcible rape, and robbery.] Often these crimes have similar underlying causes, namely, social strain combined with the selective disinhibition fueled by alcohol and drug use (read Robert Nash Parker; Robin Room; and Jeffery A Roth). The premature death rate for the general population is almost twice that of the national average.

According to Indicators of Alcohol and Other Drug Risk and Consequences for California Counties Siskiyou County 2007, the number of local fatalities in alcohol-involved motor vehicle accidents was three times that of the statewide average; the death rate due to alcohol and drug use was 32.5 deaths per 100,000 persons (compared to a state average of 20.9/1000.) Methamphetamine accounted for 44% of admissions for alcohol and drug treatment. Admissions for alcohol use accounted for 31 percent of admissions in 2004. The death rate for cirrhosis if the liver was three times the Healthy People 2010 goal. Drug-induced deaths were 19 times higher than the Healthy People 2010 goal per 1,000. About 85% of child abuse cases involve methamphetamine.

The economy of Siskiyou County is based on small business. In 2008, there were 6,857 non-farm proprietors in Siskiyou   County. According to 2007 data, 61% of non-farming establishments in SiskiyouCounty had less than 4 employees; 82% had less than 10 employees and 93% had less than 20.

Agriculture is a major economic sector of the county. Our 2010 Siskiyou County Annual Crop and Livestock Report indicates that the agricultural valuation in the county was $195,711,956 (gross and excluding timber.) According to the USDA Ag Census, in 1992 Siskiyou County had 647,446 acres in farms. By 2007, this had been reduced to 597,534 acres. The 1996-2008 Land Use Summary, Farmland Mapping and Monitoring Program indicates that during the span of the report, Siskiyou County lost 15,164 acres of prime farmland; 3,036 acres of farmland of statewide importance; 40,456 acres of farmland of local importance. With an addition of 16,126 acres of grazing land and 2,390 acres of unique farmland, this mean a total loss of 40,140 acres of farmland. In 2000, there were 895 farm proprietors in Siskiyou County. This declined to only 730 in 2008. The county lost 81 livestock ranches from 1992 to 2007, with an accompanying loss of 20,882 fewer cattle and calves in inventory. According to the CA D.O.T. Siskiyou County Economic Forecast, since 1995, Siskiyou County’s agriculture industries have experienced substantial job loss of about 586 jobs, declining almost 45%.

During the past 20 years, there has also been a restructuring of size and sales in agricultural operations. Since 1992 to 2007, there has been an increase in the number of small farms: farms under 10 acres doubled to 80. Farms under 50 acres increased 59% to 229. Farms 50-179 acres increased 27% to 228. Farms from 180-449 acres remained about the same at 79. However, there was a 19% reduction in farms 1000 acres or more to 100 farms in 2007. One aspect of this is land conversion from private to Federal lands. Since 1999, 8,625.71 acres valued at $3,922,179 have been converted to Federal land. Another 11,236 acres of ranch land in the Shasta Valley is currently proposed for conversion to a new wildlife refuge. In addition, the proposed Klamath Basin Restoration Agreement seeks to convert 44,479 acres of farmland in the Upper Klamath Basin to wetlands, (some of which may be in Siskiyou County.) It also proposes to secure 21,800 acres of farmland by acquisition or conservation easements in the Scott and Shasta Valleys of Siskiyou County.

At the same time, farms having less than $2,500 in sales increased 105% to 359. Farms selling $2,500-9,999 stayed about the same at 151. Farms selling $10-$24,999 decreased 10% to 95. Farms selling $25,000-$49,999 decreased about 18% to 60. Farms selling $50,000 to $99,999 decreased 45% to 44 and farms with sales in excess of $100,000 increased by 28% to 137.

Siskiyou County accounts for 15% of the timber harvested in California. At one time, it was the second largest timber production area in the state. However, our forest industries have been devastated by Federal and State regulations. For instance, the forestry section of Siskiyou County’s 1972 Conservation Element of the General Plan indicated that there were 17 sawmills in the county (employing 2,055 people or 24% of the employment base) and 8 wood processing facilities (employing 294 people or 3% of the employment base). There were 46 logging contractors and support establishments employing 501 people or 5% of the employment base. By 2007, all 17 sawmills were gone. The census indicates that there were a total of 6 wood products manufacturing establishments (including veneer mills) employing 380 people (one mill has subsequently closed in Butte Valley). There were 38 Logging, Forestry and Support Establishments employing 157 employees.

There is no doubt that the restrictions on timber harvest from public lands under the Northwest Forest Plan have played a significant role in this decline. In 1978, 239 MMBF of timber was harvested from the Klamath National Forest (KNF), 274 MMBF from the Shasta Trinity National Forest (STNF) and 73 MMBF from the Six Rivers National Forest (SRNF.) In 2008, 20 MMBF was harvested from the KNF, 22 MMBF from the STNF and 8 MMBF from the SRNF. [See http://users.sisqtel.net/armstrng/regulatory%20impacts.htm for links to tables and reports]

1986 KLAMATH RIVER BASIN FISHERY RESOURCE RESTORATION ACT: (Public Law 99-552, 16 U.S.C. 460ss-3 et seq.) pledged the appropriation of  $21 million by the Department of Interior from October 1, 1986, through September 30, 2006. A matching $21 million is to be provided by nonfederal sources. Under the act, a fourteen-member Klamath River Basin Fisheries Task Force was created . Members were appointed by and represent the Governors of California and Oregon; the U.S. Secretaries of Interior, Commerce and Agriculture; the California counties of Del Norte, Humboldt, Siskiyou and Trinity; Klamath County, Oregon; the Hoopa Valley, Karuk, Yurok and Klamath native tribal fishers; anglers and commercial salmon fishermen. The imbalanced Task Force did not include water users or effected land uses- ranching, farming, timber, mining, urban, although restoration plans largely focused on these activities. Much of the Task Forces early meetings included the question whether the scope of their area included the Upper Klamath Basin and what representation the Upper Basin interests should have on the Task Force. 1991 Long Range Plan For The Klamath River Basin Conservation Area Fishery Restoration Program; 1999 Mid-Term Evaluation Report Proposals at the sunset of the Act included merging the Task Force with the Hatfield Group. (However, this still left water and resource users in the mid-Klamath without direct representation.) The 2004 Addendum 1 to the Long Range Plan was aggressive in seeking restrictions on economic land uses and securing instream flows for salmon. The Task Force has now ceased to be.

The Act also established the Klamath Fishery Management Council for recommendations on the allocation of the fishery. (The Klamath River Basin Fishery Resource Restoration Act  was not Reauthorized by Congress.) GAO Report; Armstrong Column on how the money was spent.

1990 CALIFORNIA WILDLIFE PROTECTION ACT: This act harmed local ranchers by designating mountain lions a protected species. This has resulted in livestock and wild game predation. Local deer herds have been decimated by predation, depressing a once robust tourism opportunity for hunters. Siskiyou County is one of the first counties in California that will have to contend with federally protected wolves – another dangerous predator - particularly in cattle country.. 

1995 KPOP: Klamath Project Operating Plan; Ch2MHill Tech Mem.

1996 UPPER KLAMATH BASIN WORKING GROUP: Upper Klamath Basin Working Group, was established by Public Law 104-333 to develop consensus solutions to complex agricultural and endangered species issues associated with water allocations. (Key partners: Bureau of Land Management, Bureau of Reclamation, California Waterfowl Association, Crater Lake Realty, Klamath Basin Audubon Society, Klamath Basin Ecosystem Restoration Office, Klamath Compact Commission, Klamath County Cattlemen’s Association, Klamath County Commissioner, Klamath County Economic Development Association, Local Businesses, Natural Resource Conservation Service, Oregon Department of Fish and Game, Oregon Institute of Technology, Oregon Water Resources Department, PacifiCorp, Soil and Water Conservation District, The City of Klamath Falls, The Klamath Tribes, Tulelake Growers Association, Tulelake Irrigation District, U.S. Fish and Wildlife Service, U.S. Institute for Environmental Conflict Resolution, U.S. Timberlands, U.S.D.A. Forest Service, and others. (Crisis to Consensus)

1996-  17 RIVERS LAWSUIT: The “17 rivers” lawsuit, Pacific Coast Fishermens Assocs. v. Marcus, No. 95-4474, against the U.S. EPA and the SWRCB (CA State Water Resources Control Board) brought water quality regulation to the county’s major northern water-bodies (Klamath, Scott, Shasta, Salmon Rivers.) The lawsuit directed the establishment of Total Maximum Daily Loads for sediment, temperature, dissolved oxygen and nutrients.  Section 303(d) of the federal Clean Water Act (33 USC §1313) requires that "Each state shall identify those waters within its boundaries for which the effluent limitations . . . are not stringent enough to implement any water quality standard applicable to such waters." The Clean Water Act requires states to establish a priority ranking for waters on the Section 303(d) list of impaired waters and to establish total maximum daily loads for such waters. TMDL Schedule

[Under the California Porter- Cologne Water Quality Act and Section 303(d) of the federal Clean Water Act, the North Coast Regional Water Quality Control Board (NCRWQCB) has established a list of “beneficial uses” of water for each river system, including the Scott and the Shasta. (These would be uses such as irrigation, recreation, and cold water fisheries.)  For each beneficial use, water quality standards are established. (For instance, salmon are a cold water fish that need habitat that does not exceed a certain range of temperature.) When a river does not meet the water quality standards for each of its beneficial uses, it is declared water quality “impaired.” A Total Maximum Daily Load or TMDL is the maximum amount of pollutant that a river can receive and still meet the water quality standards for its beneficial uses. When a TMDL is established, the NCRWQCB also establishes an Action Plan for restrictions on land and water uses in order to meet water quality objectives. NCRWQCB staff explained why requirements for fish at the expense of agriculture follow the law: What quality objectives for agriculture are  principally salinity levels. However, “water quality” habitat factors for fish included shade, clean gravel, cold water, cover and channel structures that depend upon an entire well functioning hydrologic system to exist. So, requiring land uses such as agriculture to be subservient to those habitat needs does not pose a conflict under water quality considerations. ]

1998 GROUNDWATER ORDINANCE: Siskiyou County added a groundwater ordinance to its County Code Title 3 Chapter 13 asserting jurisdiction over groundwater; requiring a permit for exportation (2001.)

1999-2006 HARDY FLOWS: Dr. Thomas Hardy completed his models of the relationship of flows in the Klamath River to habitat available for anadromous salmonids. The National Academy of Sciences (NAS) team reviewed the study as did others. ; Rykbost Klamath Watershed in Perspective

1999 NOAA FISHERIES/NMFS ISSUES CRITICAL HABITAT DESIGNATION FOR SONCC COHO

1999 CA DFG INTRODUCES NEW CEQA COMPLIANCE REQUIREMENTS ON 1602s: As a result of a lawsuit, the CA DFG   introduces new CEQA compliance requirements on streambed alteration agreements. [Fish and Game Code  1602: "(a) 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 containing crumbled, flaked, or ground pavement where it may pass into any river, stream, or lake, unless all of the following occur: (1) The department receives written notification regarding the activity in the manner prescribed by the department. The notification shall include, but is not limited to, all of the following: (A) A detailed description of the project's location and a map. (B) The name, if any, of the river, stream, or lake affected. (C) A detailed project description, including, but not limited to, construction plans and drawings, if applicable. (D) A copy of any document prepared pursuant to Division 13 (commencing with Section 21000) of the Public Resources Code. (E) A copy of any other applicable local, state, or federal permit or agreement already issued. (F) Any other information required by the department. (2) The department determines the notification is complete in accordance with Chapter 4.5 (commencing with Section 65920) of Division 1 of Title 7 of the Government Code, irrespective of whether the activity constitutes a development project for the purposes of that chapter. (3) The entity pays the applicable fees, pursuant to Section 1609. (4) One of the following occurs: (A) (i) The department informs the entity, in writing, that the activity will not substantially adversely affect an existing fish or wildlife resource, and that the entity may commence the activity without an agreement, if the entity conducts the activity as described in the notification, including any measures in the notification that are intended to protect fish and wildlife resources."

2000 US DOI & BIA v KWUA: Dept. of Interior v. Klamath Water Users Protect. Assoc.; The Supreme court grants certiorari regarding an issue nondisclosure in a Freedom of Information Act (FOIA) request regarding the Bureau of Reclamation's meeting with tribal interests and their influence on KPOP.1999 US Court of Appeals - Ninth Circuit - 189 F.3d 1034

2000 PACIFICORP COMMENCES PROCESS OF PREPARING FOR DAM FERC RELICENSING: ( Federal Energy Regulatory Commission relicensing of Klamath River Dams - Iron Gate, Copco 1 and 2, and the J.C. Boyle Dams.)

2000  KLAMATH BASIN WATER SUPPLY ENHANCEMENT ACT: Public Law 106-498 106th Congress The Klamath Basin Water Supply Enhancement Act is authorized and directed, in consultation with affected State, local and tribal interests, stakeholder groups and the interested public, to engage in feasibility studies of the following proposals related to the Upper Klamath Basin and the Klamath Project, a Federal reclamation project in Oregon and California: (1) Increasing the storage capacity, and/or the yield of the Klamath Project facilities while improving water quality, consistent with the protection of fish and wildlife. (2) The potential for development of additional Klamath Basin groundwater supplies to improve water quantity and quality, including the effect of such groundwater development on nonproject lands, groundwater and surface water supplies, and fish and wildlife. (3) The potential for further innovations in the use of existing water resources, or market-based approaches, in order to meet growing water needs consistent with State water law.

2000 KWUA v. PATTERSON: Klamath Water Users Association v. Patterson (15 F. Supp. 2d 990, 996 (D. Or. 1998), 204 F.3d 1206 (9 Cir. 2000) that BOR is legally obligated to operate the Project “to meet the requirements of the ESA, requirements that override the water rights of the Irrigators.” The court relied on the principal that “contractual arrangements can be altered by subsequent Congressional legislation” even when the legislation was passed after the contracts were made.

2001 PCFFA LAWSUIT UNDER ESA: In Pacific Coast Federation of Fishermen’s Assoc. v. Bureau of Reclamation, 138 F. Supp. 2d 1228 (N.D. Cal. April 3, 2001), the federal court faulted the Bureau of Reclamation for failing to consult with National Marine Fisheries Service (NMFS) on the effects of irrigation releases on downstream coho salmon under its 2000 operating plan, and enjoined (prohibited) Reclamation from making further irrigation releases until it formally consulted on its next (2001) annual plan.

2001 SHUT OFF OF WATER TO KLAMATH PROJECT FARMERS: Requirements under the Biological Opinions [see federal nexus [x] for minimum lake levels for sucker fish and Klamath River flows for downriver salmon, caused the federal Bureau of Reclamation to shut down the headgates for water delivery to Federal Klamath Water Project farms in the Upper Klamath Basin in 2001, a drought year. (Each year, Reclamation establishes a management plan for the Project based on its April 1 designation of water year type.) Farmers sought an injunction to prevent BoR's implementation of the 2001 operating plan, but were denied. The federal court encouraged parties to pursue a negotiated solution.[xi] The water shut-off caused mass economic hardship with farmers losing their farms and migrant farm workers becoming stranded without work. Protests were held at the headgates with farmers twice manually opening them in defiance. A civil disobedience event called the “Bucket Brigade” drew 20,000 people to pass water buckets down the main street into the dry A Canal. In August, well into the growing season, the Secretary of Interior authorized the release of an additional 75,000 AF from Upper Klamath Lake for agricultural purposes. Klamath Basin Farmers Take Water Issue into Their Own Hands Protesting farmers used their bare hands to open the headgates on a Klamath Lake canal in Klamath Falls, OR; Judge Denies Klamath Farmers' Desperate Plea for Water; Soil blowing away from lack of irrigation; photos of the impact; Federal Circuit Decision a Big Win for Klamath Basin Water Users;Klamath Irrigation District v. United States, No. 01-591 L ; Restoring Harmony in the Klamath Basin

2001 CA NORTH COAST WATERSHED ASSESSMENT PROGRAM: Multi-agency watershed assessment and planning. Power Point

2002 BIOLOGICAL ASSESSMENT AND OPINION: The BOR produces its Final Biological Assessment: The Effects of Proposed Actions Related to Klamath Project Operation (April 1, 2002 – March 31, 2012) on Federally-Listed Threatened and Endangered Species. NMFS produces Biological Opinion: Klamath Project Operations. The Bureau of Reclamation is required to: restore wetlands in the Shasta Valley; Study development of Shasta and Scott groundwater resources to replace surface water use in those valleys; Use  non-government organizations (NGOs) to acquire water rights totaling 25,000 acre-feet in the Scott and Shasta Valleys. (The  intention was to find water flows outside of the Klamath Project that would contribute 43% of the flow required from Iron Gate Dam for the Klamath River under the coho Biological Opinion.) In addition, the BoR was directed to develop a comprehensive basin-wide plan for   ecosystem restoration and scientific research through 2012. The plan was to be developed by "networking stakeholder groups" in the basin. It would then provide direction for activities on the federal, State and local level, as well as for interest groups. It was envisioned that the program would be built around of the Oregon Resource Conservation Act of 1996 (ORCA P.L. 104-208, Title 2, Section 201) to promote ecological restoration, as well as economic development and stability. [The Bureau of Reclamation has no geographic jurisdiction outside the Klamath Project.]

2002 FISH DIE OFF: Fish die off of more than 32,897 salmon in lower Klamath River. Tribes, fishermen and environmentalists blamed the Bush Administration for releasing water to Klamath Project farmers. Sept. 2002 Klamath River Fish-kill; Final Analysis of Contributing Factors and Impacts;  Dr. David Vogel's analysis; William Lewis chair of the National Research Council (NRC) Committee on Endangered and Threatened Fishes in the Klamath River Basin (“Klamath Committee”) between 2002 and 2004 testimony to House Natural Resources Committee. In 2005, a federal judge dismissed a lawsuitbrought by the Yurok Indian tribe that sought to hold the U.S. Bureau of Reclamation responsible for a salmon die-off in the lower Klamath River. A 2003 USFWS report attributed the die off to: (1) The large size of the fall run of Chinook salmon returning to the Klamath River from the Pacific Ocean; (2) High densities of fish in the lower river, which allowed the pathogen outbreaks to spread quickly. Large numbers of fish congregated in the lower river one to two weeks earlier than normal, but a lack of rainfall or freshwater pulses left the fish with no cues to begin their upstream migration; (3) Relatively low flow in the lower Klamath River. Average monthly flow in 2002 was the fifth lowest in the period from 1978 to 2002; (4) Hot weather, which left water temperatures higher than optimum for salmon.

2002 NAS REVIEW: The National Academy of Sciences (NAS) formed a Committee on Endangered and Threatened Fishes in the Klamath River Basin in order to review the scientific information used in preparing the Biological Assessment and Biological Opinion. National Research Council’s (2002) Interim Report “Scientific Evaluation of Biological Opinions and Endangered and Threatened Fishes in the Klamath River Basin” is also used in the 2002 BA, and BOR states that there is no substantial evidence to suggest that increased stream flow would improve the salmon runs. The review found that there was "no sound scientific basis for cutting off water to farmers in 2001 in order to help the habitat of endangered fish” (National Research Council 2002, 4.)

2002 THE NORTH COAST INTEGRATED REGIONAL WATER MANAGEMENT PLAN (NCIRWMP):  was adopted by resolution by the seven north coast counties, (Modoc, Siskiyou, Humboldt, Del Norte, Trinity, Sonoma and Mendocino,) comprising the North Coast Regional Water Management Group in July 2007. The plan was a prerequisite for application for project grant money under CA Proposition 50 and Proposition 84. CA IRWM Program.

2002 NINTH CIRCUIT NON-POINT POLLUTION and TMDLS: In May 2002, the Ninth Circuit ruled in Pronsolino v. Nastri that the Total Maximum Daily Load (TMDL) provision of the Clean Water Act (CWA) authorized the Environmental Protection Agency (EPA) to list and develop a TMDL for the Garcia River in Northern California, polluted solely by nonpoint source pollution. (The Garcia was part of the 17 rivers lawsuit of 1997); A Breathtaking Assertion of Power"? Not Quite. Pronsolino v. Nastri and the Still Limited Role of Federal Regulation of Nonpoint Source Pollution

2003 CA RECOVERY STRATEGY FOR CA COHO SALMON: Separate Shasta Scott Pilot Recovery Strategy process begins and will include provision for a programmatic Incidental Take Permit when coho is listed.

2003 WATER SHUTDOWN AVERTED: The Bureau of Reclamation announced that irrigation water would be shut off until minimum lake levels for sucker fish were achieved. The White House interceded to halt the shutoff. Basin farmers voluntarily reduced irrigation deliveries and pumped more groundwater. Tri County Courier:: "On the day Klamath Project irrigators were told the Project would be shut down to meet required levels in Upper Klamath Lake, more than 2,000 acre-feet of water was released over Iron Gate Dam. The rate of the release exceeded that called for in the Bureau of Reclamation’s 2003 Operations Plan, which set a release of 1,300 acre-feet per day. The same plan also includes the minimum lake levels that Klamath Project Manager Dave Sabo told irrigators on June 25 he could not violate under “explicit directives” that came from within the Department of Interior." "Sabo said the release schedule was modified in May after he was approached by the National Marine Fisheries Service, now called NOAA Fisheries, and representatives of the Yurok Tribe. 'We had reached an agreement with NMFS and the Tribe to provide higher flows downstream,' Sabo said. 'NMFS can change the schedule any way they want. The water went down because I had additional water from inflows into the lake.' When the Bureau saw that the July 1 lake level as set in the Operations Plan was going to be “busted,” Sabo said he contacted NMFS to seek flexibility in the Iron Gate release rate. He was not successful. 'I was told ‘no way,’' Sabo said. 'We will release 950 cubic feet per second through July, and 1,000 cubic feet per second through August.” (Under that year's current water year designation, the Operations Plan calls for an average of 730 cfs to be released over Iron Gate in July, and 979 cfs in August. Should the water year be changed back to “dry” from its current designation as “below average,” the disparity widens. The Operations Plan calls for releases of 515 cfs in July and 560 cfs in August under a “dry” water year schedule. "Because of the agreement, more than 31,800 acre-feet of water above what was called for in the Operations Plan was sent downstream during the month of June.")

2003 PCFFA SUES BoR UNDER ESA: In Pacific Coast Federation of Fishermen’s Associations v. Bureau of Reclamation, 2003 U.S. Dist. LEXIS 13745 (N.D. Cal.2003,) the US District Court rules NMFS Biological Opinion to be "arbitrary and capricious" The district court ruled that the NMFS alternative was arbitrary and capricious and did not fully explain how its implementation would avoid the likelihood of jeopardy to coho salmon. The district court’s ruling was upheld on appeal by the Ninth Circuit Court of Appeals, which later remanded the case to the district court with instruction for the “issuance of appropriate injunctive relief.” The district court issued an injunction on March 27, 2006

2004 MORE WATER DOWN THE TRINITY: A lawsuit by Hoopa and other interests secured additional flows for the Trinity River - a major tributary to the lower Klamath River. Historically, as much as 90 percent of the river had been diverted for crops in the San Joaquin Valley, more than 200 miles south, as well as for power generation. The 9th Circuit Court of Appeals reduced the amount diverted to 52%. Depending on precipitation, the Trinity River will ultimately get between 368,600 and 815,200 acre-feet of water each year.

2004 MID-KLAMATH TMDL: TMDLs for sediment.

2004 CA LISTING OF COHO: 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. Negotiations of the terms and conditions of that programmatic permit approach between the CA DFG and RCDs took several years.

2004 DROUGHT MANAGEMENT PLAN (NRCS): Work Plan for Adaptive Management Klamath River Basin Oregon & California; Draft Klamath (KBRA) drought plan; Siskiyou Co. Board of Supervisors and the Siskiyou Co. Flood Control District's Response to the Draft Drought Plan

2004 USFWS FLOW STUDIES: USFWS (Tom Shaw) conducts flow and habitat studies on the Klamath mainstem and part way up the Scott and Shasta tributaries. He determined that edges of the Klamath should be flooded for rearing habitat.

2004 SHASTA GROUNDWATER STUDIES: The Shasta Coordinated Resources Management Planning group begins studies on Shasta groundwater.

2004 KLAMATH TRIBES SUE PACIFICORP: The Klamath Tribes requested damages related to the alleged destruction and interference with federal treaty fishing rights due to PacifiCorp's construction and operation of hydroelectric dams on the Klamath River. The case was dismissed due to a lack of timeliness.

2004 KLAMATH RIVER WATERSHED COORDINATION AGREEMENT: The Klamath River Watershed Coordination Agreement established the State and Federal Klamath Basin Coordination Group consisting of the designees of OR and CA, the U.S. Departments of the Interior, Agriculture, and Commerce, and the Environmental Protection Agency. The group is to "place a priority on their Klamath Basin activities and on their coordination and communications with one another and with tribal governments, local governments, private groups and individuals, to resolve water quantity, water quality and fish and wildlife resource problems in the basin" and "work diligently to recover the threatened and endangered fish species in the Klamath basin, enhance anadromous fish runs, improve and protect fish and wildlife habitat and water quality, and provide water for irrigation and other beneficial uses." All agree to "develop a long-term management approach, a common vision, and integrated planning..."

2004 CONSERVATION IMPLEMENTATION PROGRAM (CIP): In the 2002 ten year Biological Assessment for the Klamath Project Appendix A, 2.B, the Bureau of   Reclamation proposed to develop a comprehensive plan to provide direction for research efforts, implementation of restoration projects, and monitoring of results. The geographic scope of this Program was the entire Klamath River Basin. The plan would be developed with the Tribal and state governments and a network of stakeholder groups and would provide a mechanism for implementation of activities to improve habitat conditions for the listed species. The purpose of the basin-wide plan was: 1) To largely restore the Klamath River ecosystem to achieve recovery of the Lost River and Shortnose suckers, and to substantially contribute to the recovery of the SONC ESU of Coho salmon; 2) To contribute to, but not to fully discharge, the tribal trust responsibilities of the federal government; and 3) To allow continued sustainable operation of existing water management facilities and future water resource improvements for human use in the Klamath Basin. The plan was entitled the Klamath River Basin Conservation Implementation Program.

The CIP governance structure as proposed was 3-tiered. The Policy Administration Group would oversee the policy issues of CIP as they relate to government policy, funding, and authorization. [Comprised of Tribal Chair, Regional Director, Regional Administrator, Executive Director, Area Manager, State Supervisor, Governor’s representative] A Coordination Council would conduct the CIP’s regular business including planning, coordinating with other entities, and preparing an annual work plan/budget. Support for these two Committees would be provided by four standing committees: Public Involvement, Science, Water Quality, and Tribal Trust Committees. {The Public Involvement Committee (PIC) would actively coordinate with outside groups, and be responsible for the production of information and education materials about the CIP and its mission and accomplishments.) The Science Committee will be supported by 5 subcommittees: An Independent Science Review Panel, and the Salmon, Sucker, Native Aquatic Species, and Other Resources subcommittees. Subcommittees could be created and dissolved as needed. A Program Administrator and staff could be created. The CIP Administrator will track and manage the budget, keep records, plan and manage meetings, and conduct other support services for the Policy Administration Group and Coordination Council. Each select CIP Participant would appoint one individual to represent them on each of the committees as appropriate. A backup would be designated to hold official proxy for the member when the member cannot be present for a meeting. [The CIP did not proceed forward, although elements are included in the KBRA.]

2004-2005 CHADWICK CONSENSUS PROCESS: In 2004 1nd 2005, Bob Chadwick held several consensus workshops throughout the Klamath River Basin to identify focus areas of concern to different interest groups and areas of the basin. The process brought together "stakeholders" from the entire region to share perspectives with the objective of forming a basin-wide or  "One Basin" approach. However, two Klamath Compact Commissioners imposed a dam removal agenda on the "grassroots" process. The workshops were funded by the Bureau of   Reclamation and other agencies. At the final workshop, it was proposed to create a "One Basin Congress." The formal process faded out when funding ceased. One Basin Klamath Congress Proposed

2005 KLAMATH SETTLEMENT GROUP BEGINS TO MEET: The Klamath Settlement group begins as a spin off from the "settlement group" PacifiCorp assembled as part of its FERC licensing process. The new 2005 Settlement group makes agreement to require endorsement of "dam removal" as a condition of participation and expands its focus to restoration. Klamath River Settlement Takes Shape; The Board of Supervisors is unaware of this change Non-tribal Klamath mid-basin left out of Settlement Group

2005 FEDERAL COHO LISTING (temporarily) DISMISSED: In the case Grange v. National Marine Fisheries Service, Judge Michael Hogan agreed that the federal government violated the ESA when it failed to consider hatchery fish in its assessment of coho in southern Oregon and northern California rivers. However, Judge Hogan did not set aside the illegal listing, but left it in place while the agency completed the review of 26 west coast salmon listings, which it agreed to undertake as a result of its loss in the similar Alsea decision. (In June, 2004, NOAA proposed a new hatchery policy, but simultaneously announced that it would result in the relisting—not delisting—of west coast salmon and steelhead populations. SONCC coho were eventually relisted.) [2009 Appeals Court Upholds NOAA's Hatchery vs. Wild ESA Salmon Listing Policies]

2005 RANCH GROUPS (unsuccessfuly) SUE TO NEGATE CA STATE COHO LISTING:  (Fact sheet; Summary of Coho conservation measures already in place. 

2005 CAl/EPA ENVIRONMENTAL JUSTICE ACTION PLAN: Pilot Project for Klamath River Tribal governments. Goal: Effectively involve the Klamath River Tribes in the development of actions to restore fishery habitat and consequently fishery production in this important Pacific-Northwest watershed. Also, utilize cumulative impact analysis and the proposed Cal/EPA precautionary approach in implementation of this project

2005 NINTH CIRCUIT COURT of APPEALS RULING:  Coast Federation of Fishermen's Associations, the Oregon Natural Resources Council, Waterwatch of Oregon rejects the Bush administration's water diversion plan for the Klamath River because “it fails to protect threatened Klamath River coho salmon.”The Ninth U.S. Circuit Court of Appeals in San Francisco ruled that the Bureau of Reclamation's irrigation plan from 2002 to 2010 provides the coho with only 57 percent of the water it needs and fails to explain how the species will survive.A three-judge panel of the 9th Circuit Court of Appeals said the president's water plan failed to provide adequate water flows in the river until the final two years of the 10-year plan.

2005 YUROK FEDERAL RESERVE RIGHT CLAIM DISMISSED: On March 7, 2005, the U.S. District Court for the Northern District of California dismissed a claim for declaratory and injunctive relief by the Yurok Tribe based on federal reserved water rights. The Tribe alleged that the U.S. Bureau of Reclamation (Bureau) violated the Tribe’s federal reserved fishing rights and breached its trust obligation to the Tribe by failing to provide adequate levels of water flow in the Klamath River in August and September 2002. The Tribe contended that the Bureau’s failure substantially contributed to the death of at least 34,000 fish in the lower Klamath River on the Yurok Reservation from September 19, 2002 to October 1, 2002. The tribe wanted the Bureau to dedicate its stored water to them first, and only if there was water left over could any be used by the Klamath Project’s farmers.

2005 PCFFA v BoR ON FLOWS FOR COHO: In Pacific Coast Federation of Fishermen’s Association, et al. v. United States Bureau of Reclamation et al., 426 F.3d 1082 (9th Cir. 2005), the 9th Circuit held that the 2002-2012 Biological Opinion (BO) issued by the National Marine Fisheries Service for certain coho salmon runs, was arbitrary and capricious. Specifically, the Ninth Circuit held that Phase I and Phase II of the BO, which cover eight years of the ten-year plan, could not be supported because they failed to avoid jeopardy to the Southern Oregon/ Northern California Coast (SONCC) coho salmon - specifically the plan did not go far enough to ensure sufficient flows to protect the salmon. The court then remanded the action to the district court to issue injunctive relief. Denied appeal byKlamath Water Users

2005 KARUKS CLAIM DAMS IMPAIR HEALTH: In the FERC relicensing porcess for the Klamath dams, the Karuk assert that their health has become impaired because of a change in diet brought on by a lack of salmon. The four PacifiCorp dams up for relicensing have contributed to the salmon decline.

2005 KARUK and YUROK TRIBES CLAIM ALGAL TOXINS POSE HEALTH RISK: A news release from the Karuk and Yurok tribes claim that "Klamath Reservoirs Plagued by Toxic Algae -Algal Toxins Pose Significant Health Risk to Community." (Microcystis aeruginosa)

2005 LETTER OF INTENT: The CA DFG requires those wishing to participate in the coho programmatic Incidental Take Permit (ITP) and watershed-wide 1602 in the Scott and Shasta to submit a letter of intent.

2005 NATURALIZED PRE-PROJECT FLOW STUDY: Final Natural Flow study of the Upper Klamath River

2006 PCFFA v. BOR: PCFFA and others filed another lawsuit for injunctive relief. U.S. District Judge Saundra Armstrong ordered Reclamation to limit Klamath Project irrigation deliveries if they would cause water flows in the Klamath River at and below Iron Gate Dam to fall below 100 percent of the long-term flows specified in NMFS’ 2002 biological opinion

2006 SCOTT VALLEY (local) STATIC WELL STUDY COMMENCES: Scott Valley Groundwater study

2006 SCOTT RIVER TMDL ESTABLISHED. Total Maximum Daily Load limitations established for temperature and sediment. Requires a groundwater study to:1) Evaluate changes in river flows and the water table elevations from groundwater pumping; 2) Study Plan (Dr. Thomas Harter) to determine the magnitude of groundwater recharge from leaking ditches and percolation of irrigated water; 3) Determine the impacts of water table fluctuations on riparian vegetation; and 4) Identify opportunities, such as conjunctive use, to increase subsurface water storage. It also required a County road sediment source inventory and work plan; encouraged a grading ordinance; required review of suction dredge mining impacts; encouraged the RCD to help landowners plant riparian trees for shade; placed special focus on grazing and forestry limitations. At the hearing by the State Water Resources Control Board for adoption of the TMDLs, State Board members discussed how to recommend specific increased “flow options” in the Scott River. 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 right adjudications. SOSS (Save Our Shasta and Scott valleys and towns) attorney, Daniel O’Hanlon, cited four legalities during an additional comment period: (1) The agenda did not include flow options; (2) "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 such rights;(3) The Board did 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; and (4) recent legal decisions, the State Board was told to allow for flexibility in implementation of Action Plans and avoid constraints on flexibility.

2006 NCRWQCB REGION-WIDE SWSPP: The North Coast Regional Water Quality Control Board announced that it was developing a region-wide Stream and Wetlands System Protection Policy (SWSPP.) The regional SWSPP will be in addition to the TMDL process for each water body. The policy’s first purpose is to protect the overall hydrologic structure, (stream channels; riparian areas; floodplains, wetlands and the connection between them.) The second purpose is to protect the functions that these physical characteristics perform: filtration, flood water storage, groundwater recharge, distributing river energy and nutrients, fish and wildlife habitat etc. The third purpose is to consider the impacts to these characteristics by all human uses together on a cumulative and watershed basis. Narrative water quality objectives will now be set for hydrology, active channel, floodplains, riparian vegetation and in-stream habitat. SWSPP will aim to maintain soil infiltration of water, prevent excessive erosion or depositing of sediment by encouraging space for river meanders, moderate flows, protect floodplain buffers, establish and maintain riparian vegetation and protect instream habitat. Implementation of the SWSPP will be done on the basis of locally developed watershed plans that propose changes and “best management practices” to avoid, minimize and mitigate negative impacts.  

2006 UPPER KLAMATH PROJECT FARMERS ELECTRICAL RATE INCREASE: Under a 1917 contract that was extended for another 50 years in 1956, farmers within the project paid six-tenths of a cent to run pumps. Irrigation districts and the federal government had five-tenths cent Kwh rates for on-peak pumping, three-tenths cent Kwh for off-peak demands. The 700 ranches beyond the project’s irrigated cropland have since 1956 had a three-quarter cent Kwh pumping charge. Klamath irrigators will now be phased in to the same Tariff rate of 6.98 cents per kilowatt-hour on both sides of the California-Oregon border as other (non-Project such as the Scott and Shasta) irrigators pay. CA will have a four year phase in and OR a seven year phase in of the new rate.

2006 INTERIOR & YUROK AGREEMENT: "The Department of the Interior and the Yurok Tribe of Northern California today announced a major agreement to cooperate in the management of land and fishery resources in the Klamath Basin. This unprecedented agreement will assure the coordination of resource management programs, and expand the cooperation between the Tribe and Interior agencies in river monitoring, data collection, strategic planning, land acquisition and recovery and related natural resource management efforts."

2006 CHINOOK FISHERY CLOSURE: The Chinook Fishery was closed during the summer to commercial fishermen for 700 miles along the Pacific Coast due to decline in chinook fish runs.

2006 PACIFICORP LOSES CHALLENGE TO FISH LADDER REQUIREMENTS: (Dam relicensing DEIS)

2006 KWUA TRADE FOR DAM REMOVAL SUPPORT: Addington, spokesman for the Klamath Water Users Association stated they could support dam removal in the mid-Klamath if irrigators were promised three things in return: (1) Upper Basin farmers need a dependable supply of water each year; (2), they need affordable electrical power to run irrigation pumps; and (3) they need to be protected from harmful sanctions if another endangered species - salmon - was reintroduced to the Upper Klamath Basin.

2007 SHASTA RIVER TMDL ESTABLISHED: TMDLs established for nutrients, low dissolved oxygen and temperature. Lake Shastina included for mercury. Action plans include an increase in riparian shade, minimizing tail water return flows from irrigation users, increasing stream flows from Big Springs Creek by 50 percent, (45 cubic ft./sec. of water used by agriculture reallocated to instream fish production,) individual landowners to report activities, re-engineering or limiting the way irrigation districts take water from the river, and obtaining an engineering study of potential reductions in nitrogen levels at Dwinnell Dam. Notice to landowners to comply. The plan threatened that if Shasta Valley Water Users could not meet the criteria that the board is setting to improve water quality within a five-year time limit, that there is a possibility of re-adjudication of water rights. When it was suggested that the potential for re-adjudication be eliminated from the language in the plan document, North Coast Region executive director Catherine Coleman said, “I don't think we are going to go quite that far.”

2007 CA DFG and CALTROUT INSTREAM FLOWS ON SHASTA RIVER: CA DFG/CalTrout pilot strategy and protocols to establish flow/habitat relationship in order to impose flows through 1602s..They want to "develop the relationship between flow and habitat availability for the different life stages of coho." They will start on a small scale with CDFG, Bureau of Land management and Nature Conservancy lands on the Shasta. Within five years, ultimate plans to do the studies on both the Shasta and the Scott on a watershed wide basis. 

2007 COUNTY ROAD MAINTENANCE (5Cs): County Road maintenance performed under the “Water Quality and Stream Habitat Protection Manual for County Road Maintenance in Northwestern California" acquires protection from take of coho or steelhead under Limit Number 10 of the ESA section 4(d) rule. 

2007 DAM RELICENSING EIS - Final Environmental Impact Statement for Relicensing of the Klamath Hydroelectric Project No. 2082-027 ; PacifiCorp Considers $300M Fish Ladders; NMFS Modified Prescription for Fishways and Alternatives Analysis for the Klamath Hydroelectric Project; Federal licensing authorities Friday recommended keeping PacifiCorp's four hydroelectric dams on the Klamath River, siding with the utility and ignoring calls from fisheries agencies to build fish ladders.

2007 SISKIYOU CO. TAKES POSITION AGAINST DAM REMOVAL:

2007 KLAMATHRIVERKEEPER v. IG HATCHERY: The Klamath Riverkeeper filed suit against the CA DFG and PacifiCorp alleging that discharges from the Iron Gate fish hatchery violated the Clean Water Act.

2007 SUIT FILED ON TOXIC ALGAE: Klamath Riverkeeper, Yurok and Karuk tribes file lawsuit against PacifiCorp claiming damages from toxic algae Microcystis aeruginosa as a hazardous waste caused by the four Klamath River dams. The court gives the North Coast Regional Water Quality Control Board  90 days to reconsider the groups’ petition to include microsystis algae as a water quality impairment and regulate its source. Bobby Kennedy joins Klamath Tribes, fishermen and Riverkeeper in PacifiCorp toxin suit

2007 KLAMATH IRRIGATION DISTRICT  v. UNITED STATES: The U.S. Court of Federal Claims rejects breach of contract claims filed by irrigators for water lost due to court-ordered flows for fish listed under the Endangered Species Act (ESA).

2007 CA FISH & GAME DENIES COHO DELISTING PETITION: The CA Fish and Game commission denies a second petition to delist CA coho based on the allegation that coho is not a native species. Capital Press:  "Buchal stated that coho salmon in the region have come from hatchery-raised fish. Because of drought and flood patterns, and other factors, native coho have not thrived. " "To maintain populations of coho salmon, you have got to run hatcheries," he said. "That is not consistent with self-sustaining, natural populations that can survive. All we are asking is that you accept the petition for full status review, no changes in existing coho protections and to think ---- does it make sense to lock the State of California into a fatally doomed restoration program." "Dr. Kenneth Gobalet, a biology professor at California State University-Bakersfield, buttressed Coupe's remarks and said archeological studies he has done show that coho salmon bones existed in the region. Speaking in a rising tone and visibly shaking in anger that his work on coho populations was being challenged in a fishery publication, Gobalet lashed out at the petitioners. "

2007 - 7,200 ACRES OF AG LAND CONVERTED TO WETLAND: 97,160 acres of agricultural land have already been converted into wetlands from ag as primary water usage (above Klamath Lake.) Another 7,200 acres is added by blowing levees near Klamath Lake.   Explosions Destroy Levee Near Klamath Lake; The average consumptive use for the crop mix in the project is just about 2.0 Acre Feet/acre. Wetlands probably use about 3.0 to 3.5 AF/acre or maybe a little more for permanently flooded wetlands with cattails and tules. So it's a little less than twice but certainly well above the use for crops." (Ref,: Desert Resource Institute, evaporation information.)

2008 LOST RIVER TMDLS: TMDLs established for nutrients and PH. Capital Press:  "The report calls for a 50 percent reduction in nutrient loads and contains more than 65 “recommendations” for irrigators to perform, including schedules and timetables. Some of the recommendations include minimizing use of fertilizers, not discharging irrigation tailwaters into watercourses, lining ditches, building recovery ponds, providing more wildlife habitat, establishing basin-wide monitoring program and stations, establishing a memorandum of understanding with the agency and more. "

2008 PROGRAMMATIC ITP & 1602: The EIR is completed for the Scott and Shasta watershed wide 1602 and coho ITP permits for agriculture.

2008 FERC RELICENSING: Mitigations for protection of upstream and downstream fisheries are imposed on PacifiCorp as conditions of relicensing of the Klamath River dams.

2008 KLAMATH WATER USERS v. FERC: Klamath Water Users Assoc. sues FERC over discontinuance of electrical rate break in the relicensing of the Klamath dams. The federal appeals court dismisses the case.

2008 COASTAL OCEAN FISHING CLOSED: Coastal ocean fishing closed due to crash of Sacramento Chinook salmon runs. Klamath system instream fishing allowed. 

2008 EPA REQUIRES ALGAE TMDL LISTING: The EPA reconsiders its previous decision to allow the state to omit TMDL listing for mycrosystin algae, requiring the state to list portions of the Klamath.

2009 FORMAL STUDY ON HEALTH EFFECTS OF TOXIC ALGAE: Center for Disease Control’s report on health effects of microsystin algae is embargoed. County requests Congressional assistance in getting it released. It shows negligible effects on humans.

2009 ESA VIOLATES ITSELF: There is insufficient water in February (before irrigation starts) to meet minimum lake levels for sucker fish and downstream flows for coho salmon.

2009: PACIFICORP BLOCKED IN GETTING WATER QUALITY PERMIT: PacifiCorp is blocked in attempts to get a 401 Clean Water certification on dams and withdraws application; 401 Scoping

2009 SIERRA CLUB, PCFFA,RIVERKEEPER et al. v. NORTH COAST REGIONAL WATER QUALITY CONTROL BOARD: Environmentalists petition court to require NCRWQCB to adopt a program of implementation for total maximum daily loads ("TMDLs") within the North Coast Region of California, which comprises all basins draining into the Pacific Ocean from the California-Oregon state line to the boundary of the Estero de San Antonio and Stemple Creek in Marin and Sonoma Counties

2009 DEMOLITION ORDINANCE: Siskiyou County Added Title 10 Chapter 13 "Demolition Ordinance" to its County Code.

2010-2018 BoR BIOLOGICAL OPINION

2010 GROUNDWATER ADVISORY COMMITTEES: Siskiyou County added an ordinance to its County Code Title 3, Chapter 19 establishing Groundwater Advisory Committees.

2010 ADVISORY MEASURE ON DAMS: An advisory measure was placed on the Siskiyou County ballot - Should the Klamath River Dams (Iron Gate, Copco 1, and Copco 2) and associated hydroelectric facilities be removed? 79% of voters said no.

2010 CA DFG/RCD's SOLICIT PARTICIPATION IN  PROGRAMMATIC COHO ITP (Incidental "take" permit) [xi] and WATERSHED WIDE 1602:  The new programmatic ITP for theScott River and Shasta River are rolled out. 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. Agricultural water users who have not signed up for the program are visited by armed Fish and Game Wardens to solicit their participation. 

There is considerable local resistance by small landowners against participation in the program and a backlash against CA DFG tactics. Public meetings are attended by cadres of armed Fish and Game Wardens.

Fish and Game Code 1602, (written originally in 1960,) places conditions on anyone who “substantially divert[s] or obstruct[s] the natural flow of, or substantially change[s] or use[s] any material from the bed, channel, or bank of, any river, stream, or lake, or deposit or dispose[s] of debris, waste, or other material containing crumbled,    flaked, or ground pavement where it may pass into any river, stream, or lake…” This used to be called a “streambed alteration permit” and was required for moving material for gravel push up dams. A new interpretation requires the permit for just the "diversion" of water or the mere operation of a headgate - a concrete structure that controls water flow down a ditch. The DFG applies its new interpretation of the 1602 as applying to all surface water irrigation effectively reaching every farm and ranch. It then makes the watershed-wide 1602 conditional upon having an ITP.

[The California Endangered Species Act prohibits anyone from "taking" a state listed species. (Take is defined in Section 86 of the Fish and Game Code as "hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill.") Fines and jail sentences, may be imposed upon individuals who “take” a state-listed species without appropriate permits and without California Department of Fish and Game approval. Violations of the California Endangered Species Act can include a criminal penalty of up to $5,000 and/or one year imprisonment for each violation, and a civil penalty of up to $10,000 for each listed species taken.  

The State of California also allows the DFG to authorize "incidental take" of threatened species as part of an otherwise authorized activity (such as irrigating) through the issuance of a conditional permit to an applicant (such as an irrigator) as long as it does not jeopardize the species. People who are at risk of "taking" a coho at any life stage have to make the decision whether or not they want protection under an incidental take permit.

Fish and Game code 2081. The department may authorize acts that are otherwise prohibited pursuant to Section 2080, as follows: (a) Through permits or memorandums of understanding, the department may authorize individuals, public agencies, universities, zoological gardens, and scientific or educational institutions, to import, export, take, or possess any endangered species, threatened species, or candidate species for scientific, educational, or management purposes.   (b) The department may authorize, by permit, the take of endangered species, threatened species, and candidate species if all of the following conditions are met: (1) The take is incidental to an otherwise lawful activity. (2) The impacts of the authorized take shall be minimized and fully mitigated.  The measures required to meet this obligation shall be roughly proportional in extent to the impact of the authorized taking on the species.  Where various measures are available to meet this obligation, the measures required shall maintain the applicant's objectives to the greatest extent possible.  All required measures shall be capable of successful implementation.  For purposes of this section only, impacts of taking include all impacts on the species that result from any act that would cause the proposed taking. (3) The permit is consistent with any regulations adopted pursuant to Sections 2112 and 2114. (4) The applicant shall ensure adequate funding to implement the measures required by paragraph (2), and for monitoring compliance with, and effectiveness of, those measures. (c) No permit may be issued pursuant to subdivision (b) if issuance of the permit would jeopardize the continued existence of the species.  The department shall make this determination based on the best scientific and other information that is reasonably available, and shall include consideration of the species' capability to survive and reproduce, and any adverse impacts of the taking on those abilities in light of (1) known population trends; (2) known threats to the species; and (3) reasonably foreseeable impacts on the species from other related projects and activities. (d) The department shall adopt regulations to aid in the implementation of subdivision (b) and the requirements of Division 13 (commencing with Section 21000) of the Public Resources Code, with respect to authorization of take.  The department may seek certification pursuant to Section 21080.5 of the Public Resources Code to implement subdivision (b).

2010 FISH AND GAME CODE 5937: In 1915, the California Legislature created Fish and Game Code section 5937, [xii] which requires 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. Under Fish and Game Code 5937, CA DFG installs devices to maximize bypass flows around fish screens to create instream flows for fish. In Scott Valley, DFG shuts water flow off one irrigation ditch without notifying owner causing horses and cattle to knock down fences in order to find water. According to CA DFG representatives (Harris,) the Department’s position is that Fish and Game Code 5937 creates a “vested right” in minimum flows pre-dating any local water rights. [The Rebirth of California Fish & Game Code Section 5937: Water for Fish - "Changing public perceptions of California’s natural resources, including fish, led to the birth of the modern public trust doctrine. The Legislature’s continuing efforts, coupled with the public trust doctrine, began to revive 5937 in the 1970s. Key holdings in early public trust cases reinforced the State’s responsibilities in safeguarding trust resources and broadened private standing to protest violations of the public trust. Courts recognized 5937 as the legislative expression of the State’s public trust obligation to protect below-dam fish.{Cal. Trout v. State Water Res. Control Bd. (CalTrout I), 255 Cal. Rptr. 184, 209 (Ct. App. 1989).}"]

2010 BUTTE VALLEY TMDLS: TMDLs established for nutrients and temperature. 

2010 KLAMATH RIVER (FROM OREGON TO PACIFIC) TMDLS: Total Maximum Daily Load limitations established on the Klamath River from Oregon to the Pacific for nutrients, organic enrichment, low dissolved oxygen and temperature. 

2010 COPCO LAKE, IRON GATE RESERVIOR & MID-LOWER KLAMATH RIVER TMDLS: TMDLs established for Cyanobacteria Hepatotoxic Microcystins (algae)

2010 CLIMATE LEADERSHIP INITIATIVE: Klamath Basin - National Center for Conservation Science & Policy The Climate Leadership Initiative March 2010 Concludes: The presence of a Basinwide governance structure (such as an advisory council) could facilitate cost effective climate change preparation planning. Cross-Basin governance is critical, especially for water, forest, and other resources that cut across multiple political boundaries.

2010 KLAMATH BASIN RESTORATION AGREEMENT: In February 2010, many of the few select participants who had met behind closed doors in the Klamath settlement process signed theKlamath Basin Restoration Agreement (KBRA); and the Klamath Hydroelectric Settlement Agreement (KHSA) to remove four dams on the Klamath River (three are hydroelectric.) This included PacifiCorp, and the States of California and Oregon. (The U.S. Department of Interior (DOI) and other federal agencies await legislative approval from Congress to sign. Siskiyou County and the Siskiyou County Flood Control District did not sign.) A determination has not yet been made whether removal of the four dams: 1) will advance restoration of the salmonid fisheries of the Klamath Basin; and 2) is in the public interest, which includes (but is not limited to) consideration of potential impacts on affected local communities and tribes .(The Klamath Facilities Removal Environmental Impact Statement/Environmental Impact Report - Comments of the County of Siskiyou, City of Yreka, City of Dorris, City of Etna, City of Montague, City of Weed, and Town of Fort Jones (dated November 21, 2011); Dams Not Main Cause of Salmon Collapse, Study Says; Surprising study shows more salmon survive West's dammed rivers; The effect of ocean Conditions on salmon survival and returns

KBRA Governance: Council of Fish Managers -  The agreement would establish a council of “fish managers” drawn from state, federal and tribal agencies.  Over the next 50 years, throughout the “KlamathRiver Basin” or “Klamath Basin,” (which is defined to include  lands tributary to the Klamath River in California and Oregon – excluding the Trinity River,) this council would create and implement plans for fisheries restoration, reintroduction and monitoring. Implementation will be done according to the principles of “Adaptive Management.” The Council would be funded with $493.2 million for the first 10 years and government agencies would agree to reallocate current available restoration funds to this pot of money. Fish species covered would include chinook, coho, steelhead, rainbow trout, lamprey, bull trout, suckers, sturgeon and eulachon.

Klamath Basin Coordinating Council (KBCC): Its purpose is to promote “sustainable restoration and renewal of the Klamath River Basin." It will serve as a FACA (Federal Advisory Committee Act) body that will make recommendations to federal agencies for funding and other actions. The Fish Managers Council will send it annual reports of what it has done with the restoration money. The KBCC will set priorities, share information, seek funding and provide dispute resolution related to the implementation of the Settlement Agreement. The KBCC will operate on a "basin wide perspective for holistic solutions and approaches;" and “no Klamath Basin interest shall bear an unreasonable portion of the burdens imposed."

The interim KBCC will include state, federal, tribal and local governments that are parties to the Agreement. Then a corporate governance Charter will be drawn which will include selected representation from the federal agencies, the two states, Klamath Siskiyou and Humboldt Counties, the Klamath Yurok, Hoopa and Karuk tribes, the “On-Klamath Project” Water users; the Upper Basin “Off-Project Water Users, commercial fishing, and environmental groups. The KBCC will link and coordinate the Settlement Agreement with Biological Opinions, Recovery Plans, watershed working groups and RCDs in the entire Klamath River Basin in a new regional governance structure.

An expert panel of fish scientists hired in connection with the preparation of the DEIS/DEIR (environmental impact statements) reports out that the presumption has been made that the KBRA will accomplish: 13 miles of floodplain rehabilitation; 198 river miles of large woody debris placement; 153 river miles of cattle exclusion; 21,800 acres of acquisitions or conservation easements; improvement of 73 fish passage sites; planting of 346 riparian acres; securing of minimum instream flows for fish (including purchase of water rights); 1,330 miles of road decommissioning and treatment of 240 sediment sources in the Scott, Shasta and other tributaries. It also presumes the conversion of 40% of Upper Basin irrigated farms (44,479 acres) to wetlands. The EIS/EIR fails to analyze the impacts or costs of these actions.

2010 GROUNDWATER LAWSUIT: Environmental Law Foundation, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources vs. State Water Resources Control Board, County of Siskiyou complaint and request for injunction on basis of "failing to manage groundwater resources interconnected with the Scott River in a manner consistent with the Public Trust Doctrine of California Scott River Public Trust appeal attracts more parties to the suit; Board of Supervisor's Statement on the ELF groundwater lawsuit; Siskiyou statement shows intent to appeal Public Trust suit decision; Statement of the Board of Supervisors 2/1/11

2010 KLAMATH RIVER TMDLs (Water Quality Total Maximum Daily Loads): On March 24th, 2010, the North Coast Regional Board approved the TMDLs for the Klamath River in California for Temperature, Dissolved Oxygen, Nutrients, and Microcystin Impairments. On September 7th, 2010, the State Water Resources Control Board (State Board) approved these TMDLS. The California Office of Administrative Law approved the amendment on December 7, 2010.  On December 28, 2010, EPA approved California’s Klamath River TMDLs, in compliance with a consent decree requiring EPA approval by December 31, 2010.  EPA also approved California’s revisions to its site-specific objective for dissolved oxygen for the Klamath River, which was part of the State’s TMDL package and Basin Plan Amendments. (See Klamath Basin Tribal Water Quality Work Group); 

Implementation Plan: Upper Basin: Explore engineered treatment options such as treatment wetlands, algae harvesting, and wastewater treatment systems to reduce nutrient loads to the Klamath River; Complete a water quality study based on best available science to characterize the seasonal and annual nutrient and organic matter loading through USBR’s Klamath Project and refuges; Develop a water quality management plan to meet and/or offset the Lower Lost River and Klamath River TMDL allocations; Process the 401 water quality certification for the FERC relicensing of the Klamath Hydroelectric Project to meet Basin Plan requirements, including Klamath River TMDL allocations and targets; Implement measures to improve the water quality of discharges from the Iron Gate Hatchery to meet TMDL allocations and targets ;

The Regional Water Board shall consider adopting a resolution and accompanying waiver for maintenance of county roads certifying the Five Counties Salmonid Conservation Program (5C Program) if it complies with the TMDL and attains standards in accordance with California Impaired Waters Guidance; CALTRANS Incorporate certain measures into the NPDES Statewide Storm Water Permit and Waste Discharge Requirements for the State of California, Department of Transportation (Caltrans permit) to address sediment sources from road and highway facilities under Caltrans control;

Agriculture: Develop a conditional waiver of WDRs for discharges associated with agricultural activities, including grazing and irrigated agriculture, in the entire Klamath River basin. The conditional waiver shall require compliance with the Klamath River TMDL load allocations where they apply and will serve as the means of compliance with the Lower Lost River TMDL load allocations associated with agricultural sources. Agriculture to: 1. Document past projects and current practices that address sources of pollution from their operations. 2. Organize into watershed groups to report to the Regional Water Board as a group as part of the future waiver program. 3. Participate in the development of the conditional waiver through a Technical Advisory Group that will convene to develop the draft waiver by December 2011. 4. Attend water quality training on implementing management practices and/or water quality management plan development.

The Technical Advisory group for the mid-Klamath indicates that it appears the Region 5 model being applied will subject all irigators to reporting, monitoring, and payment requirements (fee to farm.) Region 5 is an area of intense agricultural practices, high fertilizer use and dairy cows - conditions not present in the mid-Klamath. "The initial high quality of Region 1's surface and ground water would suggest that a very targeted program was called for, not an intrusive program that regulates virtually every farmer and rancher." "Any ag program in Region 1 should be very narrowly tailored to only include those operations where actual data shows and impact to water quality and beneficial uses and where voluntary efforts have proven ineffective."(Walker)

Private Timber lands: The Regional Water Board shall adopt individual watershed-wide and ownership Waste Discharge Requirements,  in lieu of the general WDR or conditional waiver of WDRs, to achieve the TMDL load allocations and water quality standards as appropriate. Implement riparian management measures that meet the riparian shade allocations and water quality standards. Where the Forest Practice Rules, including the Anadromous Salmonid Protection Rules, are not sufficient to meet the TMDL allocations or water quality standards, implement additional measures as directed by Regional Water Board staff during the timber harvest review process. USFS: Develop a conditional waiver of WDRs for nonpoint source activities on USFS lands that includes conditions that implement the Klamath TMDL.

2011 KLAMATH IRRIGATION v. U.S.: Property takings lawsuit against the U.S. for compensation for irrigation water taken in 2001 to proceed. The Klamath Compact states: 'the United States shall not, without payment of just compensation, impair any rights to the use of water for [domestic or irrigation purposes] within the Upper Klamath River Basin.'

2011 WATERMASTER SERVICE: [xiii] Prior to 2004, State watermaster service was funded half through fees from water diverters and half by the state’s General Fund. In 2004, Senate 1107 and the Budget Act eliminated the state’s contribution. In addition, the CA Dept. of Water Resources determined that true costs of the program had not been recovered for more than a decade. As a result, it announced an astronomical rate increase. This was subsequently rolled back and a Klamath Bureau of Reclamation grant took care of the lost state match under normal fees. Locally, this meant that last year there was no increase felt in the diverter’s share of watermaster fees. Through State legislation and the courts, a local watermaster district was authorized. In 2011, there was a rate hike of a  7-8 fold increase to local water users. The fee is collected through property tax rolls for the fiscal year July 1- June 30 and are payable in August. The prior total bill for watermaster service to Shasta River water users was $62,200. This was slated to go up to around $500,000, ( 8.1 times greater.) The bill for Scott Valley services was $22,600. This was slated to go up to $173,000, or (7.7 Times greater.) The local watermaster district was formed. The initial rates have remained high until expenses stabilize.

2011 RANCHER VISITED BY ARMED AGENTS: The Jenner Ranch was visited by a fully armed and "flak jacketed" DFG warden and federal law enforcement agent and were told they were investigating whether or not to criminally or civilly charge them for killing salmon. 

2011 DRAFT DROUGHT MANAGEMENT PLAN: (Pursuant to the KBRA) This plan was created by a group dubbed the “lead entity,” comprised of Klamath Tribes, Karuk Tribe, Yurok Tribe, Upper Klamath Water Users Association, the Klamath Water and Power Agency (KWAPA,) the Klamath Basin National Wildlife Refuges, Oregon Water Resources Department,California Department of Fish and Game, and Trout Unlimited. The plan starts out by designating the Oregon Water Resources Department (OWRD) as responsible for declaring a drought. The National Fish and Wildlife Foundation (NFWF) is designated to hold the project funding purse. (NFWF is a non-profit, originally created by Congress.) Under the KBRA, the agencies agreed to redirect some of their funding in their budgets to the NFWF fund for Klamath restoration. This will be used to fund the Drought Plan. NFWF will also be made a part of the “lead entity.”

The Drought Plan would reduce diversions or use of surface water so that instream flows can be maintained. The fund would be used to compensate users for their loss. KWAPA would distribute money on the Klamath Project and a federal agency designated by NFWF would distribute the money off-Project.

In addition, a TAT or Technical Advisory Team will be given a federal charter. The TAT will consist of representatives from the U.S. Fish and Wildlife Service; Bureau of Reclamation; Bureau of Indian Affairs; NOAA/National Marine Fisheries Service; USDA; three State of Oregon agencies; California Dept. of Fish and Game; the Klamath, Yurok and Karuk Tribes; Humboldt County; KWAPA, a representative of off-Project irrigators; a representative of conservation groups; and a representative of commercial fishing interests. The TAT will create an Annual Water Management Plan and provide recommendations to the Secretary of the Interior concerning “Managed Environmental Water,” storage and releases down the Klamath River at Link River Dam. The TAT will also make recommendations to the State of Oregon on drought conditions.

Within seven days of a declaration of Drought or Extreme Drought, KWAPA and a NFWF designated federal agency will determine the amount and sources of water likely to be available. The TAT will develop alternative water management scenarios to protect species of concern. Actions such as voluntary conservation, use of “new” stored water, use of groundwater substitution, water transfers and leasing or forbearance agreements could be used. A sliding scale of diversion limitations, water use retirement provisions and land idling could be used so that water can be managed whereby “no Klamath Basin interests bear an unreasonable portion of burdens imposed.”

In the case of “extreme drought, under Alternative 1, the “Fish Managers,” (Klamath Tribes, Yurok Tribe, Karuk Tribe, California Department of Fish and Game, Oregon Department of Fish and Wildlife, U.S. Fish and Wildlife Service, and the National Marine Fisheries Service,) will have the power to reduce the water available for diversion in the Klamath Basin from March – October. Under Alternative 2, the amount of diversion reductions will be deferred until more information is known about the status of fisheries restoration, water quality improvement, and other actions in the Agreement.

2011 WaterSMART: Pursuant to the 2009 federal Secure Water Act, the Bureau of Reclamation has included the Klamath River system in its WaterSMART (Sustain and ManageAmerica’s Resources for Tomorrow) program. ( Section 4(a) of Secretarial Order 3297 creating WaterSMART ) "Bureau of Reclamation, Oregon’s Water Resources Department, and California’s Department of Water Resources are partnering to conduct the Klamath River Basin Study to identify strategies to meet current and future water demands in the Basin." (See also Basin Study Framework;  DOI WaterSMART Strategic Implementation Plan; Cooperative Watershed Management Program authorized by the Omnibus Public Land Management Act of 2009, P.L. 111-11 , which brings together local watershed stakeholders to design and implement projects that enhance water conservation, improve water quality, increase ecological resiliency, and reduce the potential for water conflict. This program will include DOI bureaus as well as state and local governments and other interested entities.)

"Employing broad stakeholder involvement, the Klamath Basin Study will accomplish the following objectives: • Evaluate supply and demand imbalances in the basin which may be exacerbated by climate change; • Identify possible impacts to the Basin’s agricultural water requirements, hydroelectric facilities, recreational facilities, fish and wildlife habitats, flood control facilities, and water storage and distribution facilities; and  • Develop both structural and non-structural adaptive strategies to balance supplies with demands.Stakeholder involvement in the Study includes a broad spectrum of Klamath tribal governments, water user groups, agriculture associations and environmental interests."[ Additional inormation about the Secure Water Act.)

The study’s conclusions will fulfill a small section of the Klamath Basin Restoration Agreement, which says signatories — including Oregon, California, U.S. Department of the Interior and U.S. Bureau of Reclamation — will work to identify and mitigate the effects of climate change.

2011 INSTREAM FLOWS FOR FISH: The CA Department of Fish and Game (DFG) announced that it would issue a Request for Proposal (RFP) to establish minimum instream flows for fish needs in the Scott and Shasta Rivers. The Instream Flow Incremental Methodology (IFIM) process will have five steps. http://www.fort.usgs.gov/Products/Software/IFIM/  The first step is problem identification and diagnosis. It also includes identification of “stakeholders” with an interest in flows for fish. This initial step includes the establishment of “baseline” data, identification of data gaps and timelines. The second step is the study plan and objective, including identification of the fish species of interest and the life stages at issue. The third step in implementation of the study. The fourth step is analysis and the fifth step is resolution or recommendation. 

The first two steps will be done using the “Structured Decision Making Process” (SDM.) http://structureddecisionmaking.org/ This collaborative process includes three parts: a facilitator; an “Expert Science Team” or EST (composed of tribal, State and federal “resource specialists,”) and a Stake Holder Committee or  SHC comprised of landowners, environmental groups and other interested parties. The facilitator will reach out to identify the SHC members. The role of the SHC will be to establish technical qualifications for experts and nominate and review candidates to be their representatives on the EST.  

The facilitator will use a consensus process to manage relationships between the SHC and EST, including the task of problem identification. The EST will review the data and research and come up with specific recommendations on technical approaches, implementation strategies and timing for the study planning. Specific work products will be adopted through a facilitated consensus between the EST and SHC.

2011 PROPOSED FEDERAL COHO RECOVERY PLAN: The proposed plan is poorly crafted. It identifies agriculture as a "very high" threat to threatened coho salmon on the Scott and Shasta rivers. The plan calls for cutbacks on Scott and Shasta farmers' stream water use as well as establishing statewide groundwater permitting programs. There's also litany of habitat restoration efforts including planting more trees along streams, adding gravel to the streambeds to improve salmon spawning areas, limiting road run off and removing barriers for passing fish. Among other things, the plan identifies "ephemeral" streams or arroyos with historically documented intermittent flows as having "intrinsic potential" for fish. This results in a substantial overstatement in the expectation of potential fish production goals. (Siskiyou County comments on proposed NOAA recovery plan for coho salmon.)

2011 LAWSUIT TO KNOCK DOWN THE PROGRAMMATIC ITP:   A successful lawsuit filed by Klamath Riverkeeper, Quartz Valley Indian Reservation  and other fishing and environmental interests stopped the programmatic ITP permit process on the basis that it was too lenient. Many water users also opposed the permit and refused to participate in the program because it was too restrictive and took property in water without compensation. Individual ITPs and 1602s may be acquired. 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.

2012 HOOPA TRIBE PETITIONS FERC: The Hoopa Tribe has petitioned FERC to re-assert jurisdiction over the Klamath Hydroelectric Dams and their relicensing or removal. In the petition the Tribe asks FERC to issue a Declaratory Order: “(a) finding that the license applicant, PacifiCorp, has failed to diligently pursue re-licensing of the Klamath Project; (b) ordering PacifiCorp’s re-license application dismissed; and (c) directing PacifiCorp to file a plan for decommissioning of Project facilities.”

2012 KARUK TRIBE SCOTT RIVER GROUNDWATER: The Karuk Tribe does its own groundwater model of the Scott River Valley. (Does not have the detail of Dr. Thomas Harter's model.) The Tribe announces that their study shows an increase in groundwater pumping for agriculture and indicates this is impacting river flows and fisheries. The tribe indicates that it will form a technical work group and develop a restoration plan for the area. (The Scott River is not in their tribal; territory and they have no jurisdiction in the area.)

________________________

[i] California has a dual system of water rights that blends civil law with common law. The gold fields of California continued the law established under Mexican rule of "first in time, first in right." Appropriative rights were acquired by "possession" through "posting and recording notice of intention to divert a specific quantity of water, actual diversion and application of water to beneficial use with reasonable diligence, continued exercise of the right, priority of time of initiating the appropriation, and doctrine of prior appropriation of water for beneficial use." (Wells A. Hutchins in Water Rights Laws in the Nineteen Western States, pg. 161) The 1851 California Practice Act affirmed mining customs and usages.

However, in 1850, California had also adopted the common law of England so far as not repugnant to or inconsistent with the Constitution of the United States or laws of the State; (Ca. Stats. pg. 219.) This included the English doctrine of riparian rights. Riparian lands are those contiguous to a stream. Riparian rights include natural use/domestic purposes (household, garden, barnyard) and artificial use/commercial purposes (watering of commercial herds, irrigation of commercial riparian farmland, power, recovery of gravel.) Riparian users share water "correlatively" or equally.

Most western states use just the Doctrine of Appropriative Rights. Most eastern states use just English common law as regards water rights. The "dual system" in California has blended the two systems. Because of its early and rapid settlement, most "appropriative rights" were acquired while land was still in the public domain. Under the "Doctrine of Presumption," it was presumed by the CA Supreme Court, that absent specific legislation, everyone who wished to "appropriate" water or to dig gold on the public domain within California could do so. Ownership of a water right "as a substantive and valuable property" was held to be "distinct sometimes, from the land through which it flows." [Conger v. Weaver, 6 Cal. 548, 555; (1856);McDonald v. Bear River and Auburn Water and Min. Co.. 13 Calif. 220, 232; (1859).] Until transfer of title from the public lands to private ownership could be made through patent, the "right of possession" and priority of use, determined the right of ownership in water use, mineral extraction, range use, rights-of-way, entry and homesteading of land as between individuals. This right was considered perfect against any claimant but the U.S.[Palmer v. Railroad Commission, 167 Calif. 163, 168, 138, 170-173, 138 Pac 997 (1914.) With no formal act of control by Congress over the public domain, the courts accepted inaction by Congress as a "period of silent acquiescence" or tacit consent [ Forbes v. Gracey, 94 U.S. 762, 763, 766-767 (1877.)

Later, the court ruled that the United States had formally accepted the appropriative invasion of its riparian title through the Mining Acts of 1866 and 1870, and the Desert Land Act of 1877.  Riparian rights did not attach to land owned by individual owners until the land was formally patented. The owner then took title to the land subject to these previously acquired appropriative rights. (Duckworth v. Watsonville Water & Light Co., (150 Calif. 520, 525, 528-529, 531 89 Pac. 338 (1907); San Joaquin & Kings River Canal & Irr. Co. v. Worswick, (1922);Duckworth v. Watsonville Water & Light Co., 170 Calif. 425, 432, 150 Pac. 58 (1915); 1921 Holmes v. Nay, 186 Calif. 231, 234-235, 199 Pac. 325.)

[ii] One of the basic doctrines of English law received by the United States was "that the king is bound by his own and his ancestors' grants; and cannot, therefore, by his mere prerogative, take away vested rights, immunities or privileges." (Chitty's Prerogatives of the Crown, page 132.) Barring specific reservation and subject to pre-established servitudes, a government land patent to an individual vests legal title and right to the located property to the extent it was held by the State or United States. It is considered in the nature of a compact and is an executed contract. It is a covenant that cannot be resumed, annulled or later modified by the grantor through legislation or otherwise. [A right vested, cannot be divested. Cited, 2 Dall. 297, 304; 9 Cranch 52; Green v. Biddle, 8 Wheat. 1; Fletcher v. Peck, 6 Cranch 136.] By such grant, the property interest of the grantor is extinguished. The title passed is subject or subordinate only to the legitimate exercise of the police and eminent domain powers delegated by the body politic to government. (The early cases of Fletcher v. Peck, New Jersey v. Wilson, and Dartmouth College v. Woodward also established that the States could not "impair the obligation of contracts" by attempting to repeal or modify acts which had already created vested rights.)

[iii] In 1921, San Bernardino v. Riverside (186 Calif. 7, 29-30, 198 Pac. 784,) the court specifically stated that the 1911 amendment did not apply to private water use rights already vested:

In 1914 Palmer v. Railroad Commission, 167 Calif. 138, 163, 168, 170-173, 138 Pac. 997, the Court again ruled that this Amendment was not and could not be retroactive and could not operate to divest private property rights already vested at the time it was enacted. The only effect it could have would be as a dedication to the general public use of any riparian rights which the State at the time it was enacted might still have retained by virtue of its ownership of lands bordering upon a stream.

[iv] In 1939 Meridian v. San Francisco (13 Calif.-2d-424, 445, 449, 90 Pac.-2d-537,) the court clarified the assertion of State control over allocation of surplus or public waters of the State under the 1914 Water Commissions Act stating:

[v] The Court ruled in Acton v. United States, 401 F.2d 896 (9th Cir. 1968), cert. denied, 395 U.S. 945 (1969) that no property rights accrued to a licensee upon revocation which are compensable in condemnation.

[vi] Under the California Land Settlement Act of 1851, "each and every person claiming lands in California by virtue of any right or title derived from the Spanish or Mexican government" was required to submit a claim to a three-person commission or tribunal. This commission investigated claims to land, and made a determination of their validity as respected the United States. Act of March 3, 1851, ch. XLI ' 8, 9 Stat.631.(See  California Powder Works Co. v. Davis , 151 U.S. 389 (1894)  This provision was interpreted to include Indian tribes. In 1900, the Supreme Court affirmed a California court's confirmation of title of non-Indian claimants against Mission Indians claiming a right of permanent occupancy to the same lands. In Barker v. Harvey, 181 U.S. 481 (1900), the Supreme Court indicated that the Indian right of occupancy should be considered as a "right or title derived from the...Mexican government" even though that right may have antedated the establishment of the Mexican government. The Indians' right of occupancy was deemed abandoned for failure to present it to the land claims commission. Twenty-four years later, the Supreme Court declined to overrule Barker because of the unsettling effect it would have upon property titles in California. United States v. Title Ins.& Trust Co., 265 U.S. 472, 486 (1924). See also   Summa Corp. v. California Ex Rel. Lands Comm'n, 466 U.S. 198 (1984) As a consequence of Article VIII, some Mexican land grants to "pueblos" or Indian cities were recognized by the lands commission.

[See Kappler on Indian Land Tenure particularly " LIMITATIONS ON INDIAN RIGHT TO OCCUPANCY AND POSSESSION OF LANDS IN CERTAIN PARTS OF UNITED STATES." excerpts: Hayt v. United States, et al. (38 Court of Claims, 455-460-465) "...the King of Spain made no concessions respecting Indian titles in Mexico, but claimed the whole country for his own; that this claim by virtue of conquest was maintained until Mexico acquired its independence and that Government in turn never acknowledged the existence of aboriginal title. The significance of the proposition is that if the Indian title to occupancy was never recognized by Spain and Mexico the title acquired by the United States was obtained free of encumbrance by virtue of previous Indian occupancy." "...as for Mexico, neither the researches of counsel nor the investigation of the court disclose recognition of aboriginal title by that Government."] See also  Tee-Hit-Ton Indians v. U.S., 348 U.S. 272 (1955.)

The United States has accepted the fact that it long ago acquired the lands of the California Indians, extinguishing their Indian title. The Jurisdictional Act of May 18, 1928, 45 Stat. 602, authorized the attorney general of the state of California to bring suit in the Court of Claims on behalf of the "Indians of California" for claims they might have against the United States "by reason of land's taken from them in the state of California by the United States without compensation . . .," any decree to be based upon the compensation proposed in certain ratified treaties of 1851-1852. Section 3 of that act provides: "Any payment which may have been made by the United States or moneys heretofor or hereafter expended . . . for the benefit of the Indians of California, made under specific appropriations for the support . . . of Indians of California, including purchases of land, . . . may be pleaded by way of set-off`."

"The Court of Claims decided October 5, 1942, that the California Indians were entitled to recover as compensation the sum of $10,648,625, for 8,518,900 acres taken, less $764,033.50 for lands "set aside by the United States for the plaintiff Indians as reservations and otherwise, by Executive Orders, Acts of Congress . . ." 98 C. Cls. 583, Cert. Den. 319 U.S. 764, 102 C. Cls. 837. The court held that whatever lands those Indians may have held "became a part of the public domain . . ." because the Indians did not qualify before the Commission set up by the Act of March 3, 1851 (9 Stat. 631) to settle private land claims in California. (p. 592) (According to an article by Professor Edward D. Castillo, $17,053,941.98 was offered in 1944 minus deductions for costs. There was a distribution to 36,000 eligible Indians in California in the amount of $150. This was in reimbursement for the unratified treaty lands promised to Indians.)  

"It will be noted that this action in favor of the California Indian's is not a payment for money due the Indians, since the basis of the litigation and judgment is that these Indians lost their rights by reason of laches. Nor did this involve all lands of the California Indians. The payment is in the nature of a gift, equitable because the United States Senate failed to ratify an agreement with the Indians concerning those particular lands. The claims of the California Indians, based upon aboriginal title, is now in process of litigation. This suit also is based upon acquisition of the Indians' lands by the United States."

According to the Castillo article, the suit precipitated the creation of the federal Indian Claims Commission in 1946 for the purpose of seeking compensation for lost tribal lands. [Claimants had 12 years to file, after which suit was to be barred by the federal statute of limitations. Once claim was settled, according to a 1985 decision of the U.S. Supreme Court regarding the Shoshones, [ Northwestern Bands v. U.S.  324 U.S. 335 (1945),] further claims to regain possession are barred.] By August of 1951, twenty-three separate petitions had been filed by attorneys on behalf of tribes in California. These were consolidated and a settlement of $29,100,000 was offered. In 1964 the offer was accepted and in 1968, about $600 was distributed to nearly 65,000 Indians in California. This was in reimbursement for non-treaty  land claims that were not already settled  [It should be noted that interest was not allowed on compensation claims if they were just an "aboriginal title" and not a "recognized title" secured by treaty.]

See Solicitor's memo 8/1/1960 suit in the Court of Claims on behalf of the "Indians of California" for claims they might have against the United States "by reason of land's taken from them in the state of California by the United States without compensation . . .,"

[vii] Memorandum Regarding the Power of the President to Set Aside by Proclamation or Executive Order Public Lands for Indian Reservations and Other Public Purposes, and the Right of the President to Revoke Such Order

[viii] In Hynes v. Grimes Packing Co. , 337 U.S. 86 (1949) the Court stated: "An Indian reservation created by Executive Order of the President conveys no right of use or occupancy to the beneficiaries beyond the pleasure of Congress or the President. Such rights may be terminated by the unilateral action of the United States without legal liability for compensation in any form even though Congress has permitted suit on the claim. Sioux Tribe v. United States, 316 U.S. 317 ; see United States v. Santa Fe Pacific R. Co., 314 U.S. 339 , at page 347, 252. When a reservation is established by a treaty ratified by the Senate or a statute, the quality of the rights thereby secured to the occupants of the reservation depends upon the language or purpose of the congressional action. Since Congress, under the Constitution, 3 of Art. IV, has the power to dispose of [337 U.S. 86 , 104] the lands of the United States, it may convey to or recognize such rights in the Indians, even a title equal to fee simple, as in its judgment is just. Shoshone Indians v. United States, 324 U.S. 335 , 339, 340, 692, 693. When Congress intends to delegate power to turn over lands to the Indians permanently, one would expect to and doubtless would find definite indications of such a purpose."

[ix] Winters v. United States (207 U.S. 564 (1908) Reserved Water Rights. Winters Doctrine. The Court upheld the power of the federal government to exempt waters from appropriation under state water law, and held that the government had in fact reserved the waters of the Milk River in order to fulfill the purposes of the agreement between the Indians and the United States. The case dealt only with current needs and did not address the future needs of the Indians. Skeem v. United States, 273 F. 93 (9^th Cir. 1921)(applying Winters Doctrine to allotted lands:)

“Reserved” water rights are unlike riparian rights or prior appropriation rights, although they contain elements of both. For example, like riparian rights, reserved rights are appurtenant to land; that is, land ownership is the basis of the right. Also like riparian rights, reserved rights are not lost by nonuse. But reserved water can be used on nonriparian lands. And like prior appropriation rights, reserved rights have priority dates which reflect the security of the right. . . . However, the priority date for reserved rights is the date of the reservation or earlier, not the date of diversion, as in the case of most appropriation rights.'

The chief characteristic of reserved rights is that they are federal rights, grounded on the (mostly implied) intent of the federal government to reserve water for its purposes. This characteristic serves to distinguish reserved rights from both prior appropriation and riparian rights. [In Re: The general Adjudication of all rights to use water in the Big Horn System and all other Sources, State of Wyoming Case Number: 00-296 Decided: 06/14/2002]

[x] "Federal nexus" - Federal Endangered Species Act Section 7 - federal agency funds, authorizes or carries out the program or project. Federal agency determines effects. Federal agency consults with USFWS. Trigger "may effect" determination. USFWS writes concurrence letter or biological opinion. Non-federal entity involved in program or project follows conservation measures provided by federal agency.

[xi] Under the California Endangered Species Act (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.

[xii] Fish and Game Code 5937: "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. During the minimum flow of water in any river or stream, permission may be granted by the department to the owner of any dam to allow sufficient water to pass through a culvert, waste gate, or over or around the dam, to keep in good condition any fish that may be planted or exist below the dam, when, in the judgment of the department, it is impracticable or detrimental to the owner to pass the water through the fishway. "

[xiii] Watermaster service is required under the Shasta River (water) Adjudication. Under the Scott River Adjudication, Shackleford, French Creek, Oro Fino, Sniktaw and Wildcat Creeks are watermastered, but not the mainstem Scott. Water adjudications result in a “decree” of the Superior Court finalizing the priority, quantity, point of diversion, season, purpose and place of water use for every water use right claimant in the system. The watermaster service assures that the adjudicated amounts are fairly distributed among water right owners according to the court decree. The watermaster is an officer of the court.

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