May 25, 2005 Vol. 32, No. 31 Page 6, column 1

 Big decision for ranchers

-- Coho salmon regulations will affect irrigators.

-- Options are available, but may not be easy.

-- "Coho hell" continues.

By Liz Bowen, Rancher editor, Pioneer Press, Fort Jones, California

SCOTT VALLEY, Calif. – Agriculture has always been a risky business. But increased regulations from the state government may make farming impossible in major areas of Siskiyou County, California.

Most of those regulations have been pushed and demanded by lawsuits from Green enviro advocates; and the state agencies have bowed.

The non-profit organizations of Sierra Club, CalTrout, Klamath Forest Alliance, Pacific Federation of Coastal Fishermen and others browbeat the California Fish and Game Commission into listing the coho salmon with the state Endangered Species Act (ESA).

This reporter attended the California Fish and Game Commission meetings and saw first-hand the politics played at the expense of using correct information or data. It is not about the coho, but how to regulate water.

For instance, at the end of the day-long discussion on listing the coho salmon in August of 2002, the Commission was hesitant to vote. Then a lawyer from Sierra Club stood up and threatened the Commission with a lawsuit if the commissioners did not vote his way. President Michael Flores called a recess and cell phones flew open, groups of advocates met with individual commissioners and when the Commission meeting resumed, the vote was 4-1 to list. Flores was the only "no" vote; and he paid for it in the next few months as accusations against Democrat Flores were thrown by the heavy weights of the enviro community.

Through the efforts of timber, Farm Bureau, California Cattlemen’s Association, Save our Shasta and Scott Valleys and Towns coalition (SOSS), Siskiyou County and other entities, the once-only used Recovery Strategy Plan code was invoked by the Commission. This slowed the actual listing process, because it took more than a year to develop a Recovery Strategy Plan – one for the state and one for Siskiyou County. Unfortunately, the state plan overruled the county plan and placed increased regulations on agriculture and timber practices.

Presently, the timber industry has stated the increased regulations will cost more than $38 million. Tom Nelson from Sierra Pacific Industries told those at the May 9, 2005 SOSS meeting that timber cannot live with the strangling regulations and is considering a lawsuit.

In February 2004, after a morning of testimony by timber, agriculture and even construction unions against the state Recovery Strategy Plan the Commission still voted to accept the state committee’s Recovery Strategy Plan. In June of 2004, the Commission voted to stall the listing. At that time, state legislators, mostly from San Francisco, threatened individual commissioners -- like the newly governor-appointed Republican Marilyn Henderson -- if they didn’t vote to list the coho. Henderson had one year to be ratified by the state legislature, which is still led by a majority of Democrats. The very-real threat was that she wouldn’t be ratified by the legislature.

In a surprise last-minute-agenda-added item for the August 2004 Commission meeting, the Commission voted to finalize the listing of the coho. The vote by the Commission, which now had an additional Republican on the board, was four "yes" votes with Flores abstaining.

Back in 2002, Flores had been brought up by SOSS to view the cutting-edge projects by irrigators to enhance and improve coho habitat. He was converted to the sincerity of the landowners to aid fish -- after all farmers and ranchers like to go fishing too.

Politics from the enviro advocates saw that they won the coho battle -- of what the lead Fish and Game Department attorney, Michael Valentine, once referred to under-his-breath as "coho hell." Valentine is no longer with the Department of Fish and Game. "Coho hell" may have worn him out as much as it has others in the coho battle.

Permits are needed as a possible protection

So under the ESA regulations, agricultural practices are threatened, because of regulations that will now demand more water for the fish.

Each landowner that irrigates with diversions of surface water from streams that coho salmon inhabit, has some big decisions to make. What level of risk can he or she handle?

First off, understanding the situation is a must. But it isn’t easy, because the issues are varied, conflicting and downright confusing.

An informational meeting was held by the Siskiyou Resource Conservation District on May 19, 2005. President, Bill Krum, and Senior Project Coordinator, Gary Black, presented detailed aspects regarding a possible permit that will protect irrigators.

"It’s not real pretty," summed up Black as he began his part of the discussion on an agricultural permit. The learning curve has been "straight up," he said.

This is the first time the State of California Department of Fish and Game has worked with Resource Conservation Districts in trying to create an Incidental Take Permit, called ITP, which will offer protection for an entire watershed.

Normally, an ITP is written for one individual doing one project.

In this instance, under the California ESA regulations, "Take" refers to the "killing or injuring" of coho salmon, which were officially listed on March 30, 2005 with the California ESA, according to Craig Martz, a regional Fish and Game official.

So far coho have not been illegally killed, but the state Fish and Game Department is now in the process of establishing regulations that will protect the coho. Juvenile coho are presently emerging from eggs spawned by returning adults last December and January.

Huge coho run in the Scott River

Ironically, it was the largest run of coho salmon on record in Scott Valley. More than 1,500 coho swam up the Scott River into its upper-most reaches and connecting streams, than ever imagined. One-inch and two-inch long baby coho will be plentiful this spring.

President Krum explained that in obtaining an ITP, mitigations are developed that will make the potential loss of any coho less severe. In the developing this unusual draft permit application, local leaders have discussed the agricultural situations with officials of the Fish and Game.

But the Fish and Game has mandates it believes must be met. So to that end, the Fish and Game has proposed difficult measures on irrigators.

According to the draft ITP application, which the Siskiyou RCD submitted to the Fish and Game there are a variety of mitigations that will be expected.Those include:

-- Improve spawning habitat;

-- Improve summer rearing habitat, including deep pools, colder water and shade;

-- Access for officials to conduct monitoring and research;

-- Alternate water for livestock in the fall and winter.The RCD also believes there is a need to create a water trust, where a water right holder can send his water downstream when coho need it – and be paid for this legal water right adjudication allotment – because the water right is a property right.

A plan for a drought year also needs to be developed.

"How are we going to live in a watershed with and Endangered Specie?" Black asked. "I think that is going to be a very tough issue."

1602 permits have changed from 1603s

Krum explained that there is a separate issue of 1602 permit notices. The RCD is trying to develop some basic aspects for landowners to use, when notifying the Fish and Game Department of the need for a 1602 permit.

In the past, these permits pertained to the "significant" need to alter the streambed, in order to get water to go down a diversion such as a ditch. Also in the past, using machines like a back hoe to do this work, usually was considered "significant" and a 1603 permit was needed.

Since the listing of the coho with the state ESA, the Fish and Game is now considering any use of a water right allotment as "significant."

This may be the first lawsuit.

Not being able to obtain what is a California law legal water right allotment may become the first fight against the new definition of 1600 permits. Under past court decisions, a water right is considered a property right. Under the Fifth Amendment of the U.S. Constitution, the taking of a property right must be compensated.

It is still not known if the Fish and Game will honor past 1603 permits that were open-ended or have not met the final date. Many agricultural 1603 permits were open-ended or issued in five or ten year cycles.

Now the Fish and Game is saying the 1603 permits are going away and all irrigators of surface diversions will have to get a new 1602 permit. Unfortunately, the term "significant" is ambiguous and the definition has been changed. Whether this is a bluff or not, may not be known until an irrigator chooses not to get a 1602 and is eventually cited by a Fish and Game warden. At the time, the case will be heard in Superior Court, with the Siskiyou County District Attorney prosecuting the case.

Notice of Intent provides immediate protection

Krum told the group of 70 landowners that approximately 60 letters of Notice of Intent had been sent out by the Fish and Game this spring. Then Fish and Game Martz said that the California Director of Fish and Game, Ryan Broddrick, told the game wardens that those who sign the Notice of Intent will receive some protection from citations this year.

The Notice of Intent states that the landowner is considering participation in the watershed-wide Incidental Take Permit and of obtaining a 1602 permit. And will abide by actions that may reduce a "Take" of coho.

Because the RCDs in both the Scott and Shasta Valleys became the only identities to serve as holder of the ITP, the leaders have worked with Fish and Game to develop the draft ITP applications. Krum said that both RCDs reluctantly agreed to serve as holder, because RCDs work to aid landowners in conservation projects and is not a regulatory entity.

It also must be noted that developing an ITP and or 1602 permit now includes the need for an Environmental Analysis and in many cases the costly expense of a CEQA, called California Environmental Quality Act.

"We haven’t found the funding yet," said Krum, "we are looking for $200,000 or more," just to do one CEQA."This looks like a sales program and honestly it’s not," said Black of the presentation.

The meeting shared information that Krum and Black have learned in trying to develop a watershed wide ITP and 1602 notification process. It is complicated and will be expensive. But one of the advantages to signing on to either the Scott Valley ITP or the Shasta Valley ITP is a reduction in costs.

For a farmer or rancher going it alone, the cost of CEQA will still apply, although it may not cost as much as $200,000. Currently, the price of biologists to create a basic CEQA is a minimum of $35,000.

Anyone who needs a 1602 will also have to pay the price of that permit, which was said to run $5,000.

Comments from landowners

John Menke, a rancher and past professor at University of California at Davis, has been attending what are called TMDL meetings, which are led by a different state agency called North Coast Regional Water Quality Control Board. He is digested with government officials that are not experienced in forestry or natural resources deciding what is important to improve a river’s quality.

"We got some dirty tricks going on," said Menke.

Greg Farnam, who has a 1890 water right, told Fish and Game officials that they "haven’t came up with how many fish will make you happy."

He added that if the ability to do agriculture is taken away, "we can subdivide the land and it will look like L.A." and will create even more water problems.