- a weekly column published in the Pioneer Press

According to a recent letter sent to agricultural irrigators by the California Department of Fish and Game (CDFG,) coho salmon was finally listed as a threatened species by the State on March 30, 2005. As it has been listed by the federal government since the late 1990s, one might believe that this is no big deal. Unfortunately for many direct diverters, this may not be the case.

Section 2080 of the Fish and Game Code prohibits "take" of any threatened or  endangered 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." I am not a lawyer, but it would seem to me that if an irrigator’s action could be shown to have resulted in capturing or killing a coho – egg, juvenile or adult, a case could be made for a prohibited “take.” It would seem that cows walking across a redd (or fish nest,) juvenile fish trapped by a diversion structure or irrigation that could be linked to dewatering of a stream would be likely candidates for a prohibited “take.” http://www.dfg.ca.gov

The potential State penalty for “taking” a coho is up to a $5,000 fine or no more than one year in County jail or both. (Criminal penalties of up to $50,000 or imprisonment for one year, or both, and civil penalties of up to $25,000 per violation, may be assessed for a federal violation.) It would seem wise for every diverter or person who works in or on the banks of our rivers to look at their operation and assess their risk of “taking” a coho.

Steps should first be taken to avoid the possibility of any take. If take can’t be avoided, then folks might consider obtaining an “incidental take permit” (ITP.) The ITP allows people to continue to do an otherwise legal activity, like irrigate, subject to conditions to minimize and fully mitigate (compensate for) any killing of coho.

For well over a year, the Siskiyou and Shasta RCDs, (Resource Conservation District,) have been working on an application for a “programmatic” ITP. This identifies many of the agricultural practices that could result in a prohibited take and outlines the steps that should be taken to minimize and fully mitigate any potential take. Individual agricultural landowners in the Scott and Shasta valleys can choose to sign up under the RCD’s permit, agree to the conditions and avoid having to go through an individual permit process.

The individual permitting process can be time consuming, and extremely expensive with CEQA (California Environmental Quality Act) review requirements. Operations causing prohibited take may also have to be halted until the permit is acquired. Unfortunately, many agriculturalists along the Klamath and Salmon Rivers and non-agriculturalists will have to go through the process individually.

The programmatic ITP is cutting edge in the State of California. The crafting of this application has not been an easy task and your RCD directors should be applauded for their tireless efforts. The success of this program could be replicated in many other agricultural areas of California

The State also has another requirement that has come into play along with the Endangered Species Act. This is the requirement for streambed alteration agreements, (Fish and Game Code Sections 1600-1616.0.) These agreements are required of 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…” The 1602 (formerly 1603) agreement requirement has been around for many years. According to a recent March 16 letter sent out to diverters from the CDFG, there are many local people who require these agreements for their activities who do not currently have them. There is a fee for these agreements, and the process (involving CEQA) is time consuming and expensive. The RCDs have also negotiated a watershed–wide 1602 agreement that is available. Agricultural diverters may select to obtain their agreement on their own or choose to participate in the watershed-wide agreement through the RCD.

For more information on the ITP or 1602 call Caitlin Bean at CDFG (530) 225-2273 or the Siskiyou RCD (Scott Valley) at (530) 467-3975.