| The California listing of coho salmon as a “threatened”
species was effective on March 30 of this year. As of that date, it became illegal to
"take" a coho – egg, juvenile or adult. Take is defined in the Fish and
Game Code as "hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue,
catch, capture, or kill." The potential State penalty for take is up to a $5,000 fine
or no more than one year in County jail or both. http://www.dfg.ca.gov There
is, however, a way to obtain a sort of insurance policy to cover activities that are
“otherwise lawful,” but that may run a risk of accidentally killing a coho. (An
example might be diverting water under an adjudicated right.) This “insurance policy”
is called an incidental take permit – or ITP. First of all, the permit holder must
agree to take steps to avoid and minimize any take. The participant must also fully
mitigate impacts or “make fish” by improving conditions to compensate for fish
that could be taken.
For more than a year, the Siskiyou RCD has been hammering out a
“programmatic” ITP to cover
agriculturalists who divert water and conduct farming practices on the Scott River and its
tributaries. This “programmatic” approach is the first of its kind in the state
of California. The RCD is offering landowners the option to participate in the
programmatic ITP as an alternative to the individual ITP processes. Participation is
entirely voluntary.
The DFG (Department of Fish and Game) has now accepted the RCD’s
application as complete. Once funding is secured, the umbrella application may proceed
through the public CEQA (California Environmental Quality Act) process. (The CEQA process
will include the 1602 process discussed in last week’s column.) In the meantime,
potential participants who have returned a Letter of Intent (LOI,) will receive interim
coverage from take for normal farming and irrigating practices.
There is no guarantee that the ITP will not be substantially changed
through the CEQA process. There is no guarantee that the ITP, in its final form, will be
acceptable to the RCD. If not acceptable, then individuals will be responsible to pursue
their own individual ITP. The permit is not final until signed by the RCD and individuals
that have returned an LOI are not bound until their sub-agreement is signed.
Under the programmatic ITP, the RCD would be the permit holder. There
would be sub-agreements between the RCD and the participating landowner/diverter. The
sub-agreement would specify the particular activities covered. These could include: (1)
diversion of water from streams, channels and sloughs; (2) installation, operation and
removal of structures used in the diversion of water; (3) installation, operation and
maintenance of fish screens at diversions and pumping locations; (4) movement of livestock
and vehicles across flowing streams; (5) grazing within the bed, bank or channel of a
stream; (6) installation and maintenance of riparian fencing; (7) riparian re-vegetation;
and (8) water management.
Participants would agree to abide by permit conditions and to be
responsible for avoidance and minimization measures. First among these measures is
adherence to water use rights and verification of the quantity of water diverted. Measures
also include agreements to: (1) maintain connectivity of the mainstem Scott River with the
tributaries of Shackleford; French, Wildcat and Miners Creek through equitable water
management until June fifteen of each year; (2) use fish screens; (3) remove certain fish
barriers; (4) install riparian fencing; (4) harden crossings; and (7) cooperate with fish rescue efforts.
Participants must also agree to allow the RCD to implement required
mitigation measures to compensate for fish impacts. (These could be things like riparian
planting, renewing spawning gravel and removing barriers that block access to fish.) The
RCD would try to obtain grant funding for any mitigation measures. It would administer the
program and monitor sub-agreement implementation for compliance. An annual fee will most
likely be charged for administration and monitoring services.
The RCD has no regulatory authority. Should a participant violate a
sub-agreement, the RCD would first counsel the violator on compliance. If the violation
continued, the RCD could terminate the sub-agreement.
Folks should assess their risk of take and decide what course to
pursue. A landowner or water user may decide that they have very little exposure to take
and decide not to pursue ITP protection. An individual could decide that they want their
own ITP, They must then complete an application acceptable to the DFG, pay for the costs
of CEQA and be responsible for the costs and implementation of their own mitigation
measures.
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