The long awaited first draft of a
proposed "programmatic" or umbrella coho incidental take permit (ITP)
application for agricultural activities has been delivered to the Siskiyou and Shasta
Resource Conservation Districts (RCDs) by the ITP development team. Over the next weeks
and months, it will serve as a rough document upon which refinements may be made and a
final application may be crafted.
Some time ago, the California Fish and Game Commission (CFGC) made a decision that the
listing of coho salmon north of San Francisco "was warranted." The actual
listing, however, has been delayed while a voluntary recovery plan was developed by
a State level team and a local Shasta Scott Recovery Team (SSRT.) The first draft of that
document has been completed and public comment collected. The CFGC should be considering
its adoption in January.
In a separate issue, the California Endangered Species Act (CESA) prohibits
"take" of a listed species. "Take" is defined as "to hunt,
pursue, catch, capture, or kill, or to attempt to hunt, pursue, catch, capture or
kill." The civil penalty for "taking" a listed species can be up to $10,000
per individual animal taken. So far, because coho has remained a candidate species and has
not actually been formally listed, agriculturalists and others have been able to operate
under pretty much the status quo. That will change if the CFGC decides to formally list
the coho. (This might happen in January or February.)
Prohibitions on take of a listed species are not voluntary. They are State law.
There is currently a six month's moratorium on new regulation imposed by the Governor. It
is not clear what impact this might have.
Under section 2081 of the Fish and Game Code, the California Department of Fish and Game
(CDFG) may issue a permit authorizing "take" if the take is
"incidental" (by-product) to an otherwise lawful activity. The (ITP)
permit requires that the take be "minimized and fully mitigated" and that the
measures required for the permit are "roughly proportional in extent to the impact of
the authorized taking on the species."
In the draft Siskiyou RCD ITP application, some of the "otherwise lawful"
agricultural activities that the team identified that might conceivably cause prohibited
"take" to coho include:
· Diversion of surface water according to an
adjudicated right;
· Installation, operation and removal of
diversion structures - flashboard dams, gravel push-up dams, boulder weirs, headgates and
measuring devices;
· Pumping within the (approximate 500 foot)
"interconnected zone" as identified in the adjudication;
· Installation, operation and maintenance of
fish screens;
· Movement of livestock and vehicles at
hardened crossings across flowing streams; and
· Grazing of livestock within the bed, bank or
channel of the stream;
The issue is further clouded by the fact that many instream diverters operate under a 1603
or streambed alteration permit with the CDFG. It has been suggested that a final listing
of the coho could constitute a "substantial change" in conditions that could be
used to revoke the permit, requiring an ITP in order to reissue.
It is recommended that agricultural operators examine their operations for risk exposure
to coho "take" and to contact the RCD to explore programs, such as fish screen
installation, that can minimize the risk of take. Helping landowners with voluntary
conservation efforts has always been the RCD's function.
The process involved in preparing an ITP application is substantial. There is a great deal
of biological and other scientific evidence that must be considered. There are legal
issues, funding of permit expenses and costs of measures, practicality, California
Environmental Quality Act (CEQA) compliance, and other issues that must be considered.
Not to further compliacte the issue, but an additional consideration is that the federal
government listed the Southern Oregon Northern California Coastal (SONCC) coho as a
threatened species in 1997. The federal definition of "take"is different from
the State's. Federal "take" is to "harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."
"Harm" has been defined by regulation to include habitat alteration that
significantly impacts essential behavioral patterns, including breeding, feeding, or
sheltering.
It its ITP or "habitat conservation plan" (HCP) process, federal permitting
focuses on mitigation measures to reduce the impact of incidental take. It does not
require "full mitigation" (eye for an eye) like the State ITP. It is probable
that an ITP might try to satisfy both requirements.
The RCD is interested in considering whether, as a landowner service, it wishes to hold a
programmatic permit for the benefit of interested local agriculturalists who might chose
to subscribe to its conditions. It will need feedback, dialogue and support from local
cooperators to do this.
If the landowner decides that he has exposure to "take" in his agricultural
operations, he/she might wish to pursue his own permit, but it is a very expensive and
time consuming process. It is up to the landowner to assess his own risk and make his own
decisions. |
