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Judge nixes special irrigation permits
by TIM HEARDEN, Capital Press 3/4/11
REDDING, Calif. - A judge has invalidated California Department of Fish and Game-issued permits to irrigators in two rural valleys near the Oregon state line.
San Francisco Superior Court Judge Ernest Goldsmith sided with environmentalists who argued the DFG's watershed-wide incidental take and streambed alteration permits in the Scott and Shasta valleys violated state law.
In a preliminary decision received by the litigants this week, Goldsmith acknowledged that Fish and Game has made "a good faith effort" to strike a middle ground with landowners but noted the state's Endangered Species and Environmental Quality acts require the agency to put the survival of imperiled coho salmon first.
"All stakeholders involved here at some point encounter coho, which course through" the Scott and Shasta rivers, Goldsmith wrote in his decision. "Consequently, the coho's listing under (the California Endangered Species Act) will impose hardship on water users, especially agricultural operators, some of whom have been diverting water independent of DFG oversight before and after coho were listed as endangered."
The decision effectively suspends a controversial permitting program that had drawn fire from both conservationists and irrigators, as many landowners accused the agency of violating their property and water rights.
The conflict erupted last year when the state told irrigators in the two valleys they could face fines or jail if they didn't sign up for the blanket permits or obtain permits on their own. The landowners found allies in the area's two Republican state lawmakers, Assemblyman Jim Nielsen and Sen. Doug LaMalfa, who urged the DFG to back off.
As a result of Goldsmith's ruling, Fish and Game officials will consider whether there's a way to offer some sort of streamlined permitting program that will pass legal muster, said Neil Manji, the agency's regional director in Redding.
The agency will consult with landowners in the two valleys as it considers its next steps, Manji said.
"I don't want to jump to conclusions," he said. "There are some procedural things. We need to figure out if there's a way to continue the program.
"It would not be in our best interest to make decisions ... without fully vetting the landowners," he said.
The suit by Earthjustice, Klamath Riverkeeper and other environmental groups was one of two filed against the DFG in relation to the blanket permits. The California Farm Bureau Federation had challenged the legality of requiring permits for simple water diversions but withdrew its suit in January after failing in its bid to have it tried separately from the environmentalists' case.
Erica Terence, program director for the Orleans, Calif.-based Klamath Riverkeeper, has said environmentalists don't want to abolish ranching along the Shasta and Scott rivers but believe agriculture should be able to coexist with imperiled fish.
She and others point to scientists' reports of rapid declines in coho populations in the two rivers, which are key spawning grounds. Environmental groups estimate that more than 60 percent of the decline is attributable to "local" factors, including a doubling of irrigation withdrawals since the 1950s.
"With the lawsuit what we basically wanted to do was have (the DFG) go back to the drawing board and do the proper studies they needed to do to authorize more take in these watersheds," said Wendy Park, an attorney for Earthjustice. "It's really in the agency's hands."
Park declined to say whether the groups would begin targeting individual landowners. Etna, Calif., rancher Jeff Fowle acknowledged there's a risk of such suits, but he said landowners have taken many measures to protect fish and have only diverted water in accordance with their adjudicated rights.
He expressed hope that Goldsmith's decision will cause Fish and Game to take a closer look at water-saving measures taken by landowners, such as replacing old wells with new ones in more strategic places and installing wheel and pivot irrigation devices.
Ranchers have put in Fish and Game-designed fish screens and permanent rock weir structures so they don't have to use push-up dams, Fowle said.
"There's a part of me that is optimistic that the light bulb might come on in the department and (officials will) say, 'You know what, these issues we've been trying to mitigate have already been mitigated,'" he said. "It might give the opportunity for Fish and Game to back down gracefully.
"Whether or not they will do that, we'll see," he said. "I'm not going to hold my breath."
Scott Valley Protect Our Water: http://pienpolitics.com/
California Department of Fish and Game: www.dfg.ca.gov
Klamath Riverkeeper: http://www.klamathriver.org/
Page Updated: Friday March 11, 2011 02:55 AM Pacific
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