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Our Klamath Basin Water Crisis
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Pioneer Press, Fort Jones, California
Wednesday, June 2, 2004

Vol. 32, No. 29
Page A1, column 2

Controversy brews in Siskiyou

* Conservation easements will not keep the government from taking water rights.

* "Conservation easements are not intended to solve all your problems," said Greg Hendrickson, a San Francisco attorney.

By Liz Bowen, Assistant Editor, Pioneer Press

SISKIYOU COUNTY, CALIFORNIA – Just this winter, conservation groups made their presence known locally to farmers, ranchers and timber companies. It was a cold blast of reality.

The term "willing seller" has been questioned over and over again during the last six years, in meetings and down-at-the-cafe discussions, since the coho salmon was listed with the federal Endangered Species Act (ESA).

With the impending listing of the coho salmon to the California ESA on June 25, retaining lawful water rights are a major concern for this agricultural county that borders Oregon.

The California Department of Fish and Game is seeking restrictions and regulations on water right allotments or use, so that agriculture water can be used in coho streams to increase water flows. Mountain-grown alfalfa, grain and pasture are the largest agricultural crops grown in Siskiyou County, along with beef cattle. Government restrictions have jeopardized practical timber harvest.

More than 60 individuals attended a forum sponsored by the Scott River Watershed Council on May 18 at the Scott Valley Grange in Greenview.

An impressive set of speakers had been obtained – 10 in all. Some traveled from as far as San Francisco (300 miles) to provide information and answer questions in this out-of-the-way Scott Valley.

Chairman of the watershed council, Ric Costales, told the group that conservation easements, referred to as C.E.s, are controversial and that the forum was informational and not confrontational. The council would not be endorsing any side of the issues. A few heated comments were made, but the meeting remained calm.

Bottom line:

There is concern that the state water right law will be up-ended by the state ESA. Enviro groups have threatened lawsuits to increase water flows for coho.

Landowners, through the local Save Our Shasta and Scott Valleys and Towns coalition (SOSS), California Farm Bureau, California Cattlemen’s Association, and other state-wide groups, have also threatened a lawsuit against the state if water is lost; or business-destroying regulations are implemented.

Loss of irrigation water will affect the production and sustainability of farms and ranches.

During the last several years groups that offer C.E.s, like The Nature Conservancy, have become bolder.

In reaction, some property rights groups have become frustrated at the idea of "restrictions" being placed on property; and that the future owners, will find that the property restrictions go on forever, according to present law. Calls for alarm have been made throughout the nation. J. Zane Walley, of the Paragon Foundation, wrote several years ago on the controversy brewing over conservation easements.

Landowners are paid, usually up front, for the C.E. land restriction. It is purchased by a non-profit 501 (c) 3 organization or government agency.

The Nature Conservancy is the most well known organization to purchase conservation easements and land for the purpose of restricting its use. But other groups are popping up for a variety of reasons. And governments are getting more and more into the land-buying and owning business as well.

Conservation easements must have a purpose

Greg Hendrickson, a San Francisco attorney, explained the uses behind C.E.s. They are only used for specific land restrictions and only non-profit organizations or government agencies can designate a C.E., according to present laws.

The main uses for a C.E. are as follows.

-- To restrict subdivisions;

-- To stop other land development;

-- To preserve open space;

-- To provide or preserve water (other than water rights);

-- To preserve wildlife habitat;

-- To maintain scenic views;

-- To provide outdoor recreation;

-- To preserve historical structures.

"This is really an opportunity for you to say ‘this is what I envision for this property,’" said Hendrickson.

Water right questions asked

Blair Hart, a Shasta Valley rancher, asked if a C.E. will protect his water right against the state or federal governments’ actions that may change his water use.

"Will the holder litigate and defend me and the water right?" he said.

Hendrickson responded by saying that C.E.s are not intended to solve all landowner problems, adding "I’d say ‘no’ that a C.E. will not keep the government from taking water rights."

Gary Black, a Scott Valley farmer, asked if any of the conservation groups or officials of government agencies in the audience were there, because they were interested in the purchase of water rights. (There were at least 10 state and federal employees in attendance.)  No one responded.

Hendrickson then said that a C.E. really isn’t the right tool to use on water right issues.

Bill Gardiner, from the National Resource Conservation Service field office in Yreka, said there is a wetlands program that pays a certain amount of funds for a specific number of years to provide water that will maintain wetlands. But the program does not purchase water rights.

Easements are like buying a hat

An analogy was made by Gareth Plank, a Scott Valley rancher, about C.E.s. It is like buying a hat. First you need to know what you want; then you need to go to those with the best expertise and advice; and then customize the C.E. to your type of land and needs. Others on the forum agreed.

Two items were agreed upon by the 10 forum participants:

1. Obtain good advice from an attorney, who understands C.E.s.

2. The landowner must discuss the situation with his or her accountant -- in-depth.

"Be very thoughtful about it," said Jake Jacobson, with The Nature Conservancy. "Conservation easements are terrific tools for some families," he added.

Larry Camp, with the Internal Revenue Service, was up front. He said that conservation easements are best used as an estate-planning tool. Income from the purchase of a C.E. placed on land will be taxed at capital gains rates in the year that the landowner receives the revenue.

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