Permit requirements spark irrigation debate

Jun 11, 2010

In the Shasta and Scott River valleys of northern California, flood irrigation has been a standard practice for the agricultural community, in some cases for generations. However, according to the California Department of Fish and Game (DFG), irrigation practices on the two rivers have been carried out, for more than 50 years, in a state of non-compliance with their regulations. They have warned area ranchers that fines, lawsuits, and even jail time may result if the ranchers don’t obtain special permits for diversions from the rivers. This change in enforcement is causing friction amongst ranchers once noted for their cooperation with state agencies.

The debate centers around a DFG regulation, written in 1961, that requires river users to apply for a "Lake or Streambed Alteration Agreement" with DFG if their activities substantially alter the shape or flow of the waterway. Though the regulation has been in place for nearly five decades, ranchers contend that, until recently, the rule was used only to regulate major stream alterations, not farmers and ranchers simply utilizing their diversion rights. However, Mark Stopher, the acting DFG regional director based in Redding, contends that DFG has been under-enforcing this section of their code all along.

"The department traditionally has enforced (the code) for significant modifications to the bed, bank, or channel, but has done so a little unevenly with respect to where there is a substantial diversion of the flow," he says.

Although Stopher does admit that the phrase "substantial diversion" is subject to interpretation, he says the agency feels that most of the flood irrigation taking place in the Scott and Shasta valleys qualifies.

"It’s technically a pretty complicated process to figure out what a substantial diversion is, and what type of methods you would have to employ to mitigate those effects," he says, adding, "It’s our view, in both valleys, that every user should notify us of substantial diversions. Most landowners will need a diversion agreement."

According to Stopher, changes in the level of enforcement are largely the result of California’s 2005 decision to include the coho salmon on the state’s endangered species list. Though primarily a coastal fish, coho are known to travel up the Klamath River system, a system to which both the Scott and Shasta rivers are tributaries. DFG officials feel that irrigation diversions could pose a threat to the salmon.

"It’s our view that, individually or cumulatively, these diversions take coho salmon," says Stopher. "We’ve rescued fish many times because the streams were drying up due to diversions." Stopher also points out that ranchers will need to additionally obtain an "incidental take permit" from the DFG in case of salmon loss.

With additional permits come additional costs, and many area ranchers fear the expense may be too much for them to bear. DFG estimates the cost of individually obtaining a diversion agreement will amount to between $13,000 and $30,000 for each irrigator. Large users, such as combined irrigation districts, could be facing costs upwards of $100,000.

"It’s an impossible burden," says Bill Krum, Scott Valley rancher. "There are no large ranches or corporations here; these are small family operations."

Adding to the problem, says Krum, is the region’s unfamiliarity with the water disputes common to other areas of the state. Because the valleys drain into the Pacific, not southwards into California’s interior, the region has largely been immune to the debates that have raged in recent years over water in the central and southern portions of the state.

"This is the first time that these kinds of regulatory issues have ever hit this area," says Krum. "People have been used to minding their own business, and running their business in a responsible way. To have the government step in and say that they can’t do this or that, it just doesn’t set well with them."

According to Krum, who is also board president of the Siskiyou Resource Conservation District (RCD), area ranchers, as well as the RCDs in the two valleys, have been negotiating this issue with DFG since before the coho were listed, beginning with a grassroots effort in 2003 to prevent the species from being listed at all.

"We thought we had a very good case for why the fish should not be listed in our area, but we were not successful," he says. "As we went through the process, however, the message to DFG was, if you do list (the coho), and you want to continue to get the cooperation of landowners up here, then you need to give us a way we can get ourselves legal without breaking everyone’s back."

As a result of these efforts, an agreement was formed that would allow the local RCDs to obtain one master permit for the entire watershed, with ranchers participating in the program on a voluntary basis. Ranchers participating in the Watershed Wide Permitting Program, as it is now called, will pay a fee to the RCD, based on usage, currently estimated at $200 per cfs, or cubic foot per second, of water diverted. In exchange, the RCDs will cover the government permitting costs, as well as costs of mitigation efforts, such as fish screens to keep salmon out of diversion ditches. Though not a perfect solution, the program does allow ranchers to obtain legal permitting status for much less than they would pay by obtaining their permits privately. For ranchers like Krum, the program may provide the best alternative, given the new requirement. "Unfortunately, the water that we use for irrigation also supports the salmon," he says. "Therefore, conflict is going to exist."

Krum also says that DFG clearly wants this effort to work, pointing out that they provided funding to cover the necessary environmental impact reviews. In doing so, they covered $800,000 in costs that, according to California law, should have been owned by the irrigators.

Though Krum says most ranchers are taking advantage of the program, many have still declined to do so, feeling that DFG should not be governing their water rights. Speaking on behalf of these ranchers, the California Farm Bureau has filed suit against DFG, charging that they are overstepping their bounds by requiring these permits.

"The basic premise of the lawsuit is that DFG is now trying to regulate water, which is beyond its jurisdiction," says Farm Bureau spokesman Dave Kranz. "They’re taking steps that could threaten the farmers’ rights to irrigate their crops, and we feel that is beyond their authority."

In a press release issued May 25, Chris Scheuring, managing counsel for the case, points out that water rights in California are already overseen by a separate state agency, making DFG’s requirements an unnecessary redundancy. Scheuring asserts that the 1961 regulation, originally drafted in response to gravel mining, was never meant to govern farmers who merely lift a head gate to obtain irrigation water, and has never previously been required of those users. "Reinterpreting the original rules nearly 50 years after they were enacted," he says, "leads to a duplication of government functions never intended by the legislature."

Stopher, however, maintains that ranchers who failed to obtain permits by the deadline, which occurred on June 7, are in violation of the law.

"We will make discretionary decisions about who we prepare investigative reports on, and we will refer those to the district attorney," he says. — Jason Campbell, WLJ Correspondent