Coho Salmon Win Big

Highway 3 over dewatered Scott River near Fort Jones. Siskiyou County, CA. Sept. 2, 2009. Photo: Scott Harding/Klamath Riverkeeper. Flight provided by LightHawk. The Scott River was completely dewatered in most of the Scott Valley in the summer of 2009. The Scott Valley contains 30,000 acres of farm and ranch land that is irrigated using river water and pumped groundwater.

By KAY HEITKAMP, Two Rivers Tribune Contributing Writer

On April 20, a San Francisco Superior Court judge ruled against the California Department of Fish and Game (CDFG) for issuing permits allowing diversion of water from the Shasta and Scott Rivers for irrigation for farmers who grow hay. Both rivers are tributaries of the Klamath River. In the court’s opinion, CDFG failed to adequately consider the harm caused to federally protected coho salmon by the diversions that have often resulted in the rivers running dry during summer months.

The Klamath Riverkeeper, Quartz Valley Indian Reservation, Pacific Coast Federation of Fishermen’s Associations, Environmental Protection Information Center, Sierra Club, NorthCoast Environmental Center, and Institute for Fisheries Resources filed the lawsuit against CDFG in 2009. Earthjustice appeared on behalf of Klamath Riverkeeper.

In 2002, it was recommended that Klamath Basin coho salmon be listed as threatened under the California Endangered Species Act (CESA).

Historically, the Scott and Shasta rivers have offered important habitat for coho salmon in the Klamath Basin. However, in recent years as the number and amount of water diversions continued, the numbers of coho fell off substantially.

In 2004, the California Dept. of Fish and Game (CDFG) was ordered to develop a salmon recovery plan in conjunction with stakeholders in the Scott and Shasta River Watershed, including environmental, federal, and agricultural agencies, and a local Native American tribe. In 2005, coho were officially listed as threatened. This action prohibited any taking of the fish without an Incidental Take Permit (ITP).

Water diversions are highly regulated to prohibit obstructing or substantially changing water flows unless certain procedures are followed. The regulations are meant to ensure that diversions will not adversely affect fish or wildlife and make certain that reasonable measures are taken to protect fish and wildlife.

CDFG developed a salmon recovery program it claimed would protect coho while still allowing farmers to use water diverted from the two rivers. CDFG maintained that by requiring permits, instigating strict monitoring, and implementing streambed alterations, these actions would be sufficient to restrict over-diversion of water while promoting salmon recovery. Permits to divert river water were recently required after years of unregulated water diversions and the widespread loss or “incidental take” of endangered coho.  

Environmental groups challenged CDFG’s permit program, alleging violations of the CESA and other laws. Plaintiffs sued CDFG after the agency went ahead and approved the permit program in spite of repeated written objections.

Ruling of the Court

In his decision, Judge Ernest Goldsmith wrote, “Despite good faith efforts by CDFG and potential hardships to water users, the Court must uphold the legislature’s mandate to preserve listed species and conduct environmental reviews of all foreseeable consequences.

The court also found that respondent’s permit program violated CESA because CDFG didn’t quantify how many fish deaths the water diversions would cause, didn’t show sufficiency of mitigation measures to protect and restore coho, and didn’t seek public input on whether the program would further jeopardize the salmon.What the Court Considered

The use of water resources is central to coho recovery. There needs to be sufficient volume of low temperature water flowing downstream over an undisturbed streambed as the fish swim upstream to spawn. Diversion for agricultural use has reduced water volume, raised water temperature, and disturbed streambeds. The result has been insufficient stream flow for coho to swim upstream to spawn. In addition to adequate stream flow, coho spawning also requires streambeds with low sediment levels and instream shelters and pools. Water diversions and livestock crossings may alter streambeds.

Even with Streambed Alteration Agreements (SAAs) in place and requiring ITPs and other mitigation efforts, Judge Goldsmith ruled that CDFG’s actions were inadequate to protect coho salmon and violated CESA.Comments

“Fish and Game needs to take the court’s ruling seriously and modify the permit program so enough water is left in the rivers for the salmon to survive,” said Wendy Park, attorney for Earthjustice. 

Erica Terence, Klamath Riverkeeper, remarked that even though the CDFG program had proposed to do some good things for fish habitat, the agency ignored the fact that diversions cause the rivers to go dry at some times of the year.

Commenting on the court’s ruling, Terence said, “Band-aid solutions such as installing fish screens and ladders on diversion ditches and dams or replanting stream banks are not an acceptable substitute for leaving water in the river. The simple fact is that fish need water.”

“The state essentially set up the permit program without studying the harm that water diversions cause to salmon,” said Park.  She continued that without any meaningful restrictions on water diversions, the last remaining salmon that still spawn in the rivers will be left unprotected.Aftermath of the Court’s Ruling

In the wake of the court’s decision, both fishermen and farmers are uncertain of what regulations currently apply. Without any endangered species permits, many of Siskiyou County’s landowners and water users have been out of legal compliance since the irrigation season began on April 1.

To safeguard the needs of the salmon, CDFG is now in the position of having to develop or rework a new permit process to account for the needs of the salmon. According to spokesperson, Jordan Traverso, the department is currently reviewing the ruling and considering its options for moving forward.

“If this court judgment tells us anything, it’s that the status quo of excessive water extraction in the Scott and Shasta cannot stand. The laws that require water in the stream to protect salmon are already on the books. Now it’s up to Fish and Game to use them to restore these rivers and give coho salmon a chance at survival,” Terence said.

For More Information visit

earthjustice.org/ or klamathriver.org to read or download the entire court case. For other information, contact Klamath Riverkeeper Director, Erica Terence at erica@klamathriver.org or Wendy Park, Earthjustice at wpark@earthjustice.org.