April’s decision was the latest in a string of court rebuffs to the manner in which the California Department of Fish & Game (CDFG) – the agency charged with protecting the public interest in fish and wildlife and their habitats – is discharging its duties in the Klamath River Basin. As presented to the public by CDFG officials and reported by the press, the permits were developed to remove the threat of prosecution from farmers and ranchers who divert water for irrigation and livestock from the Scott and Shasta Rivers and key tributaries. As you will learn below, however, CDFG managers had another reason they wanted those permits in place. That other reason is not secret but neither is it known to the public. KlamBlog remedies the omission with this post.
The Scott River Valley once was – and could again be – heaven for Coho salmon. The low gradient mid-elevation valley is fed by dozens of small streams – just the sort Coho prefer. And the river itself is – or should be – kept cool by numerous springs. But Coho are not doing well in the Scott River Valley and the way water is used by agriculture there is a prime reason.
For well over a century hundreds of thousands and perhaps millions of young Coho Salmon have died each spring in Shasta and Scott River stream sections suddenly dewatered when streams – or portions of streams - are diverted into irrigation ditches. In recent decades many of the stream diversions have been screened to prevent fish from getting trapped in the ditch and killed. But many more fish are killed when the diversions dewater stream sections below.
A typical CDFG fish screen in the Scott River Valley. Screens prevent fish entrainment in irrigation ditches but do not prevent stream dewatering
Even when Coho were listed under the federal Endangered Species Act, the killing continued unabated. For example, soon after Coho were federally ESA listed over 200,000 Coho, Chinook and Steelhead were killed when the second largest stream diversion on Scott River – the Farmer’s Ditch on the east side of Scott Valley – was opened. The public never heard about the massive fish kill. Instead, like most agricultural violations of environmental laws, this one was handled privately between the DA, CDFG and the irrigation district. The employee who killed the fish got off with a reprimand.
This is the section of Scott River dewatered in most years by the Farmer's Ditch. The photo shows a bogus "restoration" project which was done to protect a nearby home from the River. Using watershed and fisheries restoration funds to benefit landowners instead of fish is a common practice in the Scott Valley.
Under California law all owners of dams and stream diversions must allow enough water to pass to keep fish living below the diversion in good condition. But Fish & Game Code 5937 – part of the California Constitution - is not well enforced. In fact, as documented in a 1991 SF Chronicle report, the highest officials in CDFG told their employees not to enforce that law in the Scott and Shasta River Basins. Those top CDFG officials have now mostly retired; but Code 5937 is still not being enforced and fish are still dying en mass below irrigation diversions.
In California most - but not all - surface irrigation is administered by the California Department of Water Resources (DWR). DWR provides watermasters who make sure irrigators do not take more water than the amount specified in their water right or permit. The watermaster’s job includes either directly operating or overseeing stream diversions for irrigation or livestock watering.
Farmer’s Ditch does not have watermaster service. But in other parts of the Scott and Shasta Valleys where watermasters do work they too are involved in killing Coho – along with Chinook, Steelhead and other critters – when diversions are turned on and stream sections below are dewatered. Some of these watermasters also allow other practices of questionable legality including running irrigation ditches full outside the irrigation season – a practice which is becoming more common in the Scott River Valley.
The Immigrant Creek Irrigation Ditch running full on Christmas Day 2009
This is a relatively new practice in the Scott River Basin
Watermaster involvement in “take” at stream diversions became a big concern for DWR managers when Scott and Shasta Coho were listed under California’s endangered species protection law. If a DWR state employee were to be hauled into court for violating state law it would be a huge negative PR hit and could cost some managers their jobs. So the DWR managers went to their sister department – CDFG – for help.
Back in the 1970s when the diversions were turned on each spring CDFG employees would mobilize, take fish stranded in the isolated and shrinking pools below diversions and release them into the Scott River downstream from Scott Valley. Not all diversions dewatered streams; but the CDFG folks were plenty busy with those that did.
In the 1980s CDFG abandoned fish rescue. Scientists had discovered that moving stranded fish weakened all fish present at locations where “rescued” fish were released. Fish crowded into areas with insufficient food experience increased mortality. Because all the fish are weaker they are all more susceptible to disease and predation. This process is known by the term density dependent mortality.
In an attempt to minimize density dependent mortality, CDFG now releases "rescued" fish into the Kelsey Creek Spawning Channel - a failed Forest Service/CDFG restoration project from the 1980s. Salmon rarely spawn in the channel .
Under pressure from DWR, CDFG resumed “fish rescue” in the 1990s and has continued it since. This does not eliminate “take” but it does hide it from the eyes of those who might object and file a lawsuit on behalf of Coho.
Is killing Coho legal?
The National Marine Fisheries Service has reportedly authorized “take” by DFG in its “fish rescue” (sic) program. That decision itself could be vulnerable to challenge under federal law. But the situation with state law is more serious and immediate. CDFG, DWR and the irrigators who are involved in killing Coho when diversions are turned on could be prosecuted under state law.
Whether under the state or federal ESA, however, successful prosecution for “take” of a listed species usually requires a dead specimen - or at least a photo of a dead specimen. But “take” specimens and photos can be hard to come by even below stream diversions. In this case, however, those who wish to end the killing of Coho below Scott and Shasta Valley stream diversions could challenge DFG’s “fish rescue” program.
Agricultural water use in the Scott and Shasta River basins has become controversial. Streams dewatered by diversions, diversions run full year around and unregulated groundwater pumping all contribute to river flows which threaten not only Coho but also Chinook, Steelhead and Lamprey. The Forest Service’s water right for flows in Scott River is now not being met during late summer and fall even in years of average precipitation. Consequently, Chinook, Coho and Lamprey migration and spawning in and above Scott Valley has been delayed or even denied in some years. Dewatering and low flow are also implicated in the failure of Scott River water to meet water quality objectives established to protect cold water fisheries.
Scott River Chinook held up near the mouth by low flows, October 6, 2009Coho defenders could petition the California Attorney General – the state’s top law enforcement official - to investigate the persistent illegal activities in the operation of Scott and Shasta River diversions and associated malfeasance by CDFG and DWR officials. Or they could challeng CDFG/DWR “fish rescue” in the Scott River Valley. That would appear to be the logical next step for Klamath Riverkeeper and the other organizations which successfully challenged Shasta and Scott programmatic “take” permits.
Will Klamath Riverkeeper, et al follow through on behalf of the Coho? Will some other organization take action