Court Enjoins Shasta Valley and Scott River Watershed Permitting Programs
Posted in Court Decisions

On April 20, 2011, the San Francisco Superior Court issued a peremptory writ of mandate (PDF) enjoining the California Department of Fish and Game (DFG) from implementing a pilot program to facilitate recovery of the Klamath Basin coho salmon (Coho) and compliance by farmers with the DFG's Lake and Streambed Alteration Program (referred to as the Shasta Valley and Scott River Watershed-Wide Permitting Programs).

In March 2005, the California Fish and Game Commission listed the Coho as threatened under the California Endangered Species Act (CESA).  Therefore, the taking of Coho is illegal without authorization from DFG.

In addition to complying with the general requirements of CESA (i.e. avoiding unauthorized take of protected species), farmers must comply with the Lake and Streambed Alteration Program, which prohibits diverting, obstructing, or substantially changing water flow unless DFG determines that the activity will not substantially adversely affect an existing fish or wildlife resource, or if it does, ensure that reasonable measures necessary to protect the resource are taken.  But as a result of the diversion of water by farmers throughout the watershed, the Court found that there has been insufficient stream flow for Coho to make their necessary upstream migration to spawn. The Program was intended to facilitate compliance with CESA and the Lake and Streambed Alteration Program via compliance with incidental take permits (ITPs) and monitoring components and Streambed Alteration Agreements (SAAs).

Petitioners in this case included two fishing interest organizations, a Native American tribal group from the watershed area, and four environmental organizations. The court enjoined DFG from implementing the Program because it found that the watershed-wide Environmental Impact Reports (EIRs) prepared under the California Environmental Quality Act (CEQA) and CESA were inadequate due to faulty environmental baselines based on already-occurring illegal takes and deferred formulation of specific mitigation measures that would fully mitigate take, as required by CESA. The court also held that DFG abused its discretion by failing to field comments on any analysis of whether issuance of the ITPs would jeopardize the continued existence of the species because no additional environmental review would be required for approval of any future ITP provided it complied with the EIRs. Finally, because of the foregoing flaws in the EIRs, the court held that there was not substantial evidence to support a no jeopardy determination for the ITPs that have already issued. Accordingly, the court instructed DFG to set aside certification of the Program’s EIRs and any permits issued under the Program.

While the court noted the hardship on farmers of the Coho's listing under CESA, some of whom have been diverting water independent of DFG oversight before and after Coho were listed as threatened, it concluded by stating that the Program as designed offers the incentive of reducing permitting costs in order to induce greater participation.  As such, CEQA requires analysis of the foreseeable increase of ITPs under the Program while CESA requires full mitigation of the increased take that naturally follows an ITP.

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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