[env-trinity] Siskiyou Daily News: Take it or leave it

Tom Stokely tstokely at att.net
Fri Feb 22 09:15:04 PST 2013

By John Bowman

February 15. 2013 9:50AM

Take it or leave it

A Shasta Valley landowner wants the right to leave legally adjudicated water in the stream to benefit fish and wildlife, but some irrigators and property rights activists are concerned about how that could affect others.

The Nature Conservancy owns over 4,000 acres in the Big Springs area of Shasta Valley where they are attempting to show that cattle ranching and salmon can coexist. Their current effort to leave some of their adjudicated water in the stream to benefit fish and wildlife has lead to some questions about water rights.

A Shasta Valley landowner wants the right to leave  legally adjudicated water in the stream to benefit fish and wildlife, but some irrigators and property rights activists are concerned about how that could affect others.

In 2005 and 2009 The Nature Conservancy (TNC) purchased two adjacent ranches in the Big Springs area of Shasta Valley with the goal of restoring salmon habitat on the property to help aid the recovery of Klamath River salmon populations. Since then, the organization has kept the ranch in agricultural production while improving habitat in the more than five miles of streams on the 4,534-acre property, now known as the Shasta Big Springs Ranch.
Recently, TNC became the source of some concern in Siskiyou County when several property rights activists publicized the terms of a conservation easement on the ranch. 

The easement has been in effect since September of 2010 when the California Department of Fish and Wildlife (CDFW) purchased it for $10 million. It stipulates that CDFW will take full control of the ranch’s adjudicated water right in the fall of 2015. Amy Hoss, TNC’s Shasta River Project manager says the easement was sold to the agency because CDFW brings important scientific resources and expertise to the table as a partner in the venture – assets Hoss says TNC needs in order to understand how best to manage the ranch while improving aquatic habitat.

Management of water resources plays an integral role in TNC’s multi-use approach to the ranch.  The group is currently in the process of jumping through the legal hoops required to leave some of its adjudicated water right in the streams for the benefit of salmon at critical times of the year. This effort to allocate adjudicated water for in-stream use, coupled with the state’s eventual control of the water right, has some Siskiyou County irrigators worried about the precedent these changes may set for future water management in the region.

Richard Marshall, president of the Siskiyou County Water Users Association (SCWUA) says he’s concerned about allocating adjudicated water for in-stream use.  “If the upstream owner doesn’t use the water allocated to them, the next property downstream has rights to use it, and so on,” says Marshall. In his opinion, “There is no way to claim the water passing no way to claim the water passing through the stream.” He says according to the water rights decree on Big Springs Creek, water not needed for irrigation “shall remain in Big Springs Creek subject to utilization and/or delivery to later appropriators to the extent of their rights to do so.” In Marshall’s opinion, the process of “shepherding” water downstream to enforce an in-stream allocation “would be setting the stage for precedents in future water use conflicts.” He believes, “The water code is clear that beneficial use is first for domestic, secondly for agriculture and thirdly for other uses including but not limited to aquatic species.”

Hoss says these kinds of concerns and legal complexities are exactly why TNC is going through the official process of applying for a 1707 permit from the California Water Resources Control Board. She says this will provide an open and transparent process in which the public can engage. Section 1707 of the California Water Code states that a legal water right holder may petition for an amendment to their stated beneficial use “for purposes of preserving or enhancing wetlands habitat, fish and wildlife resources, or recreation in, or on, the water,” provided that the amount of allocated water is not increased, other water right holders will not be unreasonably affected, and the request meets all other requirements of the provision. If the application is approved by the state water board, TNC will then have to petition the Siskiyou County Superior Court to amend the Shasta River Decree accordingly.

Other irrigators have expressed concern that assuring the extra water stays in the stream will require additional stream flow monitoring efforts, thereby increasing the cost of watermastering services paid by all irrigators under that watermaster. But Hoss says TNC has been working closely with its watermaster district to design a method of monitoring that can be achieved with the existing flow gauges and won’t increase the cost to other irrigators. She says, while TNC requests that its entire water right have the ability to be left in stream for fish and wildlife, the petitions are only asking for the “consumed” portion of these water rights – which is about half of their allocated water right, at most – to be bypassed beyond other lower priority water right owners in the Shasta River.”  This choice, Hoss says, reflects the actual consumption of irrigation water versus the full allocation at the point of diversion. She adds that this option will only be exercised when data shows the water will have benefits to aquatic habitat because pasture irrigation and cattle grazing will continue to be an essential part of TNC’s mission on the ranch. “We firmly believe that cattle ranching and salmon restoration can coexist.”

“The last thing we want to do is control other people’s water rights,” Hoss explains. “We are trying to set a precedent for voluntary action rather than regulation. If we eliminate voluntary options for improving the river then we are stuck with the regulatory approach. That’s not our goal.”

Siskiyou County Natural Resource Advisor Ric Costales says TNC has been “a good neighbor” with their ownership of the Shasta Big Springs Ranch. “The county has a good working relationship with TNC and good management on that property is essential,” he noted, adding that the county believes TNC should be able to exercise its private property rights as it chooses, as long as that use falls within the law and does not injure the rights of other water users.

Regardless of how TNC uses its water rights while it still has control of them, some water right holders are still fearful of changes that may occur after CDFW takes control of the water on September 15, 2015. While TNC will retain control of the property as the property owner, CDFW’s conservation easement will give the agency full control of the water right.  Some fear that with a 1707 permit established, the state will choose not only to allocate all of the adjudication for in-stream use all the time, but that this possible change could lead to a barrage of new enforcement efforts to ensure the water stays in the stream – potentially leading to an increased state presence up and down the Shasta River.

Bob Smith, senior fish habitat supervisor for Siskiyou County and several neighboring regions, was heavily involved in the negotiation of the conservation easement and manages habitat on several of CDFW’s wildlife preserves. He says the department’s top priority for the Shasta Big Springs Ranch is preserving the aquatic resources but it wants to follow the path established by TNC on the ranch by promoting the coexistence of agriculture and salmon. However, says Smith, “there are still unanswered questions” about land and water management and the Shasta Big Springs Ranch presents an excellent learning opportunity. He said, once CDFW takes control of the ranch’s water right, the department will use good science and the lessons learned on the ranch to direct their management of that water right into the future. “The department has to work within the law, like anyone else,” said Smith.

CDFW Director Charlton Bonham told the Daily News that he “believes very much in the water rights market” and sees “great value in a working landscape.” While stopping short of making guarantees about the future of TNC’s water right on the Shasta Big Springs Ranch, he said TNC has set an excellent example on the property and he would like to see that continue.

The comment period for TNC’s current 1707 application closes on March 11. Matt McCarthy is the staff person presently assigned to this matter. He can be reached at (916) 341-5310 or mmccarthy at waterboards.ca.gov.

Written comments can be sent to: State Water Resources Control Board, Division of Water Rights, Attn: Matt McCarthy, P.O. Box 2000, Sacramento, CA 95812-2000.
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