San Francisco, CA —

It’s illegal for ranchers to divert water from California’s Shasta and Scott rivers, a San Francisco Superior Court judge has ruled. The judge said the program, run by the California Department of Fish and Game, failed to adequately consider the harm to protected coho salmon. The diverted water is used to grow hay. Both rivers, tributaries of the Klamath River, often run dry in summer months because of the diversion.

Water taken from the Scott River is used to water hay fields,
leaving the river dry and killing salmon.

Permits to divert river water were recently required after years of unregulated water diversions and the widespread loss or “incidental take” of endangered salmon.

Environmental groups challenged the permit program, alleging violations of the California Endangered Species Act and other laws. The DFG must now work any new permit process to account for the needs of the salmon.

“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. “We‘ll be watching the process all the way.”

In his decision issued last week, Judge Ernest Goldsmith found that DFG permits were based on an erroneous assumption that water diversions couldn’t be restricted and would harm coho salmon regardless of whether DFG permitted the diversions or not.

“Despite DFG’s good faith efforts and potential hardship to water users, the court must uphold the legislature’s mandate to preserve listed species and conduct environmental review of all foreseeable consequences,” Judge Goldsmith wrote in his decision.

The court further ruled the permit program violated the California Endangered Species Act because the DFG didn’t quantify how many fish deaths the water diversions would cause, didn’t show the sufficiency of mitigation measures to protect and restore coho, and didn’t seek public input on whether the program would further jeopardize the salmon.

In December of 2009, DFG scientists reported that two out of three generations of coho salmon in the Shasta River are "functionally extinct." Coho salmon have a three-year life cycle that results in three distinct generations of coho in any given year. The only viable generation spawned in fall of 2010, and the resulting juvenile fish are now hatching and emerging from the gravels to face their odds this spring. However, coho are likely to rebound if adequate water is left in the rivers.

“Such a permit program can do a lot of good for the salmon, if properly constructed,” commented Glen Spain of the Pacific Coast Federation of Fishermen’s Associations, whose member’s fishing industry jobs are directly affected by salmon declines in these rivers. “But as the Court has now ruled, it cannot just be a rubber stamp given to the extinction-level status quo. Business as usual leads only to salmon extinctions and more jobs lost in our industry.”

The public interest law firm Earthjustice is representing Klamath Riverkeeper, the Pacific Coast Federation of Fishermen’s Associations, the Quartz Valley Indian Reservation, the Environmental Protection Information Center, Sierra Club and the Northcoast Environmental Center in the case.

The ruling leaves both fishermen and farmers awash in regulatory uncertainty. Without any endangered species permits, many landowners and water users in Siskiyou County have been out of legal compliance since the irrigation season began on April 1.

Read the court ruling.