THE PONDS PROJECT - Sustainable Conservation

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THE PONDS PROJECT - Sustainable Conservation

Section 1600 Agreements can be initiated in numerous ways, including the following:

1. Enforcement Action:

Enforcement action is usually taken only when a diverter does something egregious

(e.g., diverting all the water from a stream). However, CDFG could choose to take a

broader, watershed-wide approach to enforcing Streambed Alteration Agreements on

steelhead and coho salmon streams. Under this approach, CDFG would send letters

to water right holders notifying them of the requirement to develop Streambed

Alteration Agreements for their diversions, and stating that non-compliance will

subject them to enforcement action. No such action has been taken in San Mateo and

Northern Santa Cruz counties.

2. Notification to CDFG:

Water right holders who do not wish to continue operating their diversions without a

valid Streambed Alteration Agreement can notify CDFG of the need for an

Agreement.

3. Voluntary Stream Restoration:

Almost all stream restoration projects require Streambed Alteration Agreements from

CDFG. Although not all types of restoration activities would necessarily require that

a landowner get updated Agreements for existing water diversions, any project to

build off-stream storage, remove fish barriers, or otherwise restore instream flow

conditions for fish would require that a landowner’s existing diversions be brought

into full compliance. Therefore, restoration-minded diverters will likely be required

to develop Streambed Alteration Agreements for their existing diversions if they

undertake such projects. If landowners fear that by participating in voluntary

restoration projects they will have to pay for expensive studies while also risking

potential restrictions on their existing water diversions, they are unlikely to pursue

voluntary stream restoration.

Incidental Take Permits – State and Federal Endangered Species Acts

Another compliance issue affecting nearly all diverters on streams that support coho

salmon or steelhead is that of incidental take of a protected species. For species listed

under the California Endangered Species Act (CESA), incidental take means to hunt,

pursue, kill, or capture a listed species, as well as any other actions that may result in

adverse impacts to a listed species. For species listed under the federal ESA, incidental

take is more rigorously defined: to harass, harm, pursue, hunt, shoot, wound, kill, trap,

capture, collect, or to attempt to engage in any such activity. NMFS regulations further

define the term harm to include significant habitat modification or degradation that

actually kills or injures fish or wildlife by significantly impairing essential behavioral

patters, including breeding, spawning, rearing, migration and sheltering.

For activities that might result in take of threatened or endangered species (in the case of

diversions, examples of take include catching fish in the diversion, blocking fish passage,

or contributing to the dewatering of stream habitat), an incidental take permit is required.

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