THE PONDS PROJECT - Sustainable Conservation

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THE PONDS PROJECT - Sustainable Conservation

water right permit. However, the guidelines also limit the cumulative amount of water

that can be diverted from a stream, so the application process for rights on a stream with

high existing winter diversions is significantly more difficult, and several streams in the

project area have been classified as fully appropriated. While this factor limited the

number of streams where the project could have been implemented, Sustainable

Conservation did not view compliance with the guidelines as an insurmountable barrier.

2. Construction of New Off-Stream Storage Ponds

Building new ponds would require consultation with CDFG and FWS for the State and

federally listed California red-legged frog and San Francisco garter snake. The fully

protected status of the San Francisco garter snake under State law means CDFG cannot

issue an incidental take permit for activities that have the potential to hurt or kill the

snakes, including the construction and management of ponds. However, the project

could have moved forward if protection measures needed to prevent the take of the

species were incorporated into the design, construction, and operation of the ponds.

Representatives from both CDFG and FWS were optimistic that these protection

measures could have been developed in a cost efficient manner.

3. Modifying Operations for Continued Summer Diversions to Maximize Benefits to

Fisheries

A lack of sufficient winter streamflow and a limited number of suitable pond sites meant

many participating farmers could not completely switch from summer diversions to

winter diversions and storage, and this would require some level of continued summer

diversions to satisfy irrigation needs. Furthermore, even if a farmer could completely

switch to winter diversions and storage, this eventuality would not have been certain until

after the regulatory process was well underway. With these factors in mind, two key

barriers to the success of the project emerged: (a) resource and regulatory agencies were

not willing to permit some level of continued summer diversions even if new winter

diversions and storage significantly reduced the quantity of summer diversions needed;

and (b) the agencies were not willing to provide any programmatic certainty about what

might happen if a farmer could not completely switch to winter diversions and storage.

In regulatory terms, these barriers were rooted in the federal Endangered Species Act

(ESA), and the State’s Section 1600 Streambed Alteration Agreement (Section 1600

Agreement) process.

• Summer Diversions and Regulating Anadromous Fisheries under the ESA

If a farmer could not completely switch from summer diversions to winter

diversions and storage, NMFS would be required to ensure that coho salmon and

steelhead populations would not be jeopardized. NMFS would accomplish this by

issuing an incidental take permit under section 7 of the ESA for the continued

(albeit reduced) summer diversion. This raised two important questions for the

project: (1) how much would it cost, and who would pay, to quantify and

characterize the existing salmonid habitat; and (2) if studies showed that existing

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