After two good falls, a disastrous summer for fish.
This year presents a deadly challenge for fish in the Eel River. A very dry winter, little relieved by sparse, late rains, yielded low flows even in spring. Flows were very low even before summer brought very high temperatures inland.
These facts alone raise concerns for what was hoped to be a bumper crop of juvenile coho and steelhead. Both spend their first year in fresh water. They need cold, clean water to survive—in a landscape where this year there may be very little water left in the creeks at all. By late summer of 2012, a year with much better rainfall, there was little water left in many tributaries of the Eel. In the Eel watershed, as across the region, concerns over low flows and stream conditions have risen sharply, in parallel with a striking increase in the size and number of marijuana farming operations. Credible estimates suggest the industry has nearly doubled in size in each of the last several years.
How do agencies enforce environmental and public health laws and regulations when most growers do their best to avoid the law?
The response of agencies and the community to a fish kill caused by illegal water diversion in China Creek, a tributary of Southern Humboldt’s Redwood Creek, offers some instructive examples: how poor practices’ serious impacts triggered an enforcement sweep; what the state agencies actually want from landowners; and how a community can come together— not just to avoid regulators’ fines— but to seek to do the right thing for the fishes’ sake.
China Creek is one of several tributaries of Redwood Creek which shelter some or all of the three protected salmonids in the Eel River watershed (coho, chinook, and steelhead).
A California Department of Fish and Wildlife warden found a dead juvenile coho in a dewatered reach of China Creek in October of 2012. DFW reported the kill to federal prosecutors because ‘take’ of species listed under the Endangered Species Act is a federal crime. Investigation pointed to a dam illegally placed at the headwaters of the creek.
However, the investigation also revealed more than two dozen unreported diversions. Some 27 landowners received formal letters from the state water board’s Division of Water Rights, warning of fines of up to $1000 and $500/day for continued unreported diversions. DWR’s enforcement letters generated ripples of concern far beyond the initial group of landowners. As the relative paucity of water rights filings indicates, most people in the area have been generally unaware of the legal requirements around water diversion and storage in California.
To help landowners and residents understand what the agencies want, FOER and the Salmon. Restoration Federation (SRF) convened a Water Rights Forum in Briceland on Thursday, July 11. We brought together key spokespeople from California Department of Water Resources, Department of Fish and Wildlife, the regional water quality control board, and Tasha McKee, who has led an important effort through Sanctuary Forest to promote water storage and legal compliance in the upper Mattole River, just west of the affected reaches of the South Fork Eel. More than 150 people from local watersheds attended, and the event was broadcast live on KMUD. It is currently available on the station’s website at www.kmud.org.
It is possible to do the right thing (store winter water and halt diversions) while also complying with legal requirements. For the vast majority of small landowners, reporting their water diversions, securing water rights for their water storage, and ensuring their diversions and storage are safe for fish and wildlife are relatively straightforward, inexpensive steps that will help to secure their land’s value and productivity.
Keeping track of cumulative diversions is essential to mitigating and managing impacts on fish and aquatic systems, but it’s only possible if they are accurately reported. Details matter: the rate of diversion, size of the pipe, construction of the intake manifold, and pumping schedule can all be critical variables. Similarly, close attention to the integrity of the water system (connections!) as well as to the details of application can make a huge difference in how much water we use.
To paraphrase one community member’s statement at the water rights forum, it’s plain to many people that a key part of the challenge is lots more people growing lots more weed. But the combination of increased demand and a year likely to turn out as dry as any in memory means that even longtime residents are having to make changes to keep the water in the creek and the fish right-side up.