Negotiation Of Fines Fails To Provide Deterrence

By Nick Joslin

Here’s an update on how the current enforcement in the Scott and Shasta rivers looks from someone whose family has lived in the Shasta Valley since the mid-1800s. I’m a geologist and an activist and I try to speak for those with no voice- the fish and the public trust resources.

The current enforcement, coupled with weak settlement terms, are not proving to be enough of a deterrent to the unlawful diversion of water. The lack of strong fines for violations of the emergency drought regulations, has allowed the degradation of the Scott and Shasta Rivers to continue. It’s basically business as usual. This precludes the recovery of endangered species while continuing to prevent the recovery of tribal fisheries.

In 2004, when recovery of coho was discussed in the “Recovery Strategy for Californian coho Salmon”, a long list of existing laws was presented as needed for foundational support for restoration activities to succeed. We have had regulations for decades that could have been enforced, but they have not.

Some Scott valley examples of recent violations include two administrative civil liability complaints against a large Scott Valley diverter who was failing to submit curtailment certifications. Granted not a huge violation, yet without this information, management of the water resources is made more difficult. This diverter racked up nearly half a million dollars in fines, only for the state to settle for $5000. This diverter is on the Siskiyou county planning commission, the Scott/Shasta Watermaser District (SSWD), and the Farmer’s Ditch association. So, he violates regulations on his own water rights. His guidance at the SSWD meetings, suggests that he believes that the curtailments should not be followed, and the watermaster should have nothing to do with assisting the waterboard, despite having received money to do so. The Farmer’s Ditch Association also received a Notice Of Violation (NOV) for inefficient livestock watering, while having already received taxpayer funding for a groundwater system for watering cattle that should still be operational according to the NOV. This company is also a recent recipient of more taxpayer funds to be administered by CalTrout, via the Wildlife Conservation Board. Given this context, and the guidance this individual is able to exert on other diverters, we believe that the negotiation of fines is failing to provide the type of deterrence that is needed. Taxpayers also deserve to be assured that their money is used wisely and is not given to serial violators and unlawful companies.

In the Shasta, an example is Edson Folke Yreka Ditch company, a Safe Harbor participant. What is truly ironic, is that 20 years of federal legal immunity for take of endangered coho would be given to a company that cannot follow the law. A NOV was recently issued for inefficient livestock watering when fish need it most in early September…
We will watch for the resolution that comes, but we’re guessing they’ll get a small fine that won’t change their pattern of practice and they will continue unlawful activities while fines remain small enough to build into their cost of doing business.

Another example in the Shasta is the Shasta River Water Association, whose illegal activity garnered international news coverage. Their fines are yet to be posted, but given the current pattern, we don’t expect to see fines that would lead to changes in diversion activities or practices.

The current kumbaya approach of collaboration, weak enforcement, and even weaker penalties, masks a 2-decade failure to enforce existing laws. Throwing more money at restoration without regulatory and enforcement support, will not achieve recovery when one or two bad actors can set the entire process backward with a simple flip of a switch on a large ag pump.

Were we to have enforcement of existing laws, coupled with permanent instream flow recommendations, true recovery might occur, and taxpayer funding would not be wasted on bad actors and bad projects. Without any of this, we are slow walking coho to extirpation in the Shasta and extirpation of Chinook in the Scott.