At the November 16, 2011 California Department of Fish & Game (DFG) Commission hearing held in Santa Barbara, the Commission will consider a Request for Emergency Rulemaking to close the Sisquoc River, Sespe Creek and North Fork Matilija Creek Watersheds to Fishing.

This request was filed by the Environmental Defense Center (EDC), a Santa Barbara-area environmental law firm in an attempt to protect Southern California steelhead. It has become the focus of much discussion and some controversy and has raised concerns about the long-term prospect of Endangered Species Act (ESA) protections for Southern California steelhead and how that impacts our fishing interests.

CalTrout does not support the Request for Emergency Rulemaking for stream closures primarily because Emergency Rulemaking is not warranted for any of the listed streams. While the EDC request informally states that “fishing has increased in recent years” it provides no documentation of current, imminent, or ongoing threat of “take” of endangered steelhead in the subject watershed areas.

DFG is required to enact fishing regulations that comply with the federal ESA steelhead protections. This often results in the closure of any areas of a river or stream that can be accessed by a returning ocean-run steelhead when flows allow.

Conversely, those areas of stream that are above an impassable barrier, such as a dam, are not closed under the ESA for steelhead protection. Accordingly, in the case of the above Emergency Request, it appears that DFG staff will recommend that the Fish & Game Commission deny the Request for Emergency Rulemaking and instead will take the following non-emergency actions:

1. Sisquoc River: Because Sisquoc has no permanent impassable barriers which prevent steelhead migration access, DFG will pursue standard (non-emergency) actions to assess and proceed with closure measures.
2. Sespe Creek: Due to a lack of detailed analysis of several possible barriers in Sespe Creek, DFG will conduct an assessment of those barriers prior to making any determination about future Sespe Creek closures. (While the potential for fish passage at Freeman Diversion Dam (which is below Sespe Creek) has been a matter of controversy for many years, there appears to be no single documented record or evidence of unaided passage by a steelhead from below Freeman through the fish ladder and into the mainstem Santa Clara River. Accordingly, CalTrout asserts that Freeman Diversion is an impassable barrier, and therefore, until new fish passage is available at Freeman, we believe Sespe Creek is not eligible for ESA closure.)
3. North Fork Matilija: Because there is an impassable barrier on this creek, this waterway is not eligible for closure for ESA steelhead protection.

These expected DFG responses to the Emergency Request align with the Southern California steelhead ESA listing, and are therefore supported by CalTrout.

The SoCal steelhead listing itself has many challenging aspects worth considering when we think about possible future closures.

One issue is that native coastal rainbow trout and Southern California steelhead, found in the coastal watersheds from the Santa Maria River (in San Luis Obispo) south into Baja, Mexico, are genetically identical to one another and are all Oncorynchus mykiss.

However, the “endangered” listing under the federal ESA covers only the ocean-run (anadromous) SoCal steelhead form. It is difficult to differentiate and hard to regulate the differences between the two. But, this “segregation” by life-history is necessary to maintain the ESA listing because if Rainbow numbers were added in with steelhead, the counts would be too high to qualify for the needed ESA protections.

Another issue is that many anglers want DFG to keep their favorite fishing streams open, regardless of the possible presence of ESA-protected steelhead. It’s important to note, though, that DFG is obligated under federal law to enact fishing regulations which protect listed species and preclude any “take” of those species.

“Take” is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” This means that even catch & release fishing would constitute a “taking” and would be prosecutable under federal law.

CalTrout is working closely with state and federal resource agencies, conservation groups and fly anglers to navigate these challenging rules and to provide leadership to the effort to restore SoCal steelhead and support angling interests. We are examining options which could adhere to both ESA requirements while also protecting angling opportunities, Most importantly, we continue to work to assure that even occasionally differing opinions will not fracture strong community progress for steelhead recovery.

Despite these efforts, misinformation about CalTrout’s position on the EDC request has been circulated by some. Steps to secure a retraction of false statements and to circulate accurate information are underway. Our position on the EDC request is and has been as stated above. If you have any questions about this or other matters related to our Southern California work, please feel free to contact Nica Knite, Southern California Regional Manager.