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California Farm Bureau Federation Challenges Department of Fish and Game’s Authority to Regulate Water Rights June 22, 2010 by Joseph M. Carpenter jcarpenter@somachlaw.com |
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On May 25, 2010, the California Farm Bureau Federation (Farm Bureau) filed suit against the California Department of Fish and Game (DFG), alleging that DFG has exceeded its authority by recently interpreting Fish and Game Code section 1602 as requiring surface water users with valid water rights to notify DFG prior to diverting water, and potentially to obtain a streambed alteration permit. The Farm Bureau alleges that DFG’s interpretation is contrary to the obligations prescribed under section 1602, which only apply to water diversions that substantially divert or obstruct the natural flow of a watercourse. The Farm Bureau further alleges that DFG’s interpretation constitutes a fundamental change in the application of section 1602, and will have the effect of requiring nearly every surface water user in California to notify DFG of its water use and potentially obtain a permit prior to diverting water from a watercourse. Background Fish and Game Code section 1602 requires any person, state, local governmental agency, or public utility to notify DFG before conducting any project or activity that will “substantially divert or obstruct the natural flow of ... any river, stream, or lake.” Once notified, DFG determines whether the activity might substantially adversely affect an existing fish, wildlife, or plant resource. If DFG determines that the activity may substantially adversely affect an existing fish or wildlife resource, it issues a streambed alteration permit to the entity that includes reasonable measures necessary to protect the resource, and the entity conducts the activity in accordance with the permit. If DFG determines that the activity will not substantially adversely affect an existing fish or wildlife resource, the entity may commence the activity without a section 1602 permit so long as the entity conducts the activity as described in the notification. Between March and May 2010, DFG sent three letters to agricultural water diverters in the Scott and Shasta River watersheds in Northern California, threatening civil and criminal enforcement actions for surface water diversions. The DFG informed the diverters that any individual diverting surface waters without a streambed alteration permit is vulnerable to an enforcement action by the DFG. In response, the Farm Bureau filed this action in the Superior Court of California, County of Siskiyou, seeking clarification of the scope of DFG’s authority under section 1602. The Complaint The Farm Bureau’s complaint seeks a judicial determination of the parties’ respective rights and duties under section 1602; specifically, whether agricultural water diverters with valid surface water rights are required to notify DFG prior to diverting water. The Farm Bureau alleges that the disagreement between the parties over the applicability of section 1602 focuses on the meaning of the phrase “substantially divert or obstruct the natural flow.” The Farm Bureau alleges this phrase means that notification by water diverters is only required for “activities that physically alter the manner in which water naturally flows through a watercourse”; it “does nor refer to the act of passively extracting water in accordance with a valid water right.” DFG, however, allegedly interprets this phrase to also include “the mere act of passively taking water from a watercourse in accordance with a water right.” The Farm Bureau alleges that prior to the listing of the Coho salmon under the California Endangered Species Act (CESA) in 2005, DFG did not require agricultural water users to notify DFG prior to exercising their water rights, except to the extent the exercise of those rights involved physically altering a watercourse. The Farm Bureau asserts that one of the reasons DFG reinterpreted section 1602 is to maximize participation in permitting programs, created as part of the Coho Recovery Strategy, which are designed to facilitate compliance with CESA. The Farm Bureau contends that DFG’s new interpretation of section 1602 is contrary to the origin and historical application of the statute. The Farm Bureau further contends that DFG’s new position on water diversion is at odds with the legislative scheme for the regulation of water rights because it “would essentially make DFG a de facto water agency” with the authority to regulate water rights, a function already performed by the State Water Resources Control Board. The Farm Bureau maintains that this duplication of governmental functions was not intended by the Legislature. Conclusion and Implications The Superior Court’s interpretation of section 1602 has the potential to significantly impact water rights and environmental regulation in the State of California. If the court adopts DFG’s interpretation of the statute, water diverters that have never been subject to the notification and permitting requirements of section 1602 would be required to notify DFG of their water use and potentially obtain a streambed alteration permit. For further information on California Farm Bureau Federation v. California Department of Fish and Game, please contact Joseph M. Carpenter at jcarpenter@somachlaw.com. Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn. |
