On June 4th, 2015, the Third District Court of Appeal reversed the Siskiyou County Superior Court’s injunction against the California Department of Fish and Wildlife (“CDFW”), holding for the first time that the State’s streambed alteration program extends to existing water right diversions even if they do not physically alter streambeds. The Superior Court last year had stopped CDFW from bringing enforcement actions against longtime agricultural water users for continuing to divert surface waters from within the County without first obtaining a streambed alteration agreement pursuant to Section 1602 of the Fish and Game Code. Siskiyou County Farm Bureau v. California CDFW of Fish and Game, Case No. SCSCCV11-00418. In a setback for water rights holders, the Court concluded that Section 1602-ostensibly enacted to counteract mining-related streambed alterations-unambiguously embraces ordinary and long-time water diversions held under existing rights.
Factual And Regulatory Background
In response to concerns that industrial and other activities were causing adverse effects on anadromous fish and other wildlife dependent on instream resources, the California Legislature first enacted Fish and Game Code section 1600 in 1961. Under Section 1602, any person contemplating activity that substantially diverts or obstructs the natural flow of-or substantially changes or uses material from the bed, channel, or bank of-a water course is required to give prior notice to CDFW. CDFW must then determine whether the planned activity could adversely affect the fish and wildlife that depend on that water course. If so, CDFW and the property owner enter into a streambed alteration agreement (SAA) that includes terms to mitigate the planned activity’s potentially adverse consequences on fish and wildlife. If the property owner does not agree, the matter can be submitted to arbitration.
Following the coho salmon’s listing under the California Endangered Species Act (CESA) in 2005, CDFW developed enforcement criteria that presumed that any diversion of water pursuant to a water right was “substantial” and therefore subject to notification requirements under Fish and Game Code section 1602. This policy represented a significant departure from CDFW’s historical approach to enforcement, which until then had primarily targeted new or modified diversions that physically altered the bed or bank of the water course. In 2005, CDFW sent letters to diverters within Siskiyou County-including diverters taking water under 100-year old water rights-informing them of the new notice obligations under section 1602. In addition, the letters stated that:
- CDFW considered agricultural diversions to be subject to Section 1602;
- Recipients had two options for compliance: participate in a watershed-wide agreement through Siskiyou Resource Conservation District or obtain an SAA individually;
- Either compliance option required compliance with all applicable code provisions, including CESA and the California Environmental Quality Act (CEQA); and
- The recipient would be required to obtain an incidental take permit if the diversion, either individually or in conjunction with other diversions, could “take” (i.e., capture or kill) coho salmon.
Not surprisingly, this effort to extend the 1602 program to long-held water rights diversions was met with substantial opposition.