Siskiyou Farm Bureau vs Cal dept fish and game regulate stream diversions 042912

At 8:30 a.m. on Monday, Superior Court Judge Karen Dixon will begin hearing pretrial motions. The full trial will begin on Tuesday at 9 a.m.

At issue is section 1602 of the California Fish and Game Code – Lake and Streambed Alteration Program – which CDFG says requires irrigators to obtain permits for their surface water diversions.

The 1602 section of the code became law in 1961 and irrigators say that it has never been applied to the simple act of diverting water. Instead, agriculturalists say the code has historically only applied to alterations of the actual streambed such as gravel mining, push-up dams and the installation of new headgates.

Last year, CDFG sent letters to Scott and Shasta river farmers using surface diversions, warning them that they were required to get the permit for the act of using the water diversions.

A press release issued by the Siskiyou Farm Bureau in March, 2011 said that CDFG’s interpretation of the code puts farmers in an “impossible position.”

“The Siskiyou County Farm Bureau has filed suit to protect its members ability to provide water to their crops,” the release said, “asking the court to prevent the California Department of Fish and Game from enforcing its new interpretation of a 50-year-old law.”

Siskiyou County Farm Bureau President Rex Houghton is quoted in a recent edition of the weekly agricultural newspaper Ag Alert, saying, “DFG has been quite clear they intend to expand the newly enhanced 1602 permit requirements statewide to all irrigation stream diversions after implementing it on the Scott and Shasta rivers.”

According to the text of section 1602 of the code, “An entity may not substantially divert or obstruct the natural flow of, or substantially change or use any material from the bed, channel, or bank of, any river, stream, or lake, or deposit or dispose of debris, waste, or other material containing crumbled, flaked, or ground pavement where it may pass into any river, stream, or lake” unless the proper permitting process is followed and approved or the entity is notified by the department that the action is not substantial.

Scott Valley irrigator Preston Harris said in his opinion, the word “substantial” is too subjective to be used in such a regulatory fashion. “The idea that opening a headgate alters a streambed is ridiculous,” Harris said. “This is essentially a re-interpretation of a code that is intended to address physical alteration of the streambed. It’s not about water or fish. It’s about control.”

PCFFA President Glenn Spain told the Capital Press in June, “Fish and Game Code section 1602 set some limits on how much water anyone can take out of a river. No farmer has the right to dewater a river and put whole industries that depend on the river downstream out of business.”

Wendy Park of Earthjustice, the public interest law firm representing the four groups, said the groups wanted to intervene in the case to “defend the department’s interpretation of the statute.” She said the Farm Bureau’s claim that Section 1602 does not apply to farmland irrigations is “not correct.”

“These organizations have a strong interest in the outcome of the case and how it is decided because it will determine what protections are available for wildlife and fish and whether certain stream diversions are regulated by the department,” Park said. “If it is decided they can’t be regulated, that could result in a loss of fish protection, and that will adversely affect these groups.”

She cited affects on the Karuk Tribe’s cultural activities for which salmon is used and members of the PCFFA and Klamath Riverkeeper who are commercial fishermen and depend on healthy fish.

In July, Siskiyou County Court Commissioner JoAnn Bicego ruled that though the groups had an interest in the outcome of the lawsuit, the interest was not direct enough to allow them to intervene.

As a result, the Siskiyou County Farm Bureau will go one-on-one with CDFG next week to decide whether the state agency can regulate stream diversions.