Farm Bureau sues DFG over water rights authority

Issue Date: June 2, 2010
Dave Kranz

In a case aimed at determining the scope of a long-standing state environmental law, the California Farm Bureau Federation filed a lawsuit that charges the state Department of Fish and Game with exceeding its authority by seeking to regulate farmers’ rights to irrigate their crops. Farm Bureau filed the lawsuit in Siskiyou County Superior Court last week, and said the case has statewide ramifications.

On three occasions this spring, the Department of Fish and Game sent letters to farmers and ranchers along the Scott and Shasta rivers in Northern California, warning them of possible civil and criminal penalties if they do not notify the department of their water use and potentially obtain a permit from the agency. That permit, known as a Lake and Streambed Alteration Agreement, has never before been required for farmers who use water from the rivers to irrigate crops without actually altering the riverbed itself.

In its lawsuit, Farm Bureau alleges that the Department of Fish and Game recently reinterpreted a law enacted in 1961, in an attempt to create a “fundamental change” that would give it broad new authority to oversee water rights—a function already performed by the courts and a separate state agency, the State Water Resources Control Board.

The Department of Fish and Game began following the new interpretation, Farm Bureau says, as it pursued a recovery strategy for coho salmon in the two rivers, which are protected under the state Endangered Species Act.

“Farmers and ranchers understand that Fish and Game has a legitimate role to play in protecting fish, and the department already has many other ways to do that,” said Chris Scheuring, managing counsel of the California Farm Bureau Natural Resources and Environmental Division. “Farmers along the Scott and Shasta rivers have taken a number of steps to benefit the salmon. But we do not believe Fish and Game has blanket authority to regulate every farmer’s water rights, and that’s what it’s trying to do.”

Scheuring said the streambed-alteration rules, originally drafted in response to gravel mining, were never intended to apply to farmers who merely lift a headgate near a stream to obtain water for crops. Reinterpreting the original rules, he said, leads to a duplication of government functions never intended by the Legislature.

“Even though this law has been in place for nearly 50 years, it’s only recently that the department has asserted this new authority,” said Jack Rice, associate counsel for CFBF. “This is a real change.”

At issue is a particular section of state law, Fish and Game Code section 1602, which requires that Fish and Game be notified prior to projects that substantially alter a streambed or lakebed or the way water naturally flows within it. In its lawsuit, the Farm Bureau acknowledges that some activities have always required “1602” notifications, such as the construction of push-up dams, installation of new headgates, placement of rip-rap along a streambed for stabilization and others.

But, Farm Bureau said, farmers diverting water in the Scott or Shasta river watersheds have not historically notified Fish and Game of “the mere act of taking water from a watercourse,” nor have water users in other parts of California.

“I really feel like this is an issue that’s important to Farm Bureau and very important to the entire state,” said Siskiyou County Farm Bureau President Jim Morris, who farms in the Scott Valley. “It affects our small communities right now but it won’t be long before it affects the rest of water diversions in the state. Fish and Game has made it clear that they’ll test it here and take it down the state.”

Morris said farmers in the Scott and Shasta valleys have worked for decades with the state agency and with local resource conservation districts to enhance fisheries, and have been praised by Fish and Game for their efforts. But he said the new action by Fish and Game on streambed alteration agreements would cause it to become “another water regulatory agency.”

“We feel the water regulatory agencies we have now should be sufficient to regulate water without introducing more,” he said.

Through its lawsuit, Farm Bureau seeks to clarify the law and to relieve farmers of the additional time, expense and threat of punishment imposed by the extra layer of regulation.

Farm Bureau said the expanded scope of Fish and Game activities under section 1602 would impose “significant obligations” on farmers including:

  • The fees associated with submitting a notification to Fish and Game and obtaining a streambed alteration agreement;
  • The time and expense required to notify and negotiate an agreement before diverting water under an established water right;
  • The time and expense to comply with the California Environmental Quality Act, which would become necessary “merely to divert water in accordance with an established water right”;
  • Repeating the process at least every five years.

Scheuring called the lawsuit a test case that “will have widespread repercussions” for water rights and environmental enforcement statewide.

“This case ultimately bears on anyone who diverts water,” he said. “These northern ranchers will be a test case for the whole state.”

While the case works its way through the courts, Scheuring advised farmers and ranchers to continue cooperating with the Department of Fish and Game.

Scott Valley farmer Morris said farmers in the area “are excited about doing more things that are fish friendly” but that they prefer to work cooperatively with the department rather than in “a regulatory fashion.”

“We are more than happy to work with the department for fishery enhancement and always have been,” Morris said. “We don’t want to see this relationship broken down over issues like this because it’s been a good relationship. We’ve done excellent things for fish and we want to continue to do that.”

(Dave Kranz is editor of Ag Alert. He may be contacted at dkranz@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.




Special Reports

Features

Series

Special Issues

Special Sections