1602 Notification Applies to Substantial Diversions of Water That Do Not Alter or Damage Streambeds

Siskiyou County Farm Bureau v. Department of Fish and Wildlife

(2015) --- Cal.App.4th ---

The Third District Court of Appeal recently held that the plain meaning of Fish and Game Code section 1602 requires notification to the California Department of Fish and Wildlife (“CDFW”) for substantial diversions of water that do not alter or damage a streambed itself.

The case arose when the CDFW sought to enforce the notification requirements of section 1602 against the ranchers and farmers of Siskiyou County, who had previously extracted water from streams and rivers to irrigate crops, water livestock, and for other residential and commercial uses without a Lake and Streambed Alteration Agreement. Plaintiff Siskiyou County Farm Bureau filed an action for declaratory relief seeking clarification of the rights and duties of those water users who did not alter or damage the streambed while taking water for beneficial use. Specifically, the Plaintiff sought confirmation that the term “divert,” as used in section 1602, required alteration or damage to a streambed to trigger notification requirements.

The trial court found that section 1602’s plain meaning supported CDFW’s position that the term “divert” applied to water diversion that did not alter or damage a streambed, but that the statute was latently ambiguous and that “applying the plain meaning would lead to absurd results, raise doubts about the constitutionality of the statute, and cause a conflict between the [CDFW’s] duties and the [State Water Resources Control] Board’s duties.”

The Third District Court of Appeal reversed, holding that section 1602 was not ambiguous and that under the statute’s plain meaning, the term “divert” includes pumping and other methods of taking water that did not alter or damage the streambed. The Court also held that applying the plain meaning of the statute would not lead to absurd results, would not cause regulatory overlap between CDFW and the State Water Resources Control Board, and would not impair any existing vested water rights, given that section 1602 is a notification statute. The Court’s decision provides important clarification of section 1602’s applicability, especially given the state’s current water crisis and the CDFW’s renewed focus on enforcement under its Lake and Streambed Alteration Program.

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