Last summer, the Third District Court of Appeal issued a sweeping ruling in Siskiyou County Farm Bureau v. Department of Fish and Wildlife, which made any substantial diversions of water subject to the streambed alteration agreement provisions of the California Fish and Game Code (“CDFW”).  The court ruled that California Fish and Game Code section 1602 (“Section 1602”) gives the California Department of Fish and Wildlife broad authority to regulate water diversions, even when diverters have the legal right to use the water.

This decision caused ripples throughout California, as holders of water rights were now required to provide notice to the CDFW of their historical diversions. Such notification can often necessitate a Streambed Alteration Agreement (which is now a misnomer, as now parties may be required to enter into the agreement despite having never altered the streambed) and potential mitigation measures imposed by the CDFW.

The court held that the most natural reading of the term “divert” as used in Section 1602, when viewing it from historical applications and through the existing legal lens, includes diversions of water that do not cause alteration of or damage to the streambed. The court recognized the implications of its decision, but stated that a fix was to be found “in the halls of the Legislature” as a defect, if any, is a policy issue.  The court’s statements were heard by Senator Jim Nielsen, who recently introduced S.B. 1026.  This Bill seeks to reign-in Section 1602 to limit the definition of diversions to only those diversions that actually alter the bed, channel, or bank of a river, stream, or lake.

If the proposed Bill stays afloat through both chambers and is signed into law, it will provide relief to owners of water rights who draw water from streams without ever altering the streambed. However, owners of water rights may have an uphill battle ahead of them; earlier this week, S.B. 1026 was swamped in its first attempt to sail out of the Senate Committee on Natural Resources and Water on a 3-4 vote.  This does not mark the end of S.B. 1026, but it undoubtedly slows its progress.  Stay tuned for updates on this Bill and other water legislation in the California Legislature’s pipeline.