On June 4, 2015, the Court of Appeal ruled that California Fish and Game Code section 1602 (“Section 1602”) unambiguously requires notification to the Department of Fish and Wildlife (“Department”) if an entity or individual plans to “substantially divert” water, even when the legal right to use the water was previously established. (Siskiyou County Farm Bureau v. Department of Fish and Wildlife, June 4, 2015, Third Appellate District, Case No. C073735.)
Siskiyou County Farm Bureau (“Farm Bureau”) sought clarification of the rights and duties of its members under Section 1602 by alleging in part that local ranchers and farmers diverted water for decades without the Department enforcing Section 1602. By reversing the trial court, the Court was not persuaded by this or the Farm Bureau’s other contentions.
Establishing early in its Opinion that “substantial” is unambiguous, the Court focused on why “divert” also is unambiguous due to the trial court finding that the plain meaning of “divert” – lack of alteration to the streambed – would lead to absurd results, among other things.
The Court navigated through historical effects of the Gold Rush on rivers and streams, California water law principles, historical background and interpretations of Section 1602, and whether extrinsic evidence admitted by the trial court established an equally plausible statutory interpretation (which, if found to exist, would render Section 1602 ambiguous). Of particular note, the Court addressed a “concern” raised in People v. Weaver (1983) 147 Cal.App.3d Supp. 23 that Section 1602 might have been written more broadly than intended by encompassing “ordinary” agricultural pumping. Dispelling Weaver’s concern, though concluding pumping alone may trigger Section 1602’s notification requirement, the Court traced back to a 1973 Attorney General opinion while also analyzing the ordinary meaning of “divert” and related legal and administrative interpretations of the word.
What Siskiyou County Farm Bureau means is: (1) a broad set of water users – agricultural and others – must provide the Department with Section 1602 notification, which will typically require the applicant to enter into an agreement with the Department to take measures to protect fish and wildlife resources; (2) CEQA and other regulatory processes and compliance measures will be triggered by Section 1602 water diversion plans; and (3) proposed water diversions might be limited despite holding vested water rights for those proposed diversions.
Ultimately, California’s ongoing drought clearly was on the Court’s mind given its statement that “…a severe drought, which has the effect of further damaging the habitat of endangered fish species, must be part of the factual matrix…” (Opinion, p. 37.) As the Court indicated, a remedy for fixing a perceived policy defect with Section 1602 may lie “on the other side of Tenth Street, in the halls of the Legislature.” (Opinion, p. 3.) The Opinion is available at: http://www.courts.ca.gov/opinions/documents/C073735.PDF.