Re: Fish and Game Code §1602 

Please recognize that this correspondence is Siskiyou County Farm Bureau's opinion and is not intended to advise any individuals or other entities regarding the ITP/SAA Program.

 

Each landowner and entity affected by the program is in a unique situation requiring the consideration of different factors and should attain advice particular to them.

We also wish to be clear that while this correspondence questions the validity of the Department's interpretation of §1602, it is not intended to attack the ITP/SAA Program itself. We recognize that extensive effort has gone into developing the ITP/SAA Program and that the program may provide a very valuable tool for some landowners. Nonetheless, the Department's new interpretation of a very old environmental statute has extraordinary implications for agriculture that cannot be ignored. The central question is whether the Department correctly asserts that §1602 applies to a whole range of activities that up to this point have never been regulated under the Fish and Game Code.

As the Department describes its authority in the ITP/SAA Program, farmers and ranchers are obligated to comply with §1602 for such routine activities as turning on a pump, opening a head gate, crossing a stream with a vehicle or livestock, and building or fixing fence near a creek. Should the ITP/SAA Program establish that such routine agricultural activities are subject to §1602, it would impose obligations on farmers and ranchers throughout the state that I don't believe the legislature never imagined in 1961. For example, while it is clear that constructing a stream crossing by placing rock within the streambed would require a streambed alteration agreement, it does not make sense that using that crossing three years later would also require an agreement. It is hard to fathom how the act of crossing a stream is a substantial alteration of the bed, bank, or channel.

 

However, under the ITP/SAA Program, the "moving of livestock and vehicles across flowing streams or intermittent channels and/or the Š use of stream crossings"1 is a covered activity. If it is a covered activity under the ITP/SAA Program, there is no reason to believe that the Department will not also assert that similar activities elsewhere in the state are subject to §1602.

Although there have been assertions by the Department that the broad interpretation of §1602 underpinning the ITP/SAA Program will only apply in the program area, no such limitation exists. The meaning of §1602 is what it is and it cannot be narrowed by informal statements from agency personnel. While it is possible that the applicability of §1602 could be clarified by formal regulations, any statements or internal policy that purport to do so and which have not gone through the regulatory process have no enforceable effect. So we must expect that however the Department interprets §1602 in the ITP/SAA Program is how it will soon be interpreted throughout the state. Given that this interpretation seems to be continually expanding, the question for agriculture is whether we should try at some point in some manner to challenge it, or merely wait to see how it progresses. Challenging the Department, however, does not guarantee success. Not only is litigation expensive and time consuming, but an adverse outcome could firmly establish the Department's assertions of authority.