A request for a declaratory relief action was filed by the
California Farm Bureau Federation earlier this year in the
Siskiyou County Superior Court system regarding an alleged
DFG reinterpretation of DFG code 1602, which pertains to
restrictions and agreements on water diversions and waterway
obstructions.
In the Farm Bureau’s submitted request, it is claimed that
the interpretation of 1602 will “require essentially every
person that diverts water in accordance with a surface water
right” to notify the DFG before exercising that right.
The sentence in question reads “An entity may not
substantially divert or obstruct the natural flow of, or
substantially change or use any material from the bed,
channel or bank of, any river, stream, or lake” without
notification of the intended action or the requisite action
identified by the department.
The Farm Bureau’s brief claims that the interpretation of
the word “substantial” is what has changed with respect to
DFG’s enforcement actions, noting that the bureau believes
that the DFG has now broadened the scope to include any
water diversion.
The brief claims that the interpretation is “not supported
by the original or historical implementation of 1600 et
seq.” and that the 1600 group of codes “was never intended
to apply to the mere act of extracting water in accordance
with a valid water right.”
In seeking a declaratory relief action the Farm Bureau is
looking for a judicial decision as to the rights and duties
of the bureau and DFG concerning whether 1602 requires
notification prior to taking water.
Submitted by the bureau as evidence are letters sent from
the DFG to farmers in the Shasta and Scott rivers’
watersheds that the bureau is claiming contain the new
interpretation of 1602, along with the implication of
various fees and fines for those not complying with the
notification procedures.
The bureau says in the brief that those fees and fines could
total approximately $25,000 for violation of the
notification requirement, as well as $1,000 and possible
jail time. The bureau also states that the alleged
reinterpretation would result in a number of added costs in
time and money for all water diverters in the two
watersheds.
As of June 18, the DFG had not submitted any response to the
allegations of the Farm Bureau in the Siskiyou County
Superior Court case on file.
Tuesday, the board of supervisors were seeking information
on how to show support for the Farm Bureau’s case. County
Counsel Thomas Guarino listed a number of options available
without financial impact, including filing an amicus brief,
intervening in the case or finding standing for the county
to file its own lawsuit.
An amicus brief is filed by a non-party to a case as a
voluntary submission of information pertaining to one side’s
argument, while intervening is done with the court’s
permission to enter in a lawsuit that has already started.
District 1 Supervisor Jim Cook stated that in an informal
conversation with the Farm Bureau’s attorney, he found it
unclear what course of action the bureau would like the
county to take. Guarino was then directed to discover the
option preferred by the bureau and bring back the
information for a future supervisors meeting.
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