Siskiyou County Farm Bureau v. CDFG
I have had several inquiries regarding the ongoing lawsuit between Siskiyou County Farm Bureau and the California Department of Fish and Game (CDFG). As it is an ongoing lawsuit I am limited to what can be shared. However, since the hearings have begun, I am now able to share some background.
CDFG has re-interpreted Fish and Game Code 1602, Streambed Alteration Agreement, which is a requirement for individuals to apply for a permit before disturbing the streambed or bank in the act of diverting the natural flow of the stream or river. In order to secure a 1602 permit, for activities in a watershed which there are species listed under the Endangered Species Act, individuals also need to apply for an Incidental Take Permit (ITP). The costs associated with securing these permits range from $5,000 to over $100,000, depending on the “size” of the project and how long it takes to go through the California Environmental Quality Act (CEQA) process, which in some cases is more than a year. What can grow without water for a year? Also, “size” of the project is not objective, but rather a subjective determination by the Lead Agency, in this instance the CDFG.
The re-interpretation is that CDFG is now trying to require individuals who open their headgates, to exercise their water rights, to get a 1602 permit and thus an ITP. Mind you, these individuals have adjudicated water rights, most of which are pre-1914 and are also watermastered by the California Department of Water Resources (DWR). It is our opinion that opening a headgate to exercise a water right does not constitute streambed alteration and therefore does not require the landowner to secure a 1602 permit and an ITP.
On July 19, 2011, the Earth Justice, along with a multitude of other environmental activist groups, filed to intervene in the case to sit with the CDFG, with the desire to ultimately reduce and take water rights from land owners.
Here is the press release I wrote in response to the Earth Justice intervention filing.
It comes as no surprise that Earth Justice has filed for intervention in the case of Siskiyou County Farm Bureau v California Department of Fish and Game. Once again the environmental activists are attempting to regulate farmers and ranchers out of business in the Scott and Shasta Valleys. Meanwhile, the active environmentalists, the farmers and ranchers, continue to actively work to recover salmonid populations.
This lawsuit is about a new interpretation of a very old law. This new interpretation, by the Department of Fish and Game, is going to be very expensive and pose a significant regulatory burden for our members. Our question is not what “divert” means, but why you need a “streambed alteration agreement” if you do not alter the streambed – plain English.
Certainly, there are numerous laws that require balancing of uses and we are committed to following the law. The Endangered Species Act, which is really driving many of the activities up here, is the most significant. But this is not about balancing uses or trying to avoid doing things for the fish; this is about the Department of Fish and Game and their code, 50 years after the fact, saying that you need a streambed alteration agreement, regardless of whether you alter any streambeds.
Siskiyou County has some of the most progressive and engaged farmers in the state. Used often as an example by many agencies as a positive model. Over 80 percent of rivers and streams have been fenced to more effectively manage grazing. All of the major stream extractions have fish screens in place and properly designed bypasses to prevent fish from entering irrigation ditches. And numerous other mitigation measures and habitat enhancements have been put in place.
The farmers and ranchers of this county have worked diligently for the past 20 years to create a salmonid haven, rich in diverse habitat with beautiful rearing areas. Siskiyou County Farm Bureau is currently engaged with agencies and local environmental interests to study and implement salmonid enhancement projects. Additionally, this past spring, several individuals from the Department of Fish and Game have even stated that habitat is no longer the limiting factor; it is getting enough returning spawners to the habitat.
We do not believe that Earth Justice has any interest in this case. We are asking the court to decide what obligations our members have under section 1602. This is just a question between the Department of Fish and Game, as the entity charged with enforcing section 1602, and those who are questioning the department’s new interpretation. Earth Justice really does not have any legal interest in whether a farmer needs to start notifying the Department before he or in many instances the watermaster, opens his measured headgate.
1st Vice President, Siskiyou County Farm Bureau
Following the intervention hearing, our county Farm Bureau President released the following statement.
I would like to personally thank all of the fellow county Farm Bureaus who are supporting our effort. It is truly a “David vs Goliath” situation and will have ramifications for the entire state. A heartfelt thanks to everyone supporting this effort to protect the water and property rights of all landowners.
As the case proceeds, I will continue to update this post. The next hearing will be towards the end of August.