Issue Date: January 9, 2013
By Steve Adler
Rex Houghton stands at a headgate on the Little Shasta River. A lawsuit established that Houghton and other farmers in the region do not need a permit from state fish and wildlife officials to irrigate their crops.
In an important decision that protects private water rights while maintaining environmental protections, a Siskiyou County Superior Court judge has ruled that a state agency overstepped its authority in trying to regulate farmers’ water use.
The decision by Judge Karen L. Dixon determined that the California Department of Fish and Game had exceeded its authority by requiring farmers and ranchers to obtain a permit from DFG—called a Lake or Streambed Alteration Agreement or “1600 permit”—before they irrigate their crops. In 2011, the Siskiyou County Farm Bureau filed suit against DFG—which became known as the Department of Fish and Wildlife this month—on behalf of members who farm along the Scott and Shasta rivers.
“This ruling establishes an important, statewide precedent,” Siskiyou County Farm Bureau President Jeff Fowle said. “There is no doubt that if the department had been able to expand its authority here, it would have tried to regulate water rights elsewhere in the state. This decision reaffirms that water rights are administered solely by the courts and State Water Resources Control Board. Now, we can turn our attention to finding collaborative ways to improve conditions for fish while maintaining the sustainability of our farms and ranches.”
Fowle said farmers and ranchers in Siskiyou County were very pleased with the judge’s decision and that it is now time to move forward in addressing natural resource issues.
“We would like to get away from the whole idea of agencies managing problems into perpetuity and begin actually solving problems to the benefit of all involved,” he said.
The case centered on Section 1602 of the Fish and Game Code, which requires individuals to notify the state agency and potentially obtain a Lake or Streambed Alteration Agreement before conducting certain activities that alter a streambed. Permits have been required under the section for gravel mining, construction of push-up dams, replacing infrastructure and other projects that physically alter streambeds—but DFG began notifying landowners along the Scott and Shasta that they would need to obtain permits simply to open an existing headgate or activate an existing pump in order to irrigate their crops.
In her decision, Judge Dixon determined that the state Legislature “did not intend to include the act of diverting water to a water right to be within the regulatory scope of Section 1602.”
Dixon wrote that had the state agency prevailed, it would have had an economic impact on water rights holders that would have been disproportionate to others within the scope of the statute.
“The economic impact would reasonably be severe to the point that it would jeopardize the continued existence of the small agricultural water rights holder,” she wrote. “Surely the Legislature did not intend such outcomes. The effect on the agricultural industry in California could be devastating and, in turn, the resultant loss to the state economy would be disastrous.”
The judge also ruled that the defendants must pay court costs and the plaintiffs’ attorney fees.
In its lawsuit, the county Farm Bureau said the requirement would have been a “fundamental change” in the application of the code that would have jeopardized both water rights and property rights for farmers and ranchers.
“We understand that the department wants to protect salmon in the rivers, but it has many other ways to do that already,” said Rex Houghton, the immediate past president of the county Farm Bureau. “Farmers will continue to work collaboratively with the agency to improve conditions for fish. The outcome does not change the notification requirement for activity that physically alters a streambed, but it is important to establish that the department can’t require a permit for farmers simply to exercise their water rights.”
Like Fowle, Houghton said he hopes that everyone involved can “all sit down at the table and work through some of the issues that need to be addressed so we can quit using all of our resources to defend ourselves from their next plan of what they think is best for us.”
Houghton said the ruling should send a clear message to the agencies that “California agriculture will stand together and fight an issue that is going to affect the whole state. Everyone supported us up and down the state and I’d like to thank everyone for that.”
Because of the statewide implications of the case, the Siskiyou County Farm Bureau received support for the lawsuit from the California Farm Bureau Federation and county Farm Bureaus throughout the state. Attorney Darrin Mercier of Yreka, who is also a rancher in the Shasta Valley, argued the case on behalf of the county Farm Bureau.
Jack Rice, CFBF environmental and natural resources counsel, said it is important to understand the scope of the decision.
“It does mean that water users do not need to notify the Department of Fish and Wildlife prior to exercising their water right. But the department must still be notified of any activity that substantially alters a streambed, bank or channel, even if that alteration is needed in order to exercise your water right,” he said.
Rice emphasized that in addition to being an important decision that reaffirms water rights and how they are administered, the decision also opens the door to finding new ways to cooperate to improve conditions for farmers, ranchers and fish.
“Farm Bureau recognizes this opportunity and is committed to supporting its members in working with the agencies and other stakeholders to find solutions that are not focused on conflict,” he said.
(Steve Adler is associate editor of Ag Alert. He may be contacted at firstname.lastname@example.org.)
Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.
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