By Glen C. Hansen 

Siskiyou County Farm Bureau v. California Department of Fish and Wildlife (2015) 237 Cal.App.4th 411.

California Fish and Game Code sections 1600 et seq. were adopted in 1961 to ensure that the California Department of Fish and Game (now the Department of Fish and Wildlife, or “Department”) was notified for projects that substantially altered a watercourse. Section 1602 requires that an entity or person notify Department and obtain a Lake and Streambed Alteration Agreement (“Agreement”) before that entity or person begins any activity that will “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, or deposit or dispose of debris, waste, or other material containing crumbled, flaked, or ground pavement where it may pass into any river, stream, or lake ….” For over 50 years, ranchers and farmers in Siskiyou County have extracted water from streams and rivers under valid water rights and in accordance with relevant water adjudication decrees, in order to irrigate crops and pastures, to water livestock, and for use in their homes and businesses, without altering the applicable lake or streambed. They did so without notifying the Department and obtaining an Agreement under section 1602.

However, based on a 1973 Attorney General Opinion, the Department interpreted section 1602 to mean that notification to Department and obtaining an Agreement is required under that statute even for the mere act of extracting water from rivers, streams and lakes in accordance with a valid water right where there is no alteration of the watercourse. In 2011, the Siskiyou County Farm Bureau filed a declaratory relief action in Superior Court in Siskiyou in order to clarify the rights and duties of its members under section 1602. The Farm Bureau read section 1602 to exclude from the notification requirement those activities that take water without disturbing the streambed or bank.

The Superior Court considered extrinsic evidence and, in attempting to resolve a perceived ambiguity, held for the Farm Bureau. The trial court found that “Fish and Game Code §1602 does not require notification of the act of extracting water pursuant to a valid water right where there is no alteration to the bed, bank, or stream.” Therefore, the trial court enjoined the Department “from bringing enforcement action against agricultural water diverters for failing to notify the department of the diverter’s intention to exercise his water right absent alteration to the bed, bank, or stream.” The Department appealed.

In June 2015, the Court of Appeal for the Third Appellate District reversed. The appellate court held that, because a natural reading of the statute embraces diversions of water without alteration of or damage to the streambed itself, diversions can occur by pumping water for agricultural purposes, whether or not such pumping alters the streambed. The court rejected the extrinsic evidence provided by the Farm Bureau of a contrary statutory intent, because the extrinsic evidence failed to reveal a statutory ambiguity: “The term ‘divert’ had a long-established meaning in the context of water law before enactment of the statute, and we presume the Legislature was aware of that meaning when it used divert as it did in section 1602.” Because the term “divert” has always applied “to the taking of water from a stream or river, and not merely blocking or altering the course of the stream or river itself,” that term does not exclude ordinary agricultural pumping, according to the court. Also, the fact that the Legislature “did not explicitly address the then well-settled meaning of divert and the ensuing consequences of its actions creates no ambiguity in the word divert itself.” The Farm Bureau’s position, the court concluded, would effectively read the word “divert” out of the statute. Furthermore, the court pointed out that the apparent lack of previous enforcement by the Department did not warrant a different interpretation. “[P]ast nonenforcement does not necessarily reflect a formal administrative interpretation precluding enforcement, but could instead reflect the exercise of prosecutorial discretion or limited resources ….”

However, the recent willingness by the Department to fully enforce the notification requirement is likely due to an effort by the State to account for all available water during the current drought conditions. The court explained:

[T]aking it as true—as the trial court found—that the Department has not previously enforced section 1602 absent streambed alteration, that is an insufficient basis on which to find the statute precludes it from doing so. In the face of extreme drought and piscatorial peril, the Department now wishes to employ the full measure of the law to substantial dewatering of streams absent physical alteration to the streambeds. Its previous lack of enforcement does not rewrite the statute 

The court also held that compliance with section 1602 (and the ramifications that result from notification pursuant to the statute) does not effect a taking under the state and federal constitutions. That is because the statute “helps ensure the continued beneficial use of California’s water” and constitutes “a proper exercise of regulatory police powers.” 

In addition, the notification requirement in section 1602 did not intrude on the powers or duties of the State Water Resources Control Board to adjudicate water rights issues. The Board makes “interagency accommodations” with the Department, and any actual conflict could be resolved on an as-applied basis. As the court explained: “Here, the Department seeks no appropriative rights but merely seeks to exercise the statutory mechanism for determining whether substantial diversions have occurred that may harm fish.” 

Thus, according to the Court of Appeal, section 1602 requires that notification be given to the Department in the following three instances: 

“An entity may not [(1)] substantially divert or obstruct the natural flow of, or [(2)] substantially change or use any material from the bed, channel, or bank of, any river, stream, or lake, or [(3)] deposit or dispose of debris, waste, or other material … where it may pass into any river, stream, or lake [absent, inter alia, notification to the Department].” [Brackets in original.] 

Applying that statute to agricultural users who substantially divert water without altering the streambed “does not impair their vested water rights in any way,” but does require notification to the Department, thereby “triggering arbitration and adjudication procedures in the event of disagreement, inter alia, as to whether a substantial diversion has occurred or will occur.”

Armed with that expansive interpretation of section 1602, the Department will likely pursue those enforcement mechanisms more vigorously as the ongoing drought conditions persist in California. The court essentially invited that greater regulatory oversight:

Quite obviously, a severe drought, which has the effect of further damaging the habitat of an endangered fish species, must be part of the factual matrix considered in determining what is a reasonable use of the water—water which belongs to the people, and only becomes the property of users—riparian or appropriative—after it is lawfully taken from the river or stream. Past practices, no matter how long standing, do not change current reality. [Citation.] [¶] Contrary to the parade of horribles posited by the Farm Bureau and some allied amici curiae, and evidently assumed by the trial court, if a different policy is desired, the Legislature may rewrite the statute.

Thus, the case further bolsters the State government’s heightened supervision of the water supply in California.

Glen Hansen is Senior Counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

By Diane Kindermann, William W. Abbott and Glen Hansen

Welcome to Abbott & Kindermann’s 2015 Mid-Year Environmental update. This update discusses selected litigation, regulations / administrative guidance and pending legislation, on both the federal and state levels, in the following general areas of environmental law: (A) Water Rights and Supply, (B) Water Quality, (C) Wetlands, (D) Air Quality and Climate Change, (E) Endangered Species, (F) Renewable Energy, (G) Hazardous Substance Control and Cleanup, (H) Mining / Oil & Gas, and (I) Environmental Enforcement.

Click Here to read the complete update.

If you have any questions about these court decisions, contact Diane Kindermann, William Abbott or Glen Hansen. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Continue Reading 2015 MID-YEAR ENVIRONMENTAL LAW UPDATE

By Glen C. Hansen

On May 27, 2014, the State Water Resources Control Board (“Board”) issued curtailment notices to all post-1914 appropriative water right holders in the Sacramento-San Joaquin, Russian, and Eel River watersheds. On October 3, 2014, the Executive Director of the Board issued a letter to appropriate water rights holders that discussed the Board’s plan to temporarily lift such curtailments during future rainfall events. (The letter is found at http://www.swrcb.ca.gov/waterrights/water_issues/programs/drought/docs/curtail_lift.pdf.) Because the conditions in many of the State’s watersheds “continue to demonstrate that there is insufficient water available to meet reported demand,” the Board intends to “temporarily lift curtailments during significant storm events to capture new precipitation.” The Executive Director explained that policy as follows: 

Due to the possibility for prolonged dry conditions, the State Water Board does not want to limit the potential for water right holders in the curtailed watersheds to collect water to storage during near-term substantial precipitation events. If dry conditions persist, then it is in the public interest to maximize the amount of water diverted to storage for later beneficial use, particularly given the low storage levels at the outset of the water year. Until the time when curtailments are permanently lifted based on the water availability/demand analysis, the State Water Board plans to provide notice of periodic opportunities during storm events to divert water. Since such notices will be reactive to precipitation events, the State Water Board’s notices will be distributed on a real-time basis solely via email through the Drought email subscription available at: http://www.waterboards.ca.gov/resources/email_subscriptions/swrcb_subscribe.shtml (select Water Rights and then Drought Updates). Notices will not be mailed out. Should the State Water Board temporarily lift curtailments, you will be authorized to immediately divert water under your post-1914 right, provided your right authorizes diversion at that time and you comply with all other terms and conditions of your right. You are responsible for monitoring your email account and taking immediate action to cease diversion of water under your post-1914 rights should the State Water Board send a follow-up curtailment notice. Failure to cease diversions after that notice will be subject to enforcement.

The State Water Board considers implementation of this real-time early precipitation plan in the public interest because it increases water storage supplies at every opportunity. The State Water Board also considers the potential for injury to most senior water right holders to be minimal. The lifting of curtailment, however, does not release junior water right holders from the standard obligation to allow water to pass for senior diverters when they must do so to satisfy senior water rights. For this reason, water right holders should maintain a record of daily diversions in case a complaint by a senior right holder alleges injury resulting from the diversions. The State Water Board will request such records if complaints are received. Water right holders should monitor the State Water Board’s email notices and/or website to take advantage of these temporary actions. [Bold and italics added.]

Appropriative water rights holders are therefore urged to make sure the Board has their accurate email addresses, and to monitor all correspondence from the Board (or frequently check the Board’s website when there is the possibly of rain in the forecast).

Glen C. Hansen is senior counsel at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

 

 

Continue Reading State Water Resources Control Board Issues Notice Of Plan To Temporarily Lift Curtailments During Future Rainfall Events

The following article by Diane Kindermann was published by the Orange County Lawyer Magazine in its August 2014 issue.  It encapsulates the State of California’s response to the drought through state legislation, local regulation, litigation, and new technical guidance addressing both surface and groundwater.  To read the entire article click here.

Since the original publication of this article, on September 16 to be exact, Governor Jerry Brown signed into law Senate Bill 1168, Senate Bill 1319 and Assembly Bill 1739. This historic package of legislation establishes the framework for groundwater regulation for the first time in the State’s history. For Abbott & Kindermann’s analysis of these bills click here.

As directed by the Governor’s drought state of emergency, the California Department of Public Health (CDPH) has identified 17 communities that are at risk of running out of drinking water. The CDPH will work with these communities to ensure that the required conservation measures are in place and provide assistance to identify additional water sources. For more information visit: http://www.cdph.ca.gov/Pages/NR14-012.aspx

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 By William W. Abbott

Griffith v. Pajaro Valley Water Mgt. Agency (October 14, 2013) ___ Cal.App.4th ___. 

The long saga of the groundwater augmentation strategy for Pajaro Valley in Santa Cruz County has reached its next, and possibly final stopping point. The underlying saga is a telltale forecast of what lies ahead for California, with the inevitable conflicts generated by resource allocation and management. In Griffith, the specific conflict stems from the intersection of groundwater management strategies designed in part to better manage water resources and to reduce saltwater intrusion with the citizen rights created by Proposition 218.

Continue Reading Court Affirms Groundwater Augmentation Charge Exempt From Proposition 218 As A Water Service Charge

By Diane Kindermann, William W. Abbott, Glen Hansen and Katherine J. Hart

Welcome to Abbott & Kindermann’s 2013 Mid-Year Environmental update. This update discusses selected litigation, regulations / administrative guidance and pending legislation, on both the federal and state levels, in the following general areas of environmental law: (A) Water Supply, (B) Water Quality, (C) Wetlands, (D) Air Quality, (E) Endangered Species, (F) NEPA, (G) Mining / Oil & Gas, and (H) Cultural Resources.

Continue Reading 2013 MID-YEAR ENVIRONMENTAL LAW UPDATE

By Katherine J. Hart

In Voices for Rural Living v. El Dorado Irrigation District, the Court of Appeal, Third Appellate District, affirmed the trial court’s determinations that (1) the small project categorical exemption in CEQA did not apply to exempt an agreement for water service from CEQA review due to the unusual circumstances surrounding the agreement, and (2) a local water district lacked authority to disregard or deem unconstitutional annexation conditions previously imposed by the local agency formation commission (LAFCo).

Continue Reading Class 3 CEQA Exemption: Unusual Circumstances Exception Becoming Less Unusual?

By William W. Abbott

James Abatti v. Imperial Irrigation District (April 26, 2012, D058329) ___ Cal.App.4th ___.

In November 2006, the Imperial Irrigation District, based upon a negative declaration, adopted an Equitable Distribution Plan (“EDP”). The plan was designed to provide for the equitable apportionment of water in the event of a supply/demand imbalance. The governing board approved the plan which provided for a straight-line method of allocation among agricultural users during shortfall periods. Agricultural users were the largest users within the district, with industrial users making up a small percentage of the remainder. In 2007, the District adopted regulations implementing the EDP which provided more detail on allocations to non-residential users, including industrial. In adopting these regulations, the District relied upon the 2006 Negative Declaration. In 2008, the District adopted amended regulations, further refining the regulations. Language was added pertaining to new industrial water contracts. The District again relied upon the prior negative declaration, and relying in part on CEQA Guidelines 15162, concluded that no new environmental review was required. The petitioners then filed a CEQA challenge. The trial court denied the petition, determining that Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467 was controlling, and under the traditional substantial evidence test (as compared to the fair argument test), ample evidence supported the District’s decision to rely upon the prior CEQA document. Petitioners dismissed their other claims without prejudice, then appealed.

Continue Reading Court Affirms Use of Substantial Evidence Test in CEQA Challenge to Annual Adjustment in Water Allocation Regulations

By Glen C. Hansen

In re Consoidated Delta Smelt Cases, 2011 U.S. Dist. LEXIS 98300 (E.D. Cal. Aug. 31, 2011)

In 2008, the United States Fish and Wildlife Service (“FWS”) issued a biological opinion (“BiOp”) under section 7 of the Endangered Species Act that addressed the impacts of the coordinated operations of the federal Central Valley Project (“CVP”) and State Water Project (“SWP”) on a threatened fish known as the California delta smelt in the Sacramento San Joaquin Delta. The BiOp concluded that “the coordinated operations of the CVP and SWP, as proposed, are likely to jeopardize the continued existence of the delta smelt” and “adversely modify delta smelt critical habitat.”

Continue Reading In Operation Of Water Projects, Federal Agencies Enjoined From Implementing Delta Smelt Biological Opinion