Hotly Contested Challenge to the Department of Fish and Game's Authority to Regulate Streamflow Diversions
In March 2011, the Department of Fish and Game was sued in Siskiyou County by the local farm bureau who claims the Department has improperly expanded its authority to regulate substantial diversions or obstructions of stream flow under Fish and Game Code Section 1602. (Siskiyou County Farm Bureau v. California Department of Fish and Game, Case No. SCSCCVCV 11-00418.) In 2005, coho salmon in the Klamath Basin were listed as threatened under the California Endangered Species Act ("CESA"). The Department has since interpreted its authority under Section 1602 and CESA to require all agricultural streambed diversions in the Klamath Basin to obtain the necessary permits or authorizations to comply with Section 1602.
The Farm Bureau argues this expansion of the Department's authority jeopardizes water and property rights of farmers and ranchers in the Klamath Basin and transforms the Department into a de facto water agency whose mandates are at odds with the State Water Resources Control Board's jurisdiction and authority. In June 2011, the Karuk tribe, fishermen and environmentalists moved to intervene in support of the Department, claiming its broad exercise of authority is critical to their individual interests as well as the Department's ability to comply with its other statutory mandates such as protecting and restoring the coho salmon populations. When the dust finally settles in this case, it is likely to have broad implications regarding the Department's authority to regulate diversions under Section 1602 throughout the state.