A Victory for Water Users in Siskiyou County

by Nossaman LLP

Water users in  Siskiyou County  have avoided an additional hurdle to exercising their valid water rights, according to the Siskiyou County Superior Court.  On December 24, 2012, Judge Karen L. Dixon held that the legislature did not intend section 1602 of the Fish and Game Code – which makes it unlawful for any person to "substantially divert or obstruct the natural flow of a stream" – to include diversion of water pursuant to a water right.


In 2005, the Fish and Game Commission listed coho salmon (Oncorynchus kisutch) north of Punta Gorda as threatened and south of Punta Gorda as endangered under the California Endangered Species Act (CESA).  Pursuant to the CESA, the state has placed a high priority on protecting threatened and endangered species, anda substantial portion of the recovery efforts for the species is placed on the Department of Fish and Wildlife (DFW), formerly the Department of Fish and Game.  A number of  populations (or evolutionarily significant units) of the coho salmon are also listed under the federal Endangered Species Act (FESA), including the populations that spawn in California streams both north and south of Punta Gorda.

After listing coho salmon under CESA, the DFW began planning programs to protect the species through more rigorous enforcement of its Lake and Streambed Alteration Program.  The new enforcement criteria included a presumption that any diversion of appropriated or unappropriated water – including any riparian diversion – is substantial and subject to notification under section 1602.

The Parties' Contentions

Plaintiffs, various members of farming and ranching communities in Siskiyou County who have perfected both riparian and appropriative rights to the use of water on their property, brought suit against DFW seeking declaratory relief and clarification from the court regarding the new enforcement criteria by DFW.  The Plaintiffs contended, in part, that the legislature never intended that section 1602 would apply to extracting water pursuant to a water right.

DFW countered that it has the authority to require notice of any "substantial diversion" of water pursuant to the Fish and Game Code and, because the flows in the water systems in Siskiyou County are so low, any extraction of water pursuant to a water right by an agricultural user is substantial because it reduces stream flow "to a point that will not support the propagation of the endangered coho salmon."

Court's Discussion

The court held that DFW's interpretation of section 1602 is unlawful because it would give DFW authority to prohibit a water user from using its allotted water if DFW believes a species would be adversely affected, in effect making DFW a regulator of water rights.

The court explained the process for granting water rights:

  1. The SWRCB works with DFW to review an applicant's grant of water.
  2. DFW informs the SWRCB how a grant may impact fish and wildlife and recommends certain conditions that should be in place.
  3. The SWRCB will then grant an application, subject to the recommended conditions.

The court rejected DFW's argument that the Legislature intended to bring the exercise of water rights within the scope of section 1602 when diversion has a substantial effect on fish and wildlife because that would fundamentally alter the administration of water rights.  The court explained that DFW's interpretation of section 1602 would allow DFW to require notice and a Lake Streambed Alteration Agreement from an applicant who wishes to exercise his water rights already granted in an application, without taking into account other factors that are considered by the SWRCB in approving a grant in the first place.  DFW's interpretation, the court reasoned, would thus make the duties of the SWRCB redundant and in effect preempts the SWRCB's exclusive authority in granting and regulating water rights. 

Nossaman, LLP will be tracking this case to see if the DFW will appeal.  You can subscribe for future E-Alerts, and other Nossaman news, here.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Nossaman LLP | Attorney Advertising

Written by:

Nossaman LLP

Nossaman LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.