Any plans to “substantially divert” water from a river or stream requires notification to the state Department of Fish and Wildlife, the California Court of Appeal found. In reversing a lower court’s decision that favored Siskiyou County Farm Bureau, the court said in an opinion published June 4, that section 1602 of the Fish and Game Code unambiguously necessitates the disclosure for any substantial diversion, whether through a diversion facility or by pumping. The appellate court decision came as a victory to the Department after the trial court determined that following the plain meaning of section 1602 would lead to absurd results.

In pertinent part, section 1602 provides that an entity may not “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 . . . where it may pass into any river, stream, or lake” absent notification to the Department first. The Farm Bureau argued that, for more than a century, farmers and ranchers in Siskiyou County used water from streams and rivers to irrigate crops without having to comply with the notification provisions of section 1602. Once the Department began imposing this notification requirement on farmers and ranchers in the County, Farm Bureau sought clarification of the rights and duties of its members under 1602 who do not alter the streambed when exercising their water rights.

The primary point of contention between the parties arose out of the interpretation of the word “divert” in section 1602. While the trial court agreed that the plain meaning of the word “divert” encompassed diversions that did not alter or harm streambeds, ultimately it found that, in application, this would lead to absurd results. The Court of Appeal, however, disagreed and, to support its conclusion, drew upon common law and judicial decisions that supported its interpretation and examined other related statutory uses of the word.