By TIM HEARDEN

Capital Press

An environmental attorney is questioning the California Department of Fish and Game's interpretation of a nearly 50-year-old law governing water diversions from rivers and streams.

State officials respond they have always enforced the law, but it applied virtually on a case-by-case basis.

Jack Rice, environmental counsel for the California Farm Bureau Federation, said unanswered questions remain as the state is pressuring landowners in two remote valleys of far Northern California to obtain special permits for irrigation.

Rice has argued the DFG is changing how it enforces a 1961 provision in the state's Fish and Game Code which requires landowners to notify the government if they substantially divert water. The attorneys argue the law has never applied to people simply taking water from a stream, as opposed to physically altering the channel.

But ranchers in the Scott and Shasta river watersheds in Siskiyou County have been told they could face fines or jail if they don't participate in a watershed-wide permitting program by May 31 or obtain permits on their own.

Several issues need to be resolved, Rice said.

"Does everybody, (including) the people who aren't really killing fish ... need an incidental take permit?" Rice said. "Does (Section) 1600 really require notification just for the act of diverting water for use if you don't otherwise divert the stream channel or alter the bed, bank or stream?

"And the third question is, can the department really take away the right to appeal or go through the process outlined in the right to arbitration in 1600? ... In the program, the department has removed that right," he said.

Rice steered well clear of speculating whether the Farm Bureau would participate in any legal challenges in the Scott and Shasta valleys. But he and others have expressed concern that the DFG's actions - taken to protect imperiled salmon in Klamath River tributaries - could spread elsewhere, virtually eliminating water rights in California.

Environmentalists have said the stricter standard has always existed but wasn't always enforced. Dana Michaels, a DFG spokeswoman, said the department hasn't always been notified of diversions but has always contacted the landowner when diversions have been discovered.

"They're getting more attention recently (in the Scott and Shasta valleys) as part of a recovery plan that was suggested by local landowners," Michaels said. Fish and Game wardens made 108 streambed alteration cases in 2008, the last year for which data is available, she said.

"Where things aren't enforced, it's generally because of a lack of staff," Michaels said. "We just don't have enough people to cover the state and go around looking for things."

The question of what constitutes a "substantial" diversion - and thus requires a permit - depends on the size of the diversion and the body of water, said Mark Stopher, the DFG's acting regional manager in Redding, Calif.

A small diversion on a small stream might be substantial, while a similar size diversion on a large stream is not, he said.

"Many of the diversions in the two valleys make a material difference in what's left in the stream, either individually or cumulatively," Stopher said. "We have substantial diversions in both rivers ... that strand fish, prevent fish from moving upstream or downstream and degrade water quality."

The question of whether someone is diverting in accordance with a water right "is moot at this point," Stopher said.

"A diversion with a water right could still be a substantial diversion," he said.

Online

California Farm Bureau Federation: http://cfbf.org/

California Department of Fish and Game: http://www.dfg.ca.gov/

Siskiyou Resource Conservation District: http://www.siskiyourcd.org/

Shasta Valley Resource Conservation District: http://www.svrcd.org/