BILL ANALYSIS Ķ
SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
Senator Fran Pavley, Chair
2015 - 2016 Regular
Bill No: SB 1026 Hearing Date: April 12,
2016
-----------------------------------------------------------------
|Author: |Nielsen | | |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Version: |February 12, 2016 |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|William Craven |
| | |
-----------------------------------------------------------------
Subject: Department of Fish and Wildlife: lake or streambed
alteration agreements
BACKGROUND AND EXISTING LAW
1. Fish and Game Code.
California has numerous state laws designed to protect fish and
wildlife. This bill would affect Fish and Game Code Section 1602
which is commonly referred to as one part of the "streambed
alteration" statute which begins at Section 1600. It contains
the provisions relating to permits for streambed and lake
agreements that, when issued, determine the extent to which a
planned activity within a stream or river may adversely affect
fish or wildlife or habitat and what off-setting mitigation may
be required. In the absence of a permit, the section states that
an entity may not substantially divert or obstruct the natural
flow of stream or deposit or dispose of material. Existing law
requires the entity to notify the Department of Fish and
Wildlife (DFW) which triggers the negotiation of the standards
that may apply to the request. At that point the entity and
DFW enter into a streambed alteration agreement (SAA) that
contains any necessary provisions to mitigate the planned
activity's potentially adverse consequences.
This law was enacted first in 1970, reenacted in 1976, and
amended in 2003, but the purpose of the law has never changed.
The law declares "the protection and conservation of the fish
and wildlife resources of this state are of utmost public
SB 1026 (Nielsen) Page 2
of ?
interest. Fish and wildlife are the property of the people and
provide a major contribution to the economy of the state, as
well as providing a significant part of the people's food
supply; therefore their conservation is a proper responsibility
of the state."
A permit fee is required, and the law provides for binding
arbitration in the event of a disagreement.
Existing law and determinations made by DFW do not require
physical alteration of a streambed for the permitting provisions
to apply, although that was contested in recent and unsuccessful
litigation brought by the Siskiyou County Farm Bureau and which
this bill seeks to address.
Specifically, section 1602 prohibits, in relevant part, those
diversions that substantially divert or obstruct the natural
flow of the river in the absence of the permit described
earlier.
The section does not apply to the routine maintenance and
operation of water supply, drainage, flood control, or waste
treatment and disposal facilities except when the work described
in the SAA has substantially changed, or the conditions
affecting fish and wildlife resources have substantially
changed.
2. Water Law.
Water use by those with appropriative or riparian rights is
limited by the "reasonable use" doctrine which forbids the waste
of water or its unreasonable use. In addition, the public trust
doctrine vests the state with sovereign authority over all
navigable waterways.
Although the term "water rights" is often rhetorically discussed
as an absolute concept of ownership, the water in California is
in fact owned by the people of California. Water Code Section
102. The right to use water may be acquired in the manner
provided by law.
The "public trust doctrine" requires the state, as a trustee, to
2
SB 1026 (Nielsen) Page 3
of ?
manage its public trust resources (including wildlife and water)
to derive the maximum benefit for its citizenry. The benefits to
be considered and balanced include economic, recreational,
aesthetic and environmental; if at any time the trustee
determines that a use of water other than the then current use
would better serve the public trust, the state has the power and
the obligation to reallocate that water in accordance with the
public's interest. Even if the water at issue has been put to
beneficial use (and relied upon) for decades, it
can be taken from one user in favor of another need or use. The
public trust doctrine therefore means that no water rights in
California are truly "vested" in the traditional sense of
property rights. Sawyer, Primer on California Water Law, 10.
In all contexts, what constitutes a reasonable use of water
depends on many factors and often involve "statewide
considerations of transcendent importance." These statewide
considerations, as defined in court decisions and the state
constitution, are that 'limited water resources be put only to
those beneficial uses "to the fullest extent of which they are
capable," that "waste or unreasonable use" be prevented, and
that conservation be exercised "in the interest of the people
and for the public welfare."
PROPOSED LAW
This bill limits and re-defines the threshold for a streambed
alteration agreement to require substantial alterations of the
"bed, channel, or bank" of any river or stream. It also adds an
exemption to section 1602 of the Fish and Game Code that would
apply to "routine maintenance and repair of facilities for
instream agricultural irrigation diversions."
ARGUMENTS IN SUPPORT
According to the author, the original intent of section 1602 was
limited to large construction projects and mining operations
that could substantially alter a streambed or channel and
thereby physically divert the flow of a river or stream. The
author argues that in 2005 DFW expanded its interpretation of
the section to require agricultural water right owners to obtain
permit for extracting water in routine and ongoing operations.
In addition to the burdensome nature of the permitting process,
the author predicts that in low water years, permits will not be
3
SB 1026 (Nielsen) Page 4
of ?
issued.
The California Central Valley Flood Control Association is
particularly supportive of the provision regarding routine
maintenance and repair of diversion facilities not being subject
to a SAA. The group believes that the potential threat to
streams or fisheries from routine maintenance and repair of
facilities is very low, especially when best management
practices could be developed and used.
The California Cattlemen's Association agrees with the author
regarding the original purpose of the Section 1600 permits, and
is concerned about the burden on farmers and ranchers. It also
says that DFW is now expanding the scope of the permits into
certain floodplains. It is concerned that the new regulations of
the state water board to require all diversions greater than 10
acre-feet to monitor and report water use within statutory
parameters could also trigger the need for Section 1600 permits
unless this bill is passed.
The California Farm Bureau states that farmers and ranchers
should not be required to obtain 1600 agreements "simply to open
a headgate and exercise their existing water right to irrigate
their crops or pastures."
ARGUMENTS IN OPPOSITION
None received.
COMMENTS
1. The policy arguments in support advanced by the author
were considered and rejected in a unanimous, published
Court of Appeal decision in 2015. Siskiyou Farm Bureau v.
Department of Fish and Wildlife .
The court disposed of the arguments as follows:
a) The word "divert" clearly and without ambiguity includes
diversions that do not alter the streambed itself. A
diversion can and does mean a diversion of water, whether
or not the streambed or channel is physically altered. It
rejected all of the Farm Bureau arguments that questioned
that conclusion. The court did point out that the
4
SB 1026 (Nielsen) Page 5
of ?
Legislature created the statutory balance that is currently
in effect, and theoretically could alter that balance.
However, the court noted that such a step could risk the
de-watering of streams that provide important fish habitat,
especially in drought years.
b) The court did not accept the Farm Bureau view that DFW
abruptly changed its policy and began enforcing Section
1602 in a way that it had never done before. However, even
if DFW had not enforced 1602 in such a way previously, the
statute does not preclude it from doing so "in the face of
extreme drought and piscatorial peril." DFW has the legal
authority to prevent "substantial dewatering of streams
absent physical alteration to the streambeds."
c) Whether a diversion is substantial depends on a number
of factors "including the amount of water taken relative to
the supply, the use to which the water is applied, the
historical usage by the diverter, and the needs of the
fish, given the palpable fact that-due to yet another in a
series of recurring drought conditions in California-there
simply is not enough water to satisfy all legitimate
needs."
d) The water law considerations that were recited earlier
came from this decision.
e) The court rejected the Farm Bureau position that the use
of this statute casts DFW as another arbiter of water
rights, usurping authority from the State Water Board. That
argument was opposed in court by the State Water Board
itself and the court pointed out that the section does not
blur the lines of authority between the two agencies.
f) In its conclusion, the court cited Dr. Seuss for the
proposition that the existing statute is not ambiguous and
that the Legislature created the statutory balance knowing
exactly what the words mean-"I meant what I said and I said
what I meant," Dr. Seuss wrote in Horton Hatches the Egg .
1. It is worth noting that the one of the important fish
species that is at risk in Siskiyou County when streams are
5
SB 1026 (Nielsen) Page 6
of ?
inadequate to provide habitat is Coho salmon. In 2005, the
coho salmon was listed as threatened under the California
Endangered Species Act.
The National Marine Fisheries Service has divided West Coast
coho into six evolutionary significant units, including the
South Oregon/Northern California Coasts (SONCC), which is
comprised of 41 populations. Once numbering 150,000 to 400,000
naturally spawning fish in the mid-twentieth century,
populations have declined to a mere 10,000. In light of this
trend, the U.S. government in 1997 listed the SONCC coho unit as
endangered under the federal Endangered Species Act. (Note: The
overall Coho population has declined further since this report
was published in 2012.)
It is a threatened species under California law.
Coho runs in particular will likely continue to be extremely low
because of warm oceans which is a lingering effect of the warm
North Pacific "Blob" and this year's El Niņo weather system, and
what appears to be an ongoing, but less severe drought,
notwithstanding the rains of 2016.
The overall picture of coho salmon in California is one of
severely depleted populations. The main factors and threats
affecting population viability of coho salmon, as listed in the
DFW Recovery Strategy, have not changed substantially over
several decades: That document states: "The ongoing population
declines are thought to be largely attributable to human causes,
such as water diversions , stream flow regulation, forestry and
man-made barriers affecting migration. Of particular concern is
the loss and degradation of suitable freshwater and estuarine
habitat conditions for juvenile rearing and adult reproduction
(emphasis added).
That report continues: "However, in recent years, the primary
causes of population decline have been compounded by natural
environmental factors, specifically poor ocean conditions in
2005 and 2006, which led to low adult survival in the marine
environment and poor returns in both 2006-07 and 2007-08. In
addition, recent ongoing drought conditions have further
hampered population recovery through the adverse effects of low
6
SB 1026 (Nielsen) Page 7
of ?
flow conditions on adult spawning and juvenile survival in
coastal watersheds."
Many observers believe that northern California Coho salmon are
at great risk of extinction within several decades if the
current rate of decline continues.
Since 1986, DFW, through its Fisheries Restoration Grant
Program, has spent $250 million on 433 projects in northern
California to benefit Coho salmon. Of that, more than $100
million has been spent since 2004.
2. Staff suggested to the author's staff and the
representative of the California Central Valley Flood
Control Association that a conversation with DFW about
routine maintenance of facilities and the best management
practices that might be developed may be useful. Existing
law has a current exemption for routine maintenance and
operation of water supply, drainage, flood control, or
waste treatment and disposal facilities following
notification to the department unless the work or
conditions affecting fish and wildlife resources have
substantially changes and those resources are adversely
affected by the activity under the agreement. Such a
conversation to see if things can be worked out should
occur prior to legislation on an additional exemption for
the routine maintenance and repair of facilities of
instream agricultural irrigation diversions as proposed in
this bill.
SUPPORT
California Central Valley Flood Control Association
California Cattlemen's Association
California Farm Bureau
OPPOSITION
None Received
-- END --
7
SB 1026 (Nielsen) Page 8
of ?
8