This case by, brought by the Siskiyou County Farm Bureau against the Dept. of Fish and Game, is the most outrageous thing I’ve read in quite a while.
If you remember, farmers in the Scott and Shasta Valleys are a bunch of old school growers who all but dewater the rivers in the summer as they send water to their pastures (sometimes they do dewater whole stretches, below their “push-up dams”). Sadly for them, the Scott and Shasta Rivers have one of the best remaining salmon runs in the state, so the Dept of Fish and Game has jurisdiction over them under the Endangered Species Act. Fish and Game tried to implement a valleywide Take Permit (in which some individual Take was permitted, so long as the whole river was managed to a standard), which I always thought was too permissive anyway, but the growers refused it. Now the Dept of Fish and Game doesn’t know what to. Enforcing against every single diverter is a nightmare, but growers up there keep sucking the river dry, stranding and killing salmon.
The Siskiyou Farm Bureau is now suing DFG, under an astonishing new interpretation:
The Siskiyou County Farm Bureau filed its lawsuit on March 25, alleging that water diverters are not legally obligated to inform Fish and Game of their water diversions and that the agency has no authority to regulate these diversions.
According to the groups, the Farm Bureau’s key argument is that the word ‘divert’ in Fish and Game code refers not to water diverted for irrigation, but to the physical diversion of the natural flow to a new water course. The Farm Bureau insists that landowners taking water from the rivers to water their hay fields are not ‘diverting’ but ‘extracting’ water and are therefore exempt from the law.
This cracks me up. It is completely at odds with common parlance in water. We talk about irrigation diversions, power diversions, diversion points this and diversion head that. Diversions has always meant “where you take the water out.” The best part is that like the Siskiyou growers point out, “diversion” was always a euphemism. That water wasn’t “diverted” for a short while before it returns (warmed and salty). It is extracted to be spread over the land as the downstream river gets smaller. Extractions would always have been a purer, blunter word for it.
I can’t imagine a judge will fall for this. Why yes! All of DFG’s authority rests on the common word that everyone uses to describe taking water out of the river! If you use a synonym, salmon are no longer dying in dried up gravels! DFG has to butt out! But the case will be fun to watch. I hope it is expensive to bring.