- a weekly column published in the Pioneer Press

A 1602 (formerly 1603) permit or "agreement" is required whenever someone "substantially diverts or obstructs the natural flow of, or substantially changes or uses any material from the bed, channel, or bank of, any river, stream, or lake, or deposits or disposes of debris, waste, or other material" therein. Historically, the permit has been enforced whenever someone had to get into the stream with heavy equipment to push up gravel dams or work on river banks or beds. The Department of Fish and Game (DFG) is now requiring a permit for anyone to "substantially divert" water. This clause is being interpreted to include anyone who takes surface water for agricultural irrigation.

Acknowledging that irrigators would assert that they did not need to have a permit when they already had an adjudicated water use right, Bill Krum drew an analogy to buying a car. You own the car, yet you are required to obtain a license and insurance before you can legally drive it.

To obtain a 1602 permit, a fee must be paid with an application or "notification." Then the project must go through the CEQA (California Environmental Quality Act) review process, the cost of which is normally charged to the applicant. This includes public "scoping" of and input on the project during an official review period.

For those who need a 1602, the RCD proposes to group them under one watershed-wide CEQA process not charged to individual applicants. Under an MOU (Memorandum of Understanding) with the DFG, the RCD will develop "master conditions" required for diversion that would apply generally to most situations in the watershed. They will also help the individual water user complete the "notification" (application) forms. Actual permits will be issued on an individual basis. It is hoped that the permitting process will be completed prior to the 2006 irrigation season. Unique circumstances will have to be worked out between the user and the DFG.

So far, 65 irrigators have been sent notices by the DFG. (Additional letters to others will be forthcoming.) They have been invited to sign a Letter of Intent (LOI) to show their interest in participation in the RCD process. This is entirely optional and a decision that must be made by each water user. It is not a final binding contract, but will provide interim coverage until the RCD process is finalized.

Many users have an existing 1603 agreement. The 1602 code has a clause requiring "notification" (new application) whenever "conditions affecting fish and wildlife resources have substantially changed, and those resources are adversely affected by the activity conducted under the agreement." The DFG has taken the position that the coho listing constitutes a "substantial change in conditions" requiring a new permit, also that existing permits will not automatically renew.

Bill Krum explained that the attorneys with whom they have been working disagree with the DFG’s interpretation. Krum explained that if a user signs the LOI to participate in the RCD program, the last sentence of the LOI clearly states that by signing, the person does not agree that any streambed alteration agreement he/she currently has is invalid. Krum cautioned that existing 1603s have maturity dates requiring renewal. Irrigators should not presume that the LOI preserves their rights if the 1603 comes up for renewal during the interim period before final permitting.

Next week’s column will explain the RCD’s programmatic ITP and the types of conditions it may impose on agricultural operations.