It’s the Law

Farm drainage ditch a potential fish and game violation?
By Paul Rovella
Lombardo
&
amp; Gilles
When you consider the overwhelming number of local, state, and federal statutory and regulatory requirements that affect farming on California’s Central Coast, it is difficult to keep track, much less remain in compliance with all laws governing everyday farming practices.
Farm drainage ditch a potential fish and game violation?

By Paul Rovella

Lombardo & Gilles

When you consider the overwhelming number of local, state, and federal statutory and regulatory requirements that affect farming on California’s Central Coast, it is difficult to keep track, much less remain in compliance with all laws governing everyday farming practices.  

And when you add to it, the rate at which farm-related laws and regulations change, it is not surprising for certain farming activities to be legal one day and a violation of state law the next.  

The most volatile areas of local, state and federal laws relating to farming include food safety and water quality. 

Recently, there has been an increase in reported Fish & Game Code violations arising from standard farm irrigation ditch maintenance practices.

If the runoff, which is captured by the ditch ultimately ends up in a “water of the state” (defined as any surface water or ground water in the state of California), any practice which would result in the deposit of substances or materials  “deleterious” to fish, game or bird life may be a violation of Fish & Game Code Section 5650.

A material or substance is “deleterious” if it is of a nature or quantity that is harmful to fish, plant or bird life. 

Strictly speaking, the practice of re-establishment, realignment, or clearing of an on-farm drainage ditch could be a violation of the California Fish & Game Code if it results in the deposit of material that is harmful to plant, fish or bird life within a water of the state (such as the Pajaro River or Elkhorn Slough).

Additionally, any farm-related grading near an on-farm drainage ditch, which may arguably result in the deposit of deleterious material in the on-farm ditch which may ultimately end up in a water of the state could also be a violation of the California Fish & Game Code.  

The civil penalty for violating Section 5650 of the California Fish and Game Code  could be as much as $25,000 per violation. 

If your on-farm drainage ditch is not biologically connected to a water of the state, or if it has been engineered so that all sediment and runoff is contained on-site, then you will not likely have any issues with regard to violating the California Fish & Game Code.   

If you are contemplating undertaking any agricultural activities which you think may result in the deposit of substances harmful to fish, plant or bird life in any of the local water bodies, you may wish to contact the California Department of Fish and Game, the local Environmental Health Department. 

If you have received notice of a violation or believe that you may have violated the California Fish and Game Code, you should contact a biologist and/or an attorney experienced in Fish and Game code matters for advice and counsel.

This column is the work product of Lombardo & Gilles, LLP, which has offices in Hollister and Salinas.  Paul A. Rovella is an attorney with Lombardo & Gilles, LLP.  You may contact the author at (831) 630-1722 or [email protected].  Mail your questions to Paul A. Rovella, It’s the Law, c/o The Pinnacle, 350 San Benito St., Ste. 102 Hollister, CA 95023.