The Department of Water Resources is a "person" for the purposes of the Fish and Game Code and thus is prohibited from killing an endangered or threatened species protected by the California Endangered Species Act, the First District Court of Appeal has ruled.

The ruling came in a case involving the operation of the State Water Project's Harvey O. Banks pumping plant, which extracts water from the Bay Delta for eventual delivery to Southern California cities and San Joaquin Valley farms. Operation of the pumping plant traps and kills significant numbers of fish, including winter-run Chinook salmon, spring-run chinook salmon and Delta smelt. The winter-run chinook salmon is listed as endangered under the California Endangered Species Act (CESA), while the spring-run chinook salmon and the Delta smelt are considered threatened.

The organization Watershed Enforcers filed a lawsuit seeking to stop the Department of Water Resources (DWR), which oversees the State Water Project, from operating the pumping plant because the agency was "taking" the fish species without a permit under CESA (Fish & Game Code, § 2050 et seq.). The state and three local water agencies that are State Water Project customers – Kern County Water Agency, San Luis & Delta-Mendota Water Authority and Westlands Water District – argued that CESA did not apply to DWR because the agency was not a "person" within the meaning of CESA. The trial court rejected this argument and ruled that DWR must get a take permit to continue operating the pumping plant.

At first, the state appealed. But the agency later decided to drop its appeal and comply with the ruling. The intervening water agencies, however, pursued the appeal because they fear that applying CESA to state pumping plant operations could reduce water deliveries. They continued to insist that DWR was not person that needed to get a take permit. The appellate court agreed to decide the case despite its mootness, because the issue was one of general public interest that is likely to recur. 

At issue in the appeal was the meaning of Fish and Game Code § 2080, which provides, "No person shall … take … any species … that the [Fish and Game Commission] determines to be an endangered species, or a threatened species." The term "take" means to catch, capture, or kill. The Department of Fish & Game, through a permit or memorandum of understanding, may issue an incidental take permit to individuals, public agencies and various other entities that allows the taking of endangered or threatened species for scientific, educational, or management purposes. 

The intervening water agencies argued that because the term "person" is ambiguous, reference should be given to the definition in Fish and Game Code § 67. It defines "person" as "any natural person or any partnership, corporation, limited liability company, trust, or other type of association." The code does not specifically name state agencies. The court, however, considered that other statutory language within CESA emphasizes the act's application to state agencies. Further, Fish and Game Code § 2081 exempts several entities – including public agencies – from the § 2080 prohibition in certain circumstances. The court reasoned that if § 2081 could exempt public agencies from § 2080 take prohibition in some instances, then § 2080 necessarily applies to public agencies. 

In addition, the court gave deference to the Department of Fish & Game's regulations, which contemplate the application of the incidental take process to state agencies.

"[I]nterpreting § 2080 to exclude state agencies would lead to the unreasonable result that major actors, whose operations result in the taking of endangered and threatened species, would be exempt from the general take prohibition," the court concluded.

The Case:

Kern County Water Agency v. Watershed Enforcers, No. A117715, 2010 DJDAR 9168. Filed June 17, 2010.

The Lawyers:

For Kern County Water Agency: Daniel J. O'Hanlon, Kronick, Moskovitz, Tiedemann & Girard, (916) 321-4500.

For San Luis & Delta-Mendota Water Authority: Andrea A. Matarazzo, Diepenbrock Harrison, (916) 492-5000.

For Watershed Enforcers: Michael R. Lozeau, Lozeau Drury, (510) 749-9102.