Permit to Maintain Water Flow for the Protection of Fish In California

In Fullerton v. State Water Resources Control Bd. (1979) 90 Cal. App. 3d 590 [153 Cal. Rptr. 518], the State Department of Fish and Game sought a permit for an "in-stream" appropriation of water in the Mattole River to maintain water flow for the protection of fish. In a ruling upheld on appeal, the application was denied on the basis that its proposed use did not meet the statutory and common law requirements for an appropriation. No contention was made that the Department of Fish and Game, as an arm of the State, could simply arrange for the increased flow in derogation of the rights of recognized riparian and/or appropriators. Indeed, early decisions of the courts of this state interpreting statutory and constitutional provisions relating to water repeatedly held that the State could not lawfully--that is, constitutionally--interfere with established water rights. (See, e.g., Lux v. Haggin, supra, 69 Cal. at p. 368.) In City of San Bernardino v. City of Riverside (1921) 186 Cal. 7, 29-30 [198 P. 784], the court scoffed at the notion that the predecessor to Water Code section 102 should be construed as granting proprietary, possessive ownership of all waters in the state to the State. Although it recognized that literally the statute could be so read, it soundly rejected any such interpretation, commenting that "The water that pertained to or was contained in the lands of the state was already the property of the people when the amendment was adopted. The statute was without effect on any other property." (186 Cal. at p. 30.) By this language, the court recognized that the State's proprietary interest in waters derives not from the general pronouncements of the Water Code, but from the same bases that give rise to water rights in individuals as riparians or appropriators.