Monday, March 03, 2014

Expanding Enforcement of State Water Diversion Laws

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Citizen activist Tom Grover, Fish and Wildlife Warden Shane Embry, Bonnie Blackberry in studio, KMUD engineer Larry Lashley behind window Citizen activist Tom Grover, Fish and Wildlife Warden Shane Embry, Bonnie Blackberry in studio, KMUD engineer Larry Lashley behind window

Civil Liberties Monitoring Project


On JUNE 5, 2013, the CIVIL LIBERTIES HOUR on KMUD Redwood Community Radio looked at current California water regulation and enforcement. Bonnie Blackberry hosted the show and welcomed guests: Fish and Wildlife (F&W) Warden Shane Embry and citizen activist Tom Grover in the studio, and F&W Biologist and Environmental Scientist Jane Arnold by telephone.

Blackberry introduced the subject of water regulations by reading the following pertinent details from a copy of a certified letter a local landowner had recently received from the CA Water Board: "The State Water Resources Control Board Division of Water Rights was notified by the Department of Fish and Wildlife of potential CA Water Code violations for failure to file a Statement of Water Diversion and Use, and a potential unauthorized diversion of water on your property located at . . . And the Division was also notified by the Department of Fish & Wildlife of an alleged fish-kill that occurred in October of 2012 as a result of low-flow conditions in China Creek. . .

“In general if you take water from a lake, river, stream, creek or from underground supplies for a beneficial use, the Calif. Water Code(division 2) requires that you have a water right.”

The letter required the landowner's immediate attention (30 days to respond). “If the surface water diversions on your property are subject to our permitting authority, then they are unauthorized diversion of water to which you could be subject to liability. An unauthorized diversion of water constitutes a trespass against the State and the State Water Board may impose a civil liability in an amount not to exceed $500 for each day the unauthorized diversion or use of water occurs.”

“. . .California Water Code section 5101 requires with minor exceptions that a person who diverts water from a stream in the absence of a permit, license, or registration must file a Statement with the Water Board."

“If you have diverted water since 2009, then you are required to report your diversion and use to the State Water Board by filing a Statement unless that diversion falls within one of the limited exceptions provided by the California Water Code section 5201.”

Tom Grover, who has been reading up on the law, pointed out that, contrary to what many people might think, springs are part of the stream system and [may be] subject to the Water Board's authority. He also said he was completely behind this effort to regulate, "This is a real serious problem with the fish." He suggested people go to the State Water Resources Control Board's website (http://www.waterboards.ca.gov/waterrights/.) and look up the CA Water Law, and added, "If your spring is not connected to the stream by a known channel, above or below the ground, then it is exempt."

Jane Arnold, F&W Biologist, clarified that most of the people who received this letter in the China Creek area are probably riparian users, and that filing a Statement of Diversion or Use is free. She said it's a new requirement that the State Board has had for the last 3 or 4 years. It's on-line filing only. Riparian users are people who, by virtue of having a spring or stream running through their property, have a property-right to use that water, and the only requirement is to file the Statement. Alternatively, if someone is using that water, but is not a riparian user, then they would have to do the Appropriative Water Rights request. She said that the State Board has been doing enforcement throughout the state, in particular, the Delta and the vineyards, and a lot of people have come into compliance with the water laws. Now, they're starting to move to areas in Humboldt County and elsewhere.

Warden Embry said there were different types of permits, and the one he was most familiar with as F&W is the Lake or Stream in Alteration Agreement, not really an alteration but simply a water diversion whether it is stored in a tank or simply in the pipe.

Arnold interjected, "The State Water Board's mandate is to ensure that all citizens are sharing water equally and well for their beneficiary use, and that there is water left over for public resources. F&W is very focused on what are the fish and wildlife needs," she emphasized, "That's their nexus for coming in." And Embry suggested that she outline the three steps as she had earlier in the day with a group of landowners.

1) "Most of these rural residents will be riparian users. You can file your Statement of Use and Diversion. You want to make sure you have a valid claim to your water. It's free to file: it's a $500 per day fine if you don't file, so you might as well get ahead of the State enforcement sweep. And, you know, it's a property right. It validates your property right that you're using the water. Water's like gold now, it's probably going to be like titanium soon in California, as far as its value.

2) "And if you store water, riparian or non-riparian, you can do it under a registration program for domestic use: household, a half acre or so of irrigating land. And that's a $250 registration. It's a 5-year permit, easily renewed after 5 years. And again it's a water right to add to your property right. The State Board doesn't usually come out for those. I come out for those. I do the Environmental Review for the State Board. Then you're good to go, you're all legal."
CLMP asked if it made any difference as far as getting the permit if you didn't have a permitted house. Arnold answered, "Not to the State. That's a County Ordinance. It would be up to the landowner to comply with all laws," but that's not the focus of F&W or the State Water Control Board.

3) "For the small domestic registration, first you file the diversion, then you fill out the form for the registration . . . [which includes] the point of diversion (where you take your water from the stream or spring), how much water you use, and how much you store, and describe what your place of use is, household, etc." And this is the same information you give when you file for your diversion.

Warden Embry said that the last couple of summers of driving rural roads and informing landowners about water regulations had brought zero compliance. "A heavier serving of enforcement is probably due, because the educational outreach wasn't working. And so the only next step for me is to bring the court system into the picture. What we've been doing is, either through citizen tips, or through just general patrol, we've been discovering and locating water diversions and trying to contact landowners to try to get them into compliance." People are being discouraged from drawing water in the low water periods in the late summer, and are being encouraged to get water storage during wet periods. There is misinformation in the community about what is being asked of people. It's not that people can't use the water; it just needs to be regulated.

Jane Arnold explained, "What we look at is the context of the watershed: how many users, what the low flow is, what are the resources, what would naturally be there, and what do the resources need to survive. In China Creek we're talking about the trifecta of fish, you know: Chinook, steelhead, and Coho. Coho are on the ropes. In one way, South Fork Eel needs to be proud of the fact that they have the longest run of Coho salmon that are non-hatchery influenced. On the other hand, Shane was out there documenting Coho dying last year, and so, at this point, we can't allow much more Coho death before they're extinct. . .I'm sure the community would like to see the fish come back and would not like to be part of fish kills."

Tom Grover: "Part of the new rulings in the last couple of years requires people to put in water-monitoring devices to measure it," and there's one without lead available ($179 at Dazey's), but needs 8 lbs. of water pressure, and no dirt. Jane: the Board might accept a simple bucket and stopwatch method of measurement if asked. Shane: $15-20, low-flow counters are available. Tom: with Eel River Recovery Project, we're hoping to get info collected and on flyers.

CLMP asked: Limit on spring water storage in winter? Jane: Small Domestic Use limit is 10 acre feet of water. Tom: That's 2,800,000 gallons. Jane: 3.25 million gal. is 300 ft. Limit for livestock ponds is 10 acre ft. Small Irrigation Registration for vineyards (in Napa, and in the Mattole) allows 20 acre ft.

Asked about storing rainwater, Jane said: "Rainwater we like to call God-water in California. It's not regulated. (Colorado and Arizona do regulate rainwater.)" You don't need a storage permit for rainwater. Rainwater that runs off your roof can be stored without a water permit, and sheet flow into a pond, as well.

Download the whole radio program from the KMUD archive (right-click and "Save link as" or "Download linked file as", depending on which browser you use).

CLMP at 923-4646, This email address is being protected from spambots. You need JavaScript enabled to view it..">clmp at civilliberties.org.

To contact F&G Warden Shane Embry's office in Myers Flat: 943-1745; F&G Staff Scientist Jane Arnold's office: 441-5671; Water Rights, Sacramento office: 916-341-5300.
Info on water rights can be found on State Water Board's website: http://www.waterboards.ca.gov/waterrights/.

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