All Water Rights

Installing Reservoir Staff Gages

How is a staff gage installed in a reservoir? The typical way is to drive a piece of 2″ galvanized pipe into the ground, deep enough to so it isn’t easy to push over. If cattle will be in the reservoir to get water, then the pipe needs to be really well installed. A gas-powered post pounder can be rented at Rental Guys, Home Depot, or similar places.

Most reservoirs are deeper than six feet, so it’s best to maximize the length of pipe installed. The length of pipe that can be installed by hand is usually about 6 feet. For a 6-foot tall pipe, about 3 feet of pipe needs to be in the ground, so the total pipe length is 9 feet.

Then the staff gage is attached to a 2″ x 8″, using screws or small bolts. Staff gages vary in width from 1″ to 4″; the usual USGS Style C staff gages are 2-1/2″ wide. Once the staff gage is screwed on, the board is U-bolted to the pipe.

That’s it…except for the surveying part. The top of staff gage needs to be at the same level as the spillway crest, so the maximum water surface elevation can be measured. How is the surveying done? An autolevel is close enough for most reservoirs, or two installers can use a very accurate survey level.

If the reservoir is deeper than your staff gage length (6 feet as shown here), and most are, then staged staff gages will be needed. For example, a first gage is installed at the top, going from, say, 6 feet to 12 feet. The second, lower staff gage is installed from 0 feet to 6 feet, and 6 feet is exactly the same elevation on both staff gages. In the photo below, there are 3 staged staff gages to measure 18 feet in elevation: 0 to 6 feet, 6 feet to 12 feet, and 12 feet to 18 feet. The top of the third, lowest staff gage can be seen in the bottom right corner.

More commonly, staff gages like the USGS Style C are purchased in 3.33 foot lengths. This is convenient because staff gages are installed closer together.

What if a pond is full, or mostly full? It is still possible to install a staff gage, but it will be harder. Boats or rafts will be needed, and the pipe with the board already attached has to be put in place and held vertical while being driven. If the total depth is greater than 6 feet, then a longer pipe, board, and staff gage will be needed, and the combined weight will be that much greater. Hint: tie a rope and buoy to the pipe so ~~when~~ if it slips and sinks, it can be pulled up again.

What about installing a staff gage along the slope of a dam, to avoid having to wrestle a pipe and board for a deep installation? This can be done by attaching a length of rebar or pipe to the dam face using concrete stakes or similar method. The slope distances measured are converted to vertical depths. However, this won’t stand up well to cattle or elk traffic, and it is more liable to be vandalized if the reservoir has easy access.

Read Me My Rights

How do you know if you have a water right? Right up front, you know I am not a water rights attorney, and you may end up needing to consult one. There are some good ones. Make sure you go to an attorney who is…a water rights attorney, not an insurance attorney, or a workers comp attorney….

If you live in a town, city, county water district, or a number of other areas that provide water hookups or delivery by ditch, then you are relying on the provider’s water right. That may be any of the kinds of rights mentioned previously: riparian, rancho, pueblo, appropriative pre-1914, appropriative post-1914, groundwater, adjudicated, prescriptive (proven and adjudicated), or contract.

What if you own a place outside of town, and you have always relied on a well?
Might you have a surface water right? If you are on or near a stream, the answer is a definite “maybe”. Hopefully when you bought the place, the previous owner told you if the place has a decreed (adjudicated) right, or appropriative right, or some other water right.

If you never knew and wanted to find out, then the first thing to do is ask your neighbors. IMPORTANT: maintain good relationships with the people who live around you if at all possible. You never know when you need someone’s help, or want to borrow a tractor, or need to peaceably resolve a thorny issue…or get their likely-very-good idea of whether you have a water right, and how much it might be. A neighbor’s opinion is not proof, but someone who has lived in the area for 40, 50, 60 years probably has a good idea.

If your neighbors don’t know (or the relationship isn’t real friendly), the one-stop-shop for most water rights is the State Water Resources Control Board in Sacramento, or 59-98 the “Board”. Get your County Assessor Parcel Number (APN), which is in your purchase documents, or probably can be found online by now in every California county. Call the Board at (916) 341-5300, tell the person what you need, and when you are forwarded to the person in the know, give him or her your APN. Write down everything you are told.

Hopefully you get to talk to a knowledgeable person who can tell you “yes” and what type of right. The Board tracks appropriative water rights: all post-1914 rights, and some pre-1914 rights. The Board posts most of the important court adjudications on their web site, so the person can probably tell you if you are in an area with decreed rights.

If the answer you get from the Board doesn’t seem right, you might call again and get a second opinion. If it still sounds funny, and you have asked your (friendly) neighbor, and checked your property deed for indications, then your best option is probably to consult a water rights attorney.

If you live on a stream or lake, or have a spring on your property, you most likely have a riparian right. Caution here – it’s not guaranteed. Your property has to touch, cross, or include the water body. Then, you have to check your deed on the very small chance the right was transferred to some other parcel. You may live one parcel away from a stream, and there is a very small chance your property has rights reserved, as evidenced by your deed, from when the original owner split off your property. Not likely.

If you live on an adjudicated stream, or at least your property is one of those in a decree on part of a stream, then the court has told you in writing how much water you can take, in what season. Typically these decrees cover the irrigation season, and some also define winter rights. If this is your case, your right is limited to what the court said.

If you ask the Board about your riparian right, the answer you get can vary from, “I don’t think you have any rights” to “You very likely have a right to what you can reasonably and beneficially use.” The person on the phone cannot be certain your property actually touches a water body.

In summary, it’s easy, right? Well, no it’s not. With this information, you have a process you can use to figure it out. Happy hunting!

Reasonable And Beneficial Use Depends On Who You Are

As far as water rights go, what is “reasonable and beneficial use”? The California Constitution, Article 10, Section 2, says, in part: “…The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water….”

That’s pretty clear, isn’t it? Use of water has to make sense and we can’t waste it. The question you are probably asking right now is, who defines the good and bad use of water?

In 1849, The Gold Rush! Starting in the year 1849, prior to California becoming a State in 1850, it was reasonable and beneficial to move a lot of gravel, sometimes whole streams, and sometimes considerable portions of mountains to get gold.

Along with ounces, pounds, and tons of gold found, came a whole lot people than there were before. As the proportion of gold miners to State population decreased, the weight of public opinion changed. Wasn’t it a shame to fill up good rivers with so much gravel that a steamboat could not get through? And weren’t the gnawed-out mountains ugly? Use of monitors was the first, biggest use of water declared to be unreasonable.

Over time, the mines played out and water went more and more to ranches and farms. This is definitely reasonable and beneficial. California became the bread basket and salad bowl of the nation. With more people, land was developed faster, and more water was used.

And you know what happened next. Fish populations in streams decreased, and more focus was put on non-farm uses of water. As dams went in, the miles of natural streams decreased. The fight over water went from who gets the first the mostest, to also arguing how much should be left in creeks and rivers.

In these photos, one shows the whole flow of a creek being diverted to irrigated pastures. In 1940, that was the best use of that water in this part of the State, except if it cut into someone else’s diversion right. Today, a lot of people think the natural stream is best, with no use by people.

So “reasonable and beneficial” depends on when and where you were, and how scarce the water is. Scarcity includes what’s left over after everyone else has rights.

“Good” use of water changes as society changes. In 1900, 90% of people in the USA lived on farms, and 10% in cities. In 2000, 10% lived on farms, and 90% in cities. California was more like 7% vs.93% – it is no surprise that this wholesale change in who we are also changed what is “reasonable and beneficial.” More on this later….

Riparian Rules by Chuck Rich

Riparian Rules by Chuck Rich, State Water Resources Control Board, 2007

GENERAL RULES GOVERNING THE EXISTENCE OF AND
USE OF WATER PURSUANT TO RIPARIAN CLAIMS OF RIGHT

A riparian right exists by reason of ownership of land abutting upon a stream or body of water and affords no basis of right to use water upon nonriparian land.
A parcel of land generally loses its riparian right when severed from the stream channel via a parcel split (i.e., “physical severance”) unless the right is specifically reserved for the severed parcel in the deed of transfer or other conveyance document. However, the California Supreme Court has held that where a physical severance has previously taken place, if the severed tract was receiving water from the creek at the same time the conveyance created the severance, that fact can be used in court to argue that the grantor and grantee did not intend any severance of riparian rights notwithstanding the physical severance, and the riparian right might be preserved as a result – if the court so decides. The riparian right also may be lost when transferred apart from the land by grant, contract, or condemnation. Once lost or severed, the riparian right can NEVER be restored.
Riparian water right holders may only divert a share of the “natural streamflow” of water in the stream. “Natural streamflow” is the flow that occurs in a watercourse due to accretions from rainfall, snowmelt, springs and rising groundwater. To the extent that flow in its natural state reaches or flows through their property, riparian right holders have a proportional right, based on need, to the use of the natural flow.
A riparian right does not allow diversion of water that is foreign to the stream source. Water that is: a) imported from another watershed; b) stored and subsequently released later in time into the stream system from upstream dams; or c) irrigation runoff generated from the application of percolating groundwater applied to upstream lands; is not available for diversion under a riparian claim of right.
Water diverted under claim of riparian right may only be used on the parcel of land that abuts the stream – – unless the severed parcel’s riparian status has been somehow retained (see #2 above), and then only on that portion of the parcel that drains back into that portion of the stream from which the water was originally diverted.
In order to divert water under claim of riparian right, the diverter must use the water on riparian land but need not own the land at the point of diversion. That is, the diversion may be made at a point upstream (or downstream) from the land being served so long as permission is granted to use that point of diversion and intervening land owners between the point of diversion and place of use are not adversely affected by such practice. However, water cannot be diverted upstream or downstream under a riparian claim of right if this water would not have reached the diverter’s land in the “natural” state of affairs. (In other words, the land is only riparian to the stream when the stream, in the natural state, would actually reach or touch the parcel in question.)
Riparian rights are not lost by nonuse of the water.
“Seasonal storage” of water cannot be accomplished under a riparian claim of right. “Seasonal storage” is generally defined as the collection of water during a period of excess flow for use during a period of deficient flow. However, water may be retained for strictly “regulatory” purposes. “Regulatory storage” of water means the direct diversion of water to a tank or reservoir in order that the water may be put to use shortly thereafter at a rate larger than the rate at which it could have been diverted continuously from its source. Regulatory ponds should generally be drained at the end of the season of use (e.g., irrigation season).
If there is insufficient water for the reasonable, beneficial use requirements of all riparian owners, they must share the available supply. Apportionment is governed by various factors, including each owner’s reasonable requirements and uses. In the absence of mutual agreement, recourse to a determination in the Superior Court may be necessary.
The riparian diverter is subject to the doctrine of reasonable use, which limits the use of water to that quantity reasonably required for beneficial purposes. The method of diversion and conveyance must also be reasonable and non-wasteful.
A diverter who possesses a valid riparian claim of right does NOT need to obtain a permit from the State Water Resources Control Board for the act of diverting water. However, any alteration made to a natural channel in order to divert the water will probably require acquisition of a “streambed alteration agreement” from the Department of Fish and Game and may require a Section 404 Permit from the Army Corps of Engineers or a waste discharge requirement from the appropriate Regional Water Quality Control Board. Compliance is also required with any other local, state, or federal requirements regarding construction and operation of the diversion facilities.
Water Code section 5100, et seq. requires that a “Statement of Water Diversion and Use” be filed with the Division for any diversion under riparian right if no other entity reports this use. As of 2007, there is no charge to file this document and forms are available upon request from the Division of Water Rights.

The Smartest Water Expert In California

I think that the smartest water expert in California is Chuck Rich. He used to head up the Complaints Unit at the State Water Resources Control Board. Before I get jumped on because one of 200 other people is someone else’s top water expert, let me explain why.

Chuck is not an attorney but he worked with many hundreds of them, and thousands of diverters and water agencies over his career. He had to – complaints came from every part of the State from small diverters up to the largest water agencies. Chuck is eloquent and effective in explaining the application of water law and likely outcomes of arguments over water rights. He can explain water rights to anyone, at their level of understanding. That ability to apply and clearly explain water rights is what moves Chuck to the “smartest” category in my estimation.

For an example, see “Riparian Rules” in the next post. This is the shortest, most complete, and effective explanation I have ever seen. Sure there is more to riparian rights, but this is the meat of it. (Any mistakes in the text or how it is displayed are mine, not Chuck’s.)

Whenever I am asked, “Yeah but, where is it written how much my riparian right is??”, I refer them to our state Constitution, Article 10, Section 2. Note the phrases “riparian rights” and “reasonable and beneficial use”:

CALIFORNIA CONSTITUTION
ARTICLE 10 WATER

SEC. 2. It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water. Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which the owner’s land is riparian under reasonable methods of diversion and use, or as depriving any appropriator of water to which the appropriator is lawfully entitled. This section shall be self-executing, and the Legislature may also enact laws in the furtherance of the policy in this section contained.

Water Rights – Why Do They Exist? Which Kinds Are There?

Why is there such a thing as water rights? Water is something everyone needs. Except maybe W.C. Fields; he tried to stick to alcohol and when offered water said, “Can’t stand the stuff.” Anyway, water is a shared resource, and in some places there isn’t enough for what people need (or at least want).

California is mostly desert where people live and where food is grown. Water is scarce when it comes to all desired uses. Even in a wet year, surface water flows decrease through the summer and fall.

If you did not have enough water, how would you get it? Use more from the city, buy it from the water district, drill a well, truck it in, or dig a ditch from a creek or river. No matter how you get it, in California it got to you under some kind of right.

What kind of surface water rights are there? The simple list is, and I am sure this leaves out a few:

Riparian – a parcel that touches a stream, spring or lake may use a ” reasonable and beneficial” amount, quantity and rate undefined, per the California Constitution, Article X, Section 2
Rancho rights granted by the government of Spain or Mexico, prior to Statehood in 1850
Pueblo rights, the one belonging to Los Angeles being famous
Appropriative in 1913 and prior, aka “pre-1914”, for parcels not touching a body of water, which started with gold mining and is now mostly for agriculture, environmental, and urban/industrial uses
Appropriative post-1914, issued by the State Water Resources Control Board
Adjudicated, or decreed, from Federal District or State Superior Court
Groundwater from a well, similar to surface water riparian but for the overlying land
Prescriptive, which isn’t a definite right until decreed by a court
Contracts, which are not rights but rely on some already-existing right

That’s useful to know even in summary form. Of course there are books, court cases, both in the thousands, and the California Water Code, and interstate compacts that more particularly define what these are.

Which are better or “senior” rights? That’s for later posts.

Water Rights And Engineers

What is “water rights engineering”? It is not litigating as an attorney, since I am not a lawyer. It could include design and construction of dams, diversion works, pipelines, pumps, and other water-related work.

Concerning water rights, land ownership may change after a water right is defined. Parcels are split so children can each have a part of the original ranch, or because the owner needs income, and a panoply of other reasons. What happens to the original water right?

Well, it depends. In many court adjudications, or decrees, the irrigation water right gets split up by how much of the original place of use is in each smaller parcel. Decrees may also have rights for other uses like domestic (household) use, stock water, storage in a pond or lake, instream fisheries, frost protection, industry, fire protection, and from years past, filling the water tanks in a train steam engine.

What kinds of water rights are there and where do they come from? More on that later.

California Water Right Holders Now Required To Have Measuring Devices

Water laws are changing at lightning speed because California is in a historic drought. Groundwater law was passed requiring local agencies to be formed to manage groundwater. In 2012, I thought that would take 20 years to happen. The drought accelerated it to 2 years.

Surface water laws were passed in 2009, greatly increasing penalties for not reporting diversions, for misreporting, for overdiverting – in short, for evading, lying, and stealing. Suddenly tens of thousands of diverters who had been ignoring the State Water Resources Control Board started to worry. How do I report, am I in hot water if the Board sends me a letter, how do I figure out what my water right is?

The California Water Code Section 5100-5107 has the new, more restrictive part of the Water Code.

For example CWC 5103 (e) (B) says:

” (i) On and after July 1, 2016, the measurement of a diversion of 10 acre-feet or more per year shall comply with regulations adopted by the board pursuant to Article 3 (commencing with Section 1840) of Chapter 12 of Part 2. “

That doesn’t sound too bad. But what does CWC 1840 say?

” 1840 (a) (1) Except as provided in subdivision (b), a person who, on or after January 1, 2016, diverts 10 acre-feet of water per year or more under a permit or license shall install and maintain a device or employ a method capable of measuring the rate of direct diversion, rate of collection to storage, and rate of withdrawal or release from storage. The measurements shall be made using the best available technologies and best professional practices, as defined in Section 5100, using a device or methods satisfactory to the board, as follows:
(A) A device shall be capable of continuous monitoring of the rate and quantity of water diverted and shall be properly maintained. The permittee or licensee shall provide the board with evidence that the device has been installed with the first report submitted after installation of the device. The permittee or licensee shall provide the board with evidence demonstrating that the device is functioning properly as part of the reports submitted at five-year intervals after the report documenting installation of the device, or upon request of the board.
(B) In developing regulations pursuant to Section 1841, the board shall consider devices and methods that provide accurate measurement of the total amount diverted and the rate of diversion. The board shall consider devices and methods that provide accurate measurements within an acceptable range of error, including the following:
(i) Electricity records dedicated to a pump and recent pump test.
(ii) Staff gage calibrated with an acceptable streamflow rating curve.
(iii) Staff gage calibrated for a flume or weir.
(iv) Staff gage calibrated with an acceptable storage capacity curve.
(v) Pressure transducer and acceptable storage capacity curve.
(2) The permittee or licensee shall maintain a record of all diversion monitoring that includes the date, time, and diversion rate at time intervals of one hour or less, and the total amount of water diverted. These records shall be included with reports submitted under the permit or license, as required under subdivision (c), or upon request of the board.
(b) (1) The board may modify the requirements of subdivision (a) upon finding either of the following:
(A) That strict compliance is infeasible, is unreasonably expensive, would unreasonably affect public trust uses, or would result in the waste or unreasonable use of water.
(B) That the need for monitoring and reporting is adequately addressed by other conditions of the permit or license.
(2) The board may increase the 10-acre-foot reporting threshold of subdivision (a) in a watershed or subwatershed, after considering the diversion reporting threshold in relation to quantity of water within the watershed or subwatershed. The board may increase the 10-acre-foot reporting threshold to 25 acre-feet or above if it finds that the benefits of the additional information within the watershed or subwatershed are substantially outweighed by the cost of installing measuring devices or employing methods for measurement for diversions at the 10-acre-foot threshold.
(c) At least annually, a person who diverts water under a registration, permit, or license shall report to the board the following information:
(1) The quantity of water diverted by month.
(2) The maximum rate of diversion by months in the preceding calendar year.
(3) The information required by subdivision (a), if applicable.
(4) The amount of water used, if any, for cannabis cultivation.
(d) Compliance with the applicable requirements of this section is a condition of every registration, permit, or license.
(Amended by Stats. 2016, Ch. 32, Sec. 98. Effective June 27, 2016.) “

Now THAT has a punch. There are exceptions in following paragraphs, but the Board now wants “continuous monitoring”, meaning one of the older, mechanical Stevens Recorders and the like, or newer, electronic pressure transducers. Now we are talking $500 and up just for recording data, in addition to a measurement weir, flume, or orifice.

And the diverter has to provide “evidence”. How is that done? Is a photo good enough? A video? A drawing? A statement by the local ditch tender, the Resource Conservation District, a technician, or an engineer?

Of course, the Board has higher priorities with larger diversions, and streams with anadromous (chinook and steelhead) fisheries. Still, it is an open question about when the Board will get to your or my diversion.

Complaints from neighbors with a grudge tend to elevate problems that the Board considers. But, water is nothing to argue over, is it? Or have grudges?

All Water Rights, California

Welcome to the All Water Rights Blog!

H-S Flumes For Accurate Measurements Of Small Flows

What if you have a small diversion, but grass or debris would interfere with a standard weir? A weir has to have unobstructed, free-flowing water over

the crest so measured depths accurately relate to a calculated flow. A weir with debris problems has to be cleared whenever flow is measured, which increases the time requirement.

When weirs have low flows, they trap debris more frequently, and they are less accurate when the depth over the crest drops below 0.2 feet (2.4 inches). Then the only way to measure flow is with a narrow suppressed weir, or with a contracted weir, typically half or less the maximum width. A V-notch weir can be used for measurement of low flows.

Changing the weir boards for different flows requires someone with experience,

who will recognize when the depth over the weir is 0.2 feet or less and then use a contracted weir board. However, people are busy when irrigating, and even busier when flows drop. Weirs are often neglected during the time they need more frequent maintenance visits.

A good flume for passing debris and measuring low flows is the HS flume. These are accurate right down to zero flow. For the maximum flow, they require more

**1.0-foot HS flume, for flows of 0.00 to 0.80 cfs**

material than a rectangular Winflume, Montana, or Parshall flume. However, they are more accurate than other flumes at very low flows – testing by the University of Minnesota found an average accuracy to be +/- 3.2% for ideal approach conditions. They will pass debris down to zero flow – the flume shown here has an opening of 0.05 feet, or 5/8 inch at the flat bottom, and the opening increases with height.

Why aren’t HS flumes common in California? I suspect that the early adoption of Parshall flumes here established the standard. I have seen a few hundred flumes, but I had never seen an operating HL (wide, high flow), H, or HS flume, prior to my installations.

Why go to the trouble of using an HS flume, if Parshall flumes are readily

available? A Parshall flume may be +/- 10% accurate down to perhaps 5% of its maximum flow. Below that, the accuracy decreases. An HS flume is +/- 10% accurate down to 1% to 2% of its maximum flow. If the flow regime is predominantly low with occasional high flows, it is important to measure those low flows with the best possible accuracy. Some places where low flow measurement is critical include field runoff where pollution is proportional to flow, small water rights, and dam leakage.

HS flumes are easier to construct than a Parshall, too. The HS flume bottom is flat, and it has 3 vertical planes. The photos of the Parshall flume here show

that it has 3 horizontal planes, and 5 vertical planes. An HS flume takes less time to build, and can be put together fairly quickly in any farm or ranch shop. Parshalls are complex enough that they are purchased, including design and shipping costs.

Reasoning With Regulators, Benefitting From Bureaucrats

I worked 30 years as a bureaucrat, and for the last six years I have owned my own business. That gave me first-hand immersion in working with members of the public, especially water right holders who divert water from various streams in Northern California. When it comes to property rights, owners are intensely interested in getting problems solved, fast and hopefully permanently. As a property owner I will get the help of whoever I can and whoever it takes to solve my problem. On the flip side, when I worked for state government, I sure know what worked to get me to work on someone’s problem!

Whenever you divert water, you deal with people. Your neighbors are very interested in what you divert. They want you to use only your water right and hopefully less…and they want every possible law applied against whoever takes more than their legal share.

Laws are made by people. I’m not talking about God’s Laws which are not in your or my control. The man-made documents and organizations that establish, make, change, and enforce water laws and rules include:

the California Constitution
the Legislature
the Governor
Courts at various levels
everyone’s favorite: federal, state, and local agencies

Agencies, otherwise known as bureaucracies, all have one thing in common. To emphasize a very important point: they are all run and staffed by people. Some folks are easy to deal with, others aren’t. Some are truly caring human beings, and others hide behind the policies of their employer.

What exactly is a bureaucracy? Here is a very good explanation: https://en.wikipedia.org/wiki/Bureaucracy

By the way, corporations are the same as bureaucracies in a lot of ways. Since we are talking about the diversion of surface water, that means bureaucracies. And bureaucrats.

There are some money-saving, hassle-saving methods to dealing with bureaucrats. These are time-tested and have worked for me and many others. When other people acted this way with me, when I was a bureaucrat, to get me to do something even when I was too busy, it worked! Hopefully these practices and techniques will aid you in dealing with an agency or a particularly difficult bureaucrat.

Do some research. “Google It”, as the saying goes, and learn about the agency you are dealing with. (Actually, I am using Bing and DuckDuckGo as much as Google these days, to get accurate instead of popular results.) Search for comments by people who had the same problem as you. How did they handle it, and what was the result? Did someone have a particularly effective way of getting a problem solved? It might be worth an hour of your time to use the Internet to find out everything you can first.
Document your problem in writing before contacting a bureaucracy, with text, photos, maps, drawings, contacts, everything you can get on paper. Scan it if possible so everything you have can be emailed.
Assuming you are calling or talking to the person, write everything down. E-ver-y single thing. Date all the entries. Get each person’s name. You might buy a cheap spiral bound notebook at a WalMart or Dollar store – or buy a few, and the ones you don’t use when dealing with bureaucrats you can use for a diary, or shopping lists, or dealing with corporations. Enter it on the computer in front of you, or use Notes on your phone. Let the person know that you are keeping careful notes. If you intend to record audio of a call, ask first!
Always be polite, and especially so during the first few contacts about a problem. Do not threaten, curse, yell, or any of those things that would be classified as “impolite”. If the person you are talking to gets unpleasant, just keep a record of it for later, and maintain your calm demeanor.
Explain your problem or need in as few, relevant words as possible. Boil your problem into one or two specific things that you need done. That way a helpful person can get you the help you need quickly, without strain on your vocal cords or his or her ear.
Don’t share your life story, complaints about your neighbor’s dog, the hassle you had getting your car repaired, or go into what a rotten, horrible person your neighbor is. That is wasted time. Unless what you say bears directly on the problem, it takes away working time from the person listening on the other end of the phone line, or reading your email, or sitting across the table from you. There may not be enough time left to solve your problem!
Give thanks and credit to the people who help you. Call their boss, or write the boss a note about the great work they did in helping you. Let everyone else you talk to about your problem know about those helpful people.
If a bureaucrat says “It’s not my job”, politely explain the person’s statutory/legal/moral or other obligation to help you, and the terrible consequences to you if the person does not carry out his or her agency’s mission. Give a reasonable estimate of the economic harm or cost involved.
On the other hand, if the answer you get is “I have no idea how”, don’t get frustrated, get more contacts from the person. You’ll be following a trail, sometimes clear, sometimes through thick brush.
If you are talking to the right person and cannot get the help you need, or an exemption from a rule, or whatever help you are looking for, ask to talk to the bureaucrat’s boss. Don’t insult the employee to the boss, just explain to the boss that he or she has the great power needed to help you.
If the boss cannot help, ask to talk to his or her boss. See the pattern here? Be courageous and go up the line as high as you need to go.
Take a few minutes and search online for the names and contact information of the people on the Board, or the Director, or the Chief, of the bureaucracy you are dealing with. It can help to let a bureaucrat know that you know who these people are, and while you really don’t want to have to go that far, you will contact them if necessary.
If you are being harassed or threatened by an agency and you are pretty sure they are going above and beyond their authority or normal practice, there are ways to get them to back off or slow down and listen. Sometimes mentioning that they may be in violation of RICO, the Racketeer Influenced and Corrupt Organizations Act, can give them pause. Ask them for all communications in writing – that can cut up to half of bureaucratic actions off right at the knees. Ask bureaucrats to include references to all laws, rules, regulations, codes, court cases, etc., that they are relying on.
Find the agencies, boards, or people to whom you can file a complaint, if you have exhausted all normal ways of getting the help you need and you haven’t been helped. You may even have to enlist the help of staff at your state legislator’s office, or your congressperson.
Although it is expensive, you may have to hire an attorney.

That’s a long list, but if you are dealing with the State Water Resources Control Board, a lot of those folks are reasonable people. The main problem at the Board is that these folks have five times the work to do than they can get done. You’ll probably have to call several times to get someone’s attention. See Rules 1 and 2 above!

Do Something Wrong, Instead Of Nothing Right

Do something wrong, rather than nothing at all. Have you ever heard that before? I have heard it from Army veterans, a boss, even an elder of a church. George Patton said, “A good plan violently executed now is better than a perfect plan executed next week.” A non-military way to say that is, “A poor plan now is better than no plan at all.”

What it means to you and me is, if action is necessary, do something, maybe ANYthing, rather than freezing in place or ignoring a problem. This is obvious when you see a tornado 5 miles away, for example; either drive away from it if you are in a car, or take shelter if you are on foot. If you have a plumbing leak in the house and no parts to replace broken pipe, then put a bucket under it, or turn off the valve, and call a plumber. All of us have seen a TV show (or maybe had it happen to us) where the bad guy pointed a rifle and said, “Don’t move”. What do we all say to the TV? “Don’t just stand there, run!”. Doing nothing is a much worse choice, if the result for freezing in place is death or injury.

What about water rights – how does doing something wrong help? Everyone knows by now that surface water diverters need measurement devices, so put in a weir box and boards and measure your flow before the threats come from the Water Board, your watermaster, your ditch tender, or your neighbor. Even just stick horizontal boards in a ditch and seal the sides with plastic – something to take positive action to reduce future pain.

Remember to file the information for the measurement device with the Water Board, either via your annual report of diversions, or using the Water Right Form and Survey Submittal Portal.

Take a look at the blog posts below. There is enough information and how-to directions, that you should be able to do it well enough to satisfy the Water Board. Check out these posts:

There is a philosophy based in law and a lot of experience, that says don’t put any controls on yourself until the court or government makes

you. Why remodel your house to accommodate the wiring or plumbing, if you aren’t selling the house and everything works okay right now? Who would put a lot of money into an old truck to make it pass smog, if it just might pass a smog check the next time it has to be done? What farmer would change how he irrigates or ranches if everything still operates and the bank will keep making operating loans?

All of the Water Board deadlines have passed to install measurement devices, or file Alternative Compliance Plans. If you haven’t got your device or plan done yet, get a Request For Additional Time done as soon as possible.

Be proactive. Take some inexpensive, temporary action. Educate yourself for free with some time in the Internet. Even a small, less-than-perfect improvement in your measurement device, flow and water use record keeping, can pay back a lot more when you have to deal with potential Water Board fines, a court case, or even just an angry neighbor in the future.

Converting Logger Pressure to Depth & Storage/Flows

If you have a pipeline as part of your diversion, then an in-line meter with an integrated data collector can be installed. The data files from these units are

McCrometer McPropeller inline meter with data collector

easily readable in Excel, and the files can be sent directly to the Water Board to meet the requirements of SB 88.

What if you don’t have a pipeline? Then your flow needs to be measured in the open ditch with a weir, flume, or orifice. These devices measure the flow but they don’t record the data. To continuously record data, a submersible logging instrument must be used to measure the water pressure at the bottom of the box. These logging instruments are commonly put into stilling wells that are inside or outside the measurement device.

Flume with attached stilling well for water level logger

How are water pressure logger measurements converted to diverted flows or reservoir storage? Why does anyone even have to have an electronic pressure logger? Onset Computer, PMC, In-Situ, , and other manufacturers sell data loggers and water level loggers, not pressure loggers, so why is this post talking about measuring pressures at all?

Bluetooth Hobo Logger, cabled to recorder and barometric compensator unit – least expensive option for a single location

Loggers record pressure, because that is the easiest physical attribute to measure. A data logger in water does not know how deep it is, and it does not

know how much flow is going by, or how much water is being stored in a reservoir. Pressures relate directly to static (standing) water depths, and then equations convert the depths to flows, or to reservoir storage volumes.

How is pressure converted to depth? It’s an easy calculation – water that is one foot deep has a pressure of 0.4335 psi at the bottom. So, if your logger measures 1.60 psi, then the calculation to get depth is 1.60 psi / 0.4335 psi per foot = 3.69 feet of depth.

Note that water level loggers can be of two types. The least expensive are completely submersible, and do not compensate for barometric pressure. For an idea of the readings of barometric pressure in a measurement device, a 2 foot deep logger records a pressure of 0.8670 psi. Atmospheric pressure at sea level is about 14.7 psi, and high in the mountains may be 12.0 psi. Air pressure is much greater than those measured in ditches. Usually two of these loggers are used at once, one in the water, and one out of the water measuring only air pressure. This also eliminates the variability in pressure due to weather changes.

The second type of data logger compensates for barometric pressure at the same time water pressure is being recorded. That way, the water and air pressure data sets do not have to be combined before conversion to depths. These loggers were always more expensive until the Bluetooth Hobo water level logger came along; as of February 2019 I found that it is the least expensive option for a single location.

Now that you can calculate any depth, how do you convert depths to reservoir storage? That requires an Area-Capacity curve, also known as an Elevation-Storage curve. The points can be picked off the curve. For example, in the curve below, a depth of 8.5 feet would correspond to an elevation of 2,802.5 feet, and a reservoir storage volume of 30 acre-feet.

An owner of a reservoir with a capacity over 10 acre-feet must collect monthly storage values. That’s easily done by hand. However, a reservoir with a capacity of 50 AF requires weekly measurement; over 200 AF requires daily measurement; and over 1,000 AF requires hourly measurement. That is really tedious to do by hand.

This is where an Excel spreadsheet can make the task a whole lot easier! The spreadsheets shown below are just for this. The first sheet helps translate a graph into a table of elevations and storage volumes. The second sheet translates collected pressure values into depth and storage values, for as many data points as needed.

For diversion ditches from a stream, how are pressures converted to flows? The logger is in a stilling well, usually a pipe connected to the inside or outside wall of the weir, flume, or orifice. It measures pressure, which is easily converted to depths.

As with reservoirs, Excel spreadsheets make the conversion process a whole lot easier. The sheets below have the rating curve for a suppressed weir, and the second sheet converts pressure to actual water depths over the weir boards. Even for thousands of hourly readings, the hourly flow volumes are quickly calculated and are ready to send to the Water Board:

How to Divide Up a Decreed Water Right

Back in 2005, Arnold and Eileen Williamson bought property near South Cow Creek in Shasta County. They live in San Bernardino and plan to retire early, and build a new house on their land. The parcel is part of an old ranch just off Highway 44.

The Williamsons paid $220,000 for the 3.55 acre lot. That seemed high compared to similar parcels in the area, but they were assured the land has adjudicated water rights from South Cow Creek.

Arnold and Eileen brought their travel trailer to live on the land while they are building a new house. Their savings account is in good shape so they are going to build a nice 2,200 square foot, single story ranch house with a garage and a shop. They talked to a well driller 10 years ago and he assured them it would be easy to put in a well, for a cost of around $18,000.

When Arnold and Eileen went to get a permit to drill a well, they ran into unexpected problems. Parcels on either side have their septic systems close to the common property lines, so their possible well locations are few. Maybe a bigger issue is the passage of the Sustainable Groundwater Management Act in 2014. Will their pumping rate be limited, and will their well-drilling permit application get held up?

Now the Williamsons are checking into their surface water right. Is it enough for some pasture for horses and a few cows, in addition to the house and garden? The Turings who live on the east side say there are no water rights. The Poulans, to the west, say they have lived here for 6 years and they have never had water – they think the water right was bought off the place, or lost because of non-use. Now the Williamsons are upset and headed toward just plain mad. The real estate agent said they had rights, and didn’t the title companies insure it?? After a few frantic calls, they found out that title companies don’t insure water rights. But, their realtor gave them the number of some folks over on the north side of the highway, and they have a “decree map”. Arnold and Eileen head over to the Winters’ place to look over the maps. Brad and Jenny Winters even have a web address where the decree and maps can be downloaded: https://allwaterrights.com/some-decrees-maps/ The Water Board’s web page has the decree, but no maps: http://www.waterboards.ca.gov/waterrights/board_decisions/adopted_orders/judgments/docs/cowcreek_jd.pdf.

It turns out that the Cow Creek adjudication does not have maps, but an engineering report done a few years before the decree was issued does have the maps. Brad and Jenny have that report, too, so they have Sheets 1 through 5 showing the “Diversions And Irrigated Lands” on Cow Creek. Besides that, they have the link to where they can get the South Cow Creek decree, and a link to a blog that has the maps not on the Water Board’s web site: https://allwaterrights.com/some-decrees-maps/ Sheet 5 covers the area including the Winters and Williamson places. Sheet 5 has a lot of “irrigated lands” according to the legend – the green areas.

By looking at the maps, and their Assessor Parcel Map they have in their escrow package, it sure looks like their property is completely within the green area. Great! Now, how do they figure out if they actually have a water right?

Arnold and Eileen wonder, can they figure this out themselves? Brad and Jenny tell them, they sure can, and there is a document online that explains how to do it: https://drive.google.com/file/d/0B8G8oUBnppMTdU1lbUotUDR4MlU/view. They take a look at it and see that, yes, the document fully explains the process, but it requires having either AutoCAD or GIS software. Also, it will take deep familiarity with the decree – and it is starting to look like a 3-day job just to understand it enough for their parcel! Arnold and Eileen don’t have the software or experience, so they decide it’s not worth their time to learn this…and they are not sure if they can do it right.

After asking around, Arnold and Eileen figure out they will need to see an attorney. They call around and find out there are a couple of engineering companies that can see them faster, and they might cost less. They picked Rights To Water Engineering, Inc., to help figure out their water rights. Within a couple of weeks, they have a nice report in their hands and answers to their questions. So what did they find out? The map below is one of several from the report they got from the engineer, showing their property boundary on the 1965 decree map of irrigated lands:

The report cost $2,500. The engineer warns them that if it gets contentious and they can’t work out access to the water with their neighbors, they may end up having to get legal help. He recommends a couple of local water rights attorneys if it comes to that – there are some good lawyers who specialize in in water rights. For now, though, they have documentation they can discuss with their neighbors to work on getting their water right to their property.

Their property is on land that back in 1968 belonged to Howard and Gladys Leggett. It has an adjudicated second priority water right for irrigation equal to 0.063 cubic feet per second, or 28.5 gallons per minute, 24 hours a day, 7 days a week, from March through October. This 2nd priority right is less than the second and third priorities on the upper creek and tributaries, but it is the highest irrigation priority on the lower creek. Back when the property was flooded, that was usually enough to flood irrigate their entire lot to grow pasture or hay. That’s great news!

As natural flows drop during the summer that amount is reduced and everyone with a lower creek second priority has to reduce their diversion by the same percentage. In normal and wet years they could keep their pasture, hay, or whatever else they plant, irrigated for most or all of the irrigation season. And whether or not they use the water, the right does stay with the land and protect their property value; there is no provision for the expiration of water rights in the decree (the same as for nearly all surface water rights decrees).

What else was in their report? There was a cover letter, and next some excerpts from the decree. Schedule 1 lists the places of use for all the original owners. The Leggetts’ description takes up most of page 60; the Williamson’s property is on the 69.8 acres listed in the second paragraph for the Leggett land:

Schedule 2 lists all the points of diversion, whether gravity diversions or pumps. The Leggett property actually could get water from two diversions, a pump from the creek, and a proposed second, movable diversion on the creek. That’s convenient – per the decree they could already divert their water from someone else’s existing diversion, or pump their water from Diversion 95, or they could get it from anywhere they can get agreement from the landowner!

Schedule 6 lists the water rights for Lower Cow Creek – other schedules have rights for the upper creek and tributaries. This is interesting: there are four priorities of rights and this part of the Leggetts’ property has

a 1st and a 2nd priority right. What does that mean exactly? The decree explains that 1st priority rights are domestic – houses and gardens. It’s a very small right and it is not clear whether or how it should be divided up among the all the subdivided parcels that used to be the Leggett ranch. The engineer noted it in the cover letter.

How was the water right calculated for the Williamsons? Using a geographic information system, or GIS, the engineer used his training and years of experience to precisely overlay the Assessor Parcel Map on the decree map. Then he measured the acreage for both, and prorated the water right by area. The following screenshots of the Excel spreadsheet shows these calculations.

Time to fess up: this was a water right subdivision of a fictitious, made-up parcel of land, and the Williamsons don’t actually own it. However, this story is one that happens every day, when a landowner asks “How much is my water right, really? Can I divert for hay, stock, pasture, wildlife habitat, crops not mentioned in the decree, an orchard, ……… ?” Having information before arguing with neighbors, seeing attorneys, sending legal letters, and going to court, can help smart people who generally have good relationships work out happy and agreeable solutions. The Williamsons were smart and talked politely with their neighbors, the Turings and Poulens and Winters’s. Now they have a good basis to live peacefully in their neighborhood for many years, and Arnold can borrow Charlie’s lawnmower until he gets his own.

Waste Water, or Get Cash For Excess?

Market part of your water, as a lease or sale, or divert it all and don’t risk losing your water right? That’s the question for thousands of Sacramento Basin smaller districts and individual diverters of even large water rights. The market for water can bring the water right holder $25 – $1,000 per acre-foot, depending on whether the buyer is a nearby neighbor or a San Joaquin Valley water district in a dry year.

When I was a DWR bureaucrat, my supervisor was experienced and wise. When he would talk to people at public meetings, or to neighbors who knew he was in the water world, sooner or later the subject of “sending all our water to Southern California” came up. His reply was, “You’re right, Feather River water is going to L.A., Sacramento River water is going to the San Joaquin Valley, and the excess of both goes through the Delta out to the Pacific Ocean. And you know what? Gravity does the job, not the government. If you want to keep water in Northern California, there have to be more dams.” Some folks understood and changed their minds, others kept on complaining.

There are more reservoirs in the Sacramento Basin. They aren’t made of concrete, they don’t do flood control, and they’re not run by the state or federal governments. These reservoirs are the water evaporated, infiltrated, leaked, returned unused to the stream, or wasted at the diversions of many individuals, and some water and irrigation districts. Some of the excess water makes it back to streams, and some of it goes to the next diverter down the stream, but much is lost in the short term and unavailable for use by humans or the environment.

Yes, many surface water flood systems were designed this way, so runoff from one irrigator goes into the canal to the next. However, more flooded pastures are being leveled or converted to pivots to grow hay. Many other pastures are becoming orchards, with tight controls on incoming e coli from cattle or unwanted pesticides or herbicides. There is a huge opportunity to increase efficiency (pipe, sprinklers, etc), maintain better water quality.

How can anyone get a yield, or excess water out of those reservoirs? Lining ditches, converting to sprinkler instead of flood irrigation, changing the land use to a crop that has both higher value to the owner, and lower water use.

I’m not saying that’s a bad thing that this excess water exists. In fact, it has the potential to do a lot of good, both for the upstream district, and for fisheries, and for other environmental needs, and for water users downstream or south of the Delta who don’t have enough water.

What is the good for the district or individual who is selling or leasing the water? Well, there is water not being directly used by stock, or being applied to crops, or directly needed for groundwater recharge. If some of that water can be saved, it can remain in the stream and used for all the other needs. Agricultural, urban, and environmental water users will pay for the saved water. That water can also bring in a lot of cash, that can be used for further farm or ranch efficiency, general improvements, or cash to keep in the bank.

Why don’t more irrigators with excess water market it? The number one reason is fear that somehow, California or the Feds will eventually take away the water right. That is a concern, but there are a bunch of people selling water right now who will tell you that their water right is still rock solid. The second reason is that we have always irrigated this way, so why should we change? Both the fear of loss and the unwillingness to change can be overcome with just a little bit of self-education. Plenty of folks have overcome their lack of knowledge to put together some valuable water deals.

Lately, the Sustainable Groundwater Management Act, SGMA, is throwing in a lot of uncertainty. It’s true that radically changing diversion practices might change groundwater recharge, so that pumped water is not fully replenished. So, put together a small deal and see how that goes. Call it a trial for one or a few years. That will provide data on what the groundwater changes were due to the water deal.

What about those folks in the San Joaquin Valley who really need the water, badly? There is an element of taking care of our neighbor, and it ought to be part of the consideration. Who is our neighbor? Anyone that we can or do benefit.

There is a lot of opportunity out there, folks.

Flow/Volume Data and Data-Heads

Summary

You have to measure your surface water diversion, or elevation changes and outflows from your reservoir. Data processing, checking, correction, and summarizing requires a Data-Head who has experience dealing with this kind of data.

This episode is also available as a blog post: http://allwaterrights.com/2021/04/01/flow-volume-data-and-data-heads/

Flow/Volume Data and Data-Heads

SB 88 requires diverters to measure diverted water flow and/or volume, then report the measurements. For small to medium-sized diversions and reservoirs, there is a often transducer measuring and recording pressure. The pressure data has to be converted to depth and flow, or depth and volume. Data may be hourly, daily, weekly, or monthly. Whatever the frequency, the Water Board wants data files uploaded with annual Reports and Supplemental Statements.

Where’s the manual for how to do this, for any of several data loggers, and for meters, weirs, flumes, and orifices, and flumes? It exists in pieces and parts. Each data logger manufacturer has a manual for each product. Sometimes products are similar, and sometimes very different, as are the manuals. The long-existing measuring devices, weirs, flumes, and orifices, are described and general measurement instructions listed in the U.S. Bureau of Reclamation Water Measurement Manual.

When it comes right down to it, a person has to be a “data-head” to enjoy collecting the data, and going through all of it to find bad results, missing data, and odd trends. Then stage and flow have to be calculated and checked against periodic readings taken during visits to the reservoir or stream. Data have to be listed in a format to upload with the Report or Supplemental Statement to the Water Board, and summed monthly to fill out the online form.

If you enjoy educating yourself and taking on new tasks, then you can be a data-head. If not, then you’ll need to have an employee do it, or more likely hire an expert.

Who are the experts? There are engineering firms, manufacturers, vendors and others who can download data for you. It still comes down to the person helping you That person who does the work has to have done data reduction, calculations, checking, and quality control in the past.

Make sure you get help from someone who knows data inside and out! If the Water Board has any questions, your data-head can explain and defend every bit of it for you. He or she will already know the answers to any questions that come up.

	Reasoning With Regul… on Use BING or DUCKDUCKGO To Sear…
	Do Something Wrong,… on Measure Any Flow With Watchman…
	Flow/Volume Data and… on Flow/Volume Data and Data-Head…
	No Record Of Water R… on Do Something Wrong, Instead Of…
	Reports Of Licensee/… on Do Something Wrong, Instead Of…