Not Small: Water Board Fines

When California diverters think of water laws, the ESA comes to mind first .  Water Board fines, while rare, will be used more in the next few years.

StateWaterBoardHomePage

The federal Endangered Species Act (ESA) and the California Endangered Species Act (CESA) are the first environmental laws that come to mind for diverters in California.  Streams with Chinook salmon or Steelhead trout are of the greatest concern, since they may be in any creek or river that eventually drains into the Pacific Ocean.  Most diverters have heard that a “take” of a federal endangered species can result in a $50,000 fine and up to a year imprisonment – and that’s possible for the death of just one fish.

However, there are penalties more directly related to the diversion of water, not just environmental laws.  The California Water Code specifies fines or jail that the State Water Board can impose, for falsely reporting a diversion, failing to file a statement, or tampering with a measurement device.  These fines have rarely been imposed in past years.  Usually diverters will take the opportunity to correct problems after the first warning.

With the Board’s increased focus on measurement devices being installed and certified, and and diversion amounts being reported much more often, the likelihood of fines being assessed goes up.

  • Willful misstatement (lying):  $1,000 plus up to 6 months in jail
  • Failing to file a statement:  $1,000 plus $500 per day
  • Accidental device malfunction or misstatement:  $250 plus $250 per day
  • Knowingly tampering or making misstatement:  $25,000 plus $1,000 per day
  • Any other violation:  $500 plus $250 per day

These can add up if the Board’s initial letters are ignored.  What’s the best strategy?  Work with the Board, seek government funding to help defray installation costs if funds are available, and make sure the end result satisfies the Board’s requirements.

California Water Code Section 5107

5107.  (a) The making of any willful misstatement pursuant to this
part is a misdemeanor punishable by a fine not exceeding one thousand
dollars ($1,000) or by imprisonment in the county jail for not to
exceed six months, or both.
   (b) Any person who fails to file a statement required to be filed
under this part for a diversion or use that occurs after January 1,
2009, who tampers with any measuring device, or who makes a material
misstatement pursuant to this part may be liable civilly as provided
in subdivisions (c) and (d).
   (c) Civil liability may be administratively imposed by the board
pursuant to Section 1055 in an amount not to exceed the following
amounts:
   (1) For failure to file a statement, one thousand dollars
($1,000), plus five hundred dollars ($500) per day for each
additional day on which the violation continues if the person fails
to file a statement within 30 days after the board has called the
violation to the attention of that person.
   (2) For a violation resulting from a physical malfunction of a
measuring device not caused by the person or any other unintentional
misstatement, two hundred fifty dollars ($250), plus two hundred
fifty dollars ($250) per day for each additional day on which the
measuring device continues to malfunction or the misstatement is not
corrected if the person fails to correct or repair the measuring
device or correct the misstatement within 60 days after the board has
called the malfunction or violation to the attention of that person.
   (3) For knowingly tampering with any measuring device or knowingly
making a material misstatement in a statement filed under this part,
twenty-five thousand dollars ($25,000), plus one thousand dollars
($1,000) for each day on which the violation continues if the person
fails to correct the violation within 30 days after the board has
called the violation to the attention of that person.
   (4) For any other violation, five hundred dollars ($500), plus two
hundred fifty dollars ($250) for each additional day on which the
violation continues if the person fails to correct the violation
within 30 days after the board has called the violation to the
attention of that person.
   (d) When an additional penalty may be imposed under subdivision
(c) for failure to correct a violation or correct or repair a
malfunctioning measuring device within a specified period after the
violation has been called to a person's attention by the board, the
board, for good cause, may provide for a longer period for correction
of the problem, and the additional penalty shall not apply if the
violation is corrected within the period specified by the board.
   (e) In determining the appropriate amount, the board shall
consider all relevant circumstances, including, but not limited to,
all of the following factors:
   (1) The extent of harm caused by the violation.
   (2) The nature and persistence of the violation.
   (3) The length of time over which the violation occurs.
   (4) Any corrective action undertaken by the violator.
   (f) All funds recovered pursuant to this section shall be
deposited in the Water Rights Fund established pursuant to Section
1550.
   (g) Remedies under this section are in addition to, and do not
supersede or limit, any other remedies, civil or criminal.

 

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Level , Seal, and Replace for Accurate Flow Measurements

Build measurement devices level, leak-proof outside and at boards inside, and replace old boards for accurate flows and to avoid fines for noncompliance.

Some operational considerations for flow measurements are the same as for your house.  When it was built, the foundation was made level.  Sure there can be transitions – changes in level where steps will be built – but the whole foundation had to be perpendicular to gravity.  Otherwise, the whole house would be tilted, nothing would fitfile000972749236 together correctly, doors would not swing easily, windows might get stuck open, or worse.

It’s the same when measuring flow.  For any manually-measured device, like a weir, orifice, or flume, structures have to be installed level and replaced when they are no longer level.  More particularly for this discussion, weir and orifice boards must be level.  If the bottom of the weir box is not level, some adjustment can be made with the bottom board so that the top board is level.

A house is sealed against the weather, so air doesn’t blow through the cracks and water can’t leak inside the house.  If roof shingles come loose, the damage may cost hundreds of dollars by the time the ceiling shows a wet spot.

Weirs, orifices, flumes, or any other device cannot leak around the edges.  Otherwise some flow is not measured – so the reported diverted amount would be less than the amountSeal_Diversionactually going past.  Inside the device, the boards have to be sealed.  They might be sealed with plastic and gravel, as shown below, or just well-fitted.  If the soil is sandy, it is easy to dump shovelfuls of sand along the backs of the boards until the sand fills the cracks.  As long as the boards are not changed out, they will stay sealed for the season.

Boards wear out, too.  Fortunately, lumber is inexpensive for the few boards needed in a weir or orifice.  They should be replaced each year, or every 2 years at the most.  Everyone knows why – boards warp, shrink, twist, and otherwise change so they won’t fit well03_Weir_Board_Going_Intogether anymore.  Besides fit, an old board can’t be leveled; one end will be level but the other end will not because of the warp or twist.

All of these considerations might seem like common sense, but 2/3 of diversions out in the field fail in at least one of these 3 tests.  Maintenance and replacement of measurement devices is not fun, but it’s like a house.  If a home is not built level and leak-proof, and rotted wood replaced, then damage only gets worse faster so it’s not a nice place to live.  In the case of surface water diversions in California, not only do these factors affect flow measurement, but they can affect compliance with the law, make neighbors upset, and possibly incur fines for inaccurate devices or misreported flows.

Demo Measuring Weir and Orifice; & Who To Call At The Board?

On January 16, we set up boards, this time videos show measuring flows over a weir and through an orifice!

Simple to set up weirs and orifices

Measuring Weir On Youtube: https://www.youtube.com/watch?v=-wOJrWIpPaM

Measuring Orifice On Youtube:  https://www.youtube.com/watch?v=-wOJrWIpPaM

Last time, on January 16, we looked at how to set up weir and orifice boards in a dry diversion.  This is more exciting – now we’re actually measuring flow over a weir and through an orifice!

Shawn_gesturing_in_fron_of_weir

Shawn_Sticking_WeirStanding in front of the Wigno Weir, getting ready to “stick the weir” with an engineering ruler.  The ruler has inches on one side and tenths and hundredths of a foot on the other side – which is how engineers and surveyors measure the world in English (non-metric) units.
Shawn_pointing_with_rule

 

Shawn_in_front_of_orifice

Sticking the weir with the ruler face-on shows that the depth is 0.31′, the same as the depth in the upstream pool.  The weir is 3.30′ wide and is suppressed or flat-sided – the water does not have to turn the corner while going over the weir.

Shawn_with_rule_in_front_of_orifice

 

 

With these measurements in hand, it’s a quick calculation using the suppressed weir equation:Supp_Weir_Eq_2

to find 1.90 cfs.

Here is the same weir, before being set up with orifice boards.  Flow is measured through a hole instead of over the top of the boards

 

The same engineering ruler is used, but this time measuring from the center of the hole, up to the top of the upstream water surface.

 

Actually, it’s easier to measurefrom the bottom of the hole and subtract off half the height of the hole.  The hole is 1.00′ wide, 0.30′ high, and the water height is 0.25′.

Shawn_with_rule_in_front_of_orifice

This time, the flow is less, at 0.73 cfs, using the equation: Supp_Orifice_Eq  WHY?  I did not wait the 5 minutes it would take for the upstream head to stabilize.  It was cold and about to get dark and the videographer was patient but getting cold.  🙂

A question I hear all the time is, “Hey, I got this letter from the ‘State Water Resources Control Board‘.  What am I supposed to do about measuring my flow?  How do I keep from getting in trouble?”  The main number for the Water Board is (916) 341-5300 – and these folks have much more work to do than time to do it.  Several calls may be required to reach a knowledgeable person who isn’t already talking to two telephone calls, or making three investigations in the field.  Since the most calls I get are about enforcement letters, calls, or visits from the Board, it’s probably most useful to have the phone numbers and emails from Enforcement Program Staff.  Here they are, from:

http://www.waterboards.ca.gov/waterrights/water_issues/programs/enforcement/compliance/

Enforcement Program Staff

Katherine Mrowka, Manager
(916) 341-5363
Kathy.Mrowka@waterboards.ca.gov

Enforcement Unit 1 Enforcement Unit 2

Laura Lavallee, Supervisor
(916) 341-5422
Laura.Lavallee@waterboards.ca.gov

Ramon Ruiz
(916) 341-5411
Ramon.Ruiz@waterboards.ca.gov

Kyle Wooldridge
(916) 323-9405
Kyle.Wooldridge@waterboards.ca.gov

Janelle Heinzler
(916) 323-9406
Janelle.Heinzler@waterboards.ca.gov

Dave LaBrie
(916) 341-5343
Dave.Labrie@waterboards.ca.gov

Paul Wells
(916) 323-5195
Paul.Wells@waterboards.ca.gov

Brian Coats, Supervisor
(916) 341-5389
Brian.Coats@waterboards.ca.gov

Chuck Arnold
(916) 341-5634
Chuck.Arnold@waterboards.ca.gov

Matt Quint
(916) 341-5380
Matthew.Quint@waterboards.ca.gov

Samuel Cole
(916) 341-5345
Samuel.Cole@waterboards.ca.gov

Jeff Yeazell
(916) 341-5322
Jeff.Yeazell@waterboards.ca.gov

Enforcement Unit 3 Enforcement Unit 4

Victor Vasquez, Supervisor
(916) 323-9407
Victor.Vasquez@waterboards.ca.gov

Michael Contreras
(916) 341-5307
Michael.Contreras@waterboards.ca.gov

Kathy Bare
(916) 327-3113
Kathy.Bare@waterboards.ca.gov

Oxcar Macias
(916) 341-5637
Oxcar.Macias@waterboards.ca.gov

Natalie Stork
(916) 322-8425
Natalie.Stork@waterboards.ca.gov

Tomas Eggers
916-327-8039
Tomas.Eggers@waterboards.ca.gov

Taro Murano, Supervisor
(916) 341-5399
Taro.Murano@waterboards.ca.gov

Michael Vella
(916) 327-3114
Michael.Vella@waterboards.ca.gov

Skyler Anderson
(916) 341-5355
Skyler.Anderson@waterboards

Kevin Porzio
(916) 323-9391
Kevin.Porzio@waterboards.ca.gov

Bill Rigby
(916) 341-5376
Bill.Rigby@waterboards.ca.gov

Stephanie Ponce
(916) 319-8107
Stephanie.Ponce@waterboards.ca.gov

How Can You Keep Up With The Water Board?

SWRCB_EmailSub_Header

How can anyone keep up with all the new regulations from the California Water Board?  Subscribe to the email lists affecting you (links below).

It’s impossible to keep up with everything, so we have to pick and choose.  But the pace of Water Board regulations is already jet-speed and headed toward hypersonic.  It’s wise for everyone who diverts surface water to subscribe to relevant email lists and then at least scan the ones that look important.  The link for all Water Board Subscriptions is:

http://www.waterboards.ca.gov/resources/email_subscriptions/

The link for statewide issues is below.  I think I counted 174 possible email lists, but you can probably pick the 10 that affect you the most and keep up pretty well by reading these:

http://www.waterboards.ca.gov/resources/email_subscriptions/swrcb_subscribe.shtml

Of course, AllWaterRights.com, this blog, will highlight the most important issues for surface water diversion measurement, water rights, laws, and regulations.  Come back often and you’ll see one or two new posts each week.  🙂

As a bonus for those of you who read this post, here are a couple of Death Valley photos my wife and I took last weekend.  This year there is a super bloom!  Last year was very wet, DeathValleySuperBloomand while we were there were good showers in several parts of the valley.

There is also stunningly beautiful geology, with colors ranging from white to black, and in between amazing hues of green, red, blue, orange, yellow, purple….  It’s the first time we had ever been there in daylight and we want to go back.  If it is raining in Death Valley, that bodes well for all of California this year.DeathValleyGeology_2

Good night all, and enjoy the rain and snow!

Board Updates Proposed Regs March 2

March 2, the California Water Board has updated the proposed regulations for measurement of surface water diversions.  You have to move fast to beat the comment deadline!

The notice is required to be given “…at least five working days prior to submission of a proposed emergency action to the Office of Administrative Law (OAL).  Then, “After the submission of the proposed emergency to OAL, OAL shall allow interested persons five calendar days to submit comments on the proposed emergency regulations as set forth in Government Code section 11349.6. This document provides the required notice.”  I haven’t called to check, but this could mean there are only 4 more days, until either March 6 (Sunday) or March 8 if “days” are M-F.

The definition of qualified persons is expanded, which will greatly help people with small diversions to comply at less cost, and sooner!  Instead of just engineers, now contractors and “professionals” may install and certify measurement devices.  The deadlines are stretched out somewhat – the biggest diversions (equivalent to 1.40 cubic feet per second 24-7-365, or 5.60 cfs for 90 days straight) and storage over 1,000 acre-feet per year have20160302_BdPropReg_AcrcyFreqQualIndvto be done by January 1, 2017 – less than 10 months.  The diversions equivalent to 0.14 – 1.40 cfs year-round, get six more months, to 7/1/2017.  The smallest diversions, 0.014 cfs year-0.14 cfs year-round, get until January 2018.  That makes sense – the Board gets the most bang-for-the-regulations with the large diversions.

In addition, the Board gives some estimated costs, which helps to plan for the expenditures.  It can be expensive, but when done right, devices can last 10, 20, even 40 years in some cases:

20160302_BdPropReg_CostRange

That’s all for now.  If someone already passed along comments that represent your water right interests, that’s great.  If not, you have a few days to make your own comments.

Water Management (Sharing Shortages) In California In the Short and Long Term, Part 2

Continuing from Part 1, why would a groundwater shortage in San Diego affect how much a surface water diverter in Modoc County could use…rather, how much the diverter has to reduce his use?  Where does all groundwateWatercyclesummaryr come from?  Surface water flowing in streams, accumulating in meadows, ponds, and lakes replenishes groundwater, whether it takes a year, 3 years, or 20 years.
Rainfall infiltrates (soaks in) until the soil has no more capacity, and then runs off.  Groundwater is directly connected to, and depends on the amount of surface water.

In 2009, just 7 years ago, the California Legislature passed and the Governor signed Senate Bills 1, 6, 7, and 8.  These new laws required:

In 2013, 4 short years later, the Sustainable Groundwater Management Act passed.  This is a gigantic change in state groundwater laws – 515 groundwater basins in California are now prioritized based on overdraft, increased groundwater pumping, and falling groundwater levels; or conversely, the health of groundwater basins – some are hardly even touched.  On this map, now everybody can see what was neCASGEM_BasinPrioritization_Statewidearly invisible 2 years ago – the state of our groundwater basins.

About 2/3 of California’s water falls in the northern 1/3 of the State.  However, most of the good agricultural land, as well as most of its population, is in that drier 2/3 of the State.

Back to San Diego potentially affecting how much water can be diverted in Modoc County…does San Diego even have a groundwater basin?  Yes it does, along the Sweetwater River.  Of course this isn’t hydrologically connected to drainage from the Pit River in Modoc County; the Pit River ultimately eCASGEM_BasinPrioritization_SanDiegonters the Pacific Ocean in the Sacramento River-San Joaquin River Delta, and the Sweetwater enters the ocean on the shores of the City of San Diego.

Think about it:  7 short years ago, groundwater was mostly a mystery to 90% of folks, and surface water management was hardly “integrated”, except for the federal Central Valley Project (CVP), State Water Project (SWP), and some relatively small projects.  20 years from now?  Heck, that’s 2036; I’ll bet that, just continuing the –> trajectory –> of legislation that started in 2009, by 2030 (14 years from now), surface water and groundwater will be so connected and co-managed, that shortages in San Diego will require diversions to be reduced from where the water is in those northernmost Counties contributing to the Sacramento River drainage:  Siskiyou, Modoc, Shasta, part of Lassen, Tehama, Glenn, Butte, and Plumas.  I put in print so we can check my prognostications down the road.  You heard it here first!

Maybe that sounds paranoid or protective.  It’s not, I would think the same whether I lived in Crescent City, San Francisco, Susanville, Oroville, Bakersfield, or San Dimas.  After all, who would have thought in 2007 or 2008, that we would be integrating surface water use, looking at groundwater maps in syndicated newspapers, hearing of possible  fines of $25,000 for misreporting surface water diversion in the middle of nowhere…?

That’s all for now, by the end of the week we’ll be back to discussing the many aspects of the diversion of surface water.  Have a good night, everybody.