Month: March 2016

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.

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.