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.

Ready-to-install 3-inch Montana Cutthroat Flume

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

Temporary Weir In Ditch

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.

Measure Any Flow With Watchman Flumes

How can large diversions be measured?  Long-throated flumes are a good option, especially if the ditch has low banks, or a lot of sediment or debris could clog a weir or orifice.  Premanufactured Parshall or Replogle flumes go up to around 20 cubic feet per second (9,000 gallons per minute).  If they are made for larger flows than that, they are prohibitively expensive to ship or manufacture.

Watchman 10 cfs flume

Recently, though, Watchman long-throated flumes have become available.  They are made in Northern California, so shipping costs are lower.  They typically go up to 20 cubic feet per second in size, but I have installed a 30-cfs Watchman flume.  The manufacturer can easily make larger-capacity flumes, too – standard plans go up to 60 cfs, and they can be shipped in ready-to-assemble sections for up to 200 cfs.

Watchman flumes are made of 10-gauge steel, a little thicker than 1/8 inch.  The premanufactured flumes I have seen ship from outside the state are made of 16-gauge steel, which is about 1/16″ thick.  These can work well if care is taken during installation, but the Watchman’s heavier gauge steel can withstand more backfill and rougher treatment.  They’ll last longer, too.

Watchman 20 cfs flume

What about cost?  It turns out that Watchman flumes are about the same cost per cubic foot per second, as flumes made from lighter-gauge steel.  Some farmers and ranchers like concrete better than steel.  Watchman flumes can be built inside Briggs pre-cast concrete rice boxes and weir boxes, if you need an installation to last for 30 years or more.

Where can you buy these?  The manufacturer does not advertise – let me know and I can put you in touch with them.

Can a water right be lost?

This is a question that comes up all over California, every day.  It usually comes in one Headgate on streamof two ways:

  1. I’m about to buy some land.  Will I have a water right if the previous owner did not use it for X years ?
  2. My neighbor hasn’t used his right in X years.  He lost it, so I can use it, right?

The short answer is yes, an appropriative, post-1914 water right can be lost.  Court-decreed water rights, riparian rights, and pre-1914 cannot be lost – usually.  We’ll discuss those cases later in the post.  What most people are thinking of is the provision from WATER CODE SECTION 1240-1244:

1241.  If the person entitled to the use of water fails to use beneficially all or any part of the water claimed by him or her, for which a right of use has vested, for the purpose for which it was appropriated or adjudicated, for a period of five years, that unused water may revert to the public and shall, if reverted, be regarded as unappropriated public water. That reversion shall occur upon a finding by the board following notice to the permittee, licensee, or person holding a livestock stockpond certificate or small domestic use, small irrigation use, or livestock stockpond use registration under this part and a public hearing if requested by the permittee, licensee, certificate holder, or registration holder.

Diversion box to field“Board” means the  State Water Resources Control Board.  The emphasis on “may” and “if” is mine, and it is important.  Loss of a water right under this provision is not automatic.  It takes a complaint by someone to get it started, just as it takes a complaint for someone to get a water rights case heard by the judge of a Superior or Federal Court.

Then, if the water right holder protests that yes, he or she has diverted water during the last 5 years, it’s up to the complainant or the Board to prove that water was not diverted.  This might be from yearly photos of the land in question (rare), testimony by several neighbors;, or a lack of records from the water right holder, showing that there was indeed a crop, pasture with cattle, hay, or some other beneficial use; or some other evidence.

Let’s consider riparian rights and then put that discussion aside.  A riparian water right cannot be lost for non-use, since it is established by the Constitution of the State of California.  Riparian rights are not being considered here, and they are discussed in greater detail in the post Riparian Rules by Chuck Rich.

How does someone know that their water right may be on the chopping block?  They will have already had phone calls and probably visits from Board staff.  There should be no surprise at this point.  Then, the Board will send a letter that starts something like this:

Notice_proposed_revocation

There is an opportunity to dispute the assertions in the letter, and a water right holder can request a hearing (or hearings) before the Board.  If the alleged non-use is not a watertight case, the process can take a year or longer.

What if the water is a pre-1914 water right?  Can it be lost?  The answer used to be a fairly solid “no”, but the Board’s authority has increased in recent years.  It is harder to lose a pre-1914 right but the best defense is having used it at least once in the past five years, and having some proof it was used.

Diversion box from diversion

What if the water right is part of a  State Superior Court  or  Federal District Court  decree* or adjudication?  Interestingly, very few decrees have ANY provision for expiration of water rights.  In addition, courts usually maintain jurisdiction of these cases, so that any following petitions or lawsuits over decreed water rights must go back to court.  In essence, this makes decreed rights “eternal” or permanent, unless the rights are changed in a subsequent lawsuit.  *Statutory adjudications where the Board issued an Order of Determination, and then took it to the Superior Court to be adjudicated, might be easier for the Board to bring before the court for a revocation action.

What does the Water Board think about that?  Board staff assert that they have “concurrent authority” with State Superior Courts.  That means they have equal power over water rights.

Credit: Pixabay
Courthouse.  Photo Credit: Pixabay

Some at the Board say they have authority over the same water rights that the court does.  Is that true?

Let’s say that it is true.  Has the Board ever asserted its authority over decreed water rights in court?  The last few times I asked Board staff, the answer was “no”.  So it may be true, but as far as I have heard, it has not been tested.  So, no, decreed rights cannot be revoked by the Board without going to court.

What if a water right is managed by a water district, irrigation district, or other agency?  It boils down to, who owns the water rights?  If the district or agency owns them, then they can usually reassign them because of non-payment, and for some other reasons, too.  If the landowners own the water rights, then all the preceding paragraphs of this post apply.  The agency or district just wheels the water, for which they can collect fees for operation (labor) and maintenance if their bylaws allow.

Summarizing the subject of losing post-1914 appropriative water rights for five years of non-use, then, they can be lost if the water right holder admits it, or if there is good evidence that water has not been used.  Pre-1914 rights are harder to lose but it can happen.  The Board cannot revoke riparian rights because they are defined in the State Constitution.  Court-decreed rights cannot be revoked by the Board without going to the court with a petition or as part of a lawsuit.

What Are The Surface Water Rights When Ag Land Subdivides?

Update: I wrote this post for property owners NOT in a municipality, water company, water district, irrigation district, community services district, or other organization that has its own bylaws regarding the rights to and distribution of water.  For property that gets its water this way, water rights depend on how the bylaws allow redistribution, sale, temporary reassignment, or other transfer.  There may even be an original court decree that specified rights to individual owners, but the agency passed bylaws later that assigned water rights to the agency instead.  With the exception above considered, here is the original post:

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When a farm or ranch subdivides, what happens to the surface water rights?  We already got part of the answer from the State Water Resources Control Board, in Post # 82:

A018405_ewrims_lic_pg1_purpose_amtPermits And Licenses – What Are The Water Rights When Land Is Subdivided?  In summary, it is up to the water right holders to notify the Water Board that the land has subdivided and go from there.

The answer is well defined when a Superior Court Decree is under State of
California Watermaster Service:  Water Rights Reapportionment Method.  This document describes what is done under nearly all decrees with defined areas for water New_Pine_Dec1stpg_1925 - Editedrights, whether or not under state service…unless some other method is specified.  The State subdivides water rights whether or not new owners of subdivided parcels notify the Department of Water Resources; the requirement falls on the State instead of the water right holders.  Owners of land are notified at least once a year, since a charge for watermaster service is included on their tax bill.

What ACTUALLY happens with the water, when a subdivision is built on what used to be a farm or ranch?  Does water always go with water rights?

New Subdivision On Ranch With Water Rights - Photo Credit: Pixabay
New Subdivision On Ranch With Water Rights – Photo Credit: Pixabay

How do the owners of smaller parcels go about getting their water right?  In some cases, new owners have invested in pipelines to keep using the water right on the smaller parcels.  When the original owner subdivided the land, he or she made it clear that water rights were split up, or may have paid an attorney or engineer to split them up in advance.  These owners are well aware of what their rights are.  In other places, some new owners use water, others don’t, which is fine as long as a new owner doesn’t complain loudly.

Ex_2_Williamson_Parcel_Outline_on_DecreeMap_reducedIn still other locations, none of the new homeowners wanted to use the water, either because there was a built-in municipal supply of pure or treated water, or because one or more private or community wells were drilled.  The water right probably was not advertised as being available when the homes were built, and once the new owners were in, it became a lot more expensive to arrange pipelines across several neighbors’ properties to get a share of the surface water right.

What happens when nobody uses the water, or less water is used?  The answer is, of course, “It depends.”  If it is a decreed right, then the right stays with the

Subdivision On Old Farm - Photo Credit: Pixabay
Subdivision On Old Farm – Photo Credit: Pixabay

land unless the decree specifies another method.  It would take another court order to change the rights from what was originally decreed.  If it is a riparian right, then unless the owner was very careful to reserve riparian rights when subdividing the ranch, the only remaining rights are with those new parcels still adjacent to the stream.  Owners rarely think about reserving riparian rights in these cases, and so the riparian right is lost.  That is, unless:

  • The right was filed with the Water Board, either as a pre-1914 water right or a post-1914 application and the owner was subsequently issued a permit or license
  • …and the water continued to be used, and that use documented by the owner or with the Water Board
  • …and the water is used reasonably and beneficially, either for the original purpose of use, or for one of the many other appropriate purposes of use the Water Board considers reasonable and beneficial
  • …or, the right is part of a Superior Court adjudication, in which case the right is “eternal” because, for all the adjudications I have seen, there is no provision for expiration of rights.  Another court case is needed to change rights defined in the original decree.

I know this is not a neat, tidy explanation of what happens to water rights when a farm or ranch is subdivided.  Not surprisingly, water rights are well-understood by maybe 1% of California’s population.  No offense intended – only a few percent of the population lives on farms and ranches, and a fair number of those are in water or irrigation districts where the board and manager deal with the actual water rights.

In summary, this is an accurate description of what happens, as opposed to theoretical cases.  Water right subdivisions have a legal side, and a practical/applied side.  Sometimes the legal water right persists whether or not the water is used, as with riparian and court-decreed water rights.  Other times the reasonable, beneficial, and mostly continuous use of the water is what protects the existence of that right, for appropriative pre-1914 or post-1914 water rights.  Even if a pre- or post-1914 water right is not used for some years, when the owner does start using the water, if nobody complains, there is nothing to trigger action by the Water Board, or a lawsuit by neighbors.  After a few years of use, it will be hard for a complaining party to make the case for loss of the right because of the previous gap in time.

By the way, except where courts have decreed what the groundwater rights are, they are most like surface water riparian rights.  Regardless of the size of subdivided parcels, all of them still overlie groundwater and have a right to use it.  Control of their use is increasing with the  Sustainable Groundwater Management Act, and priorities (effective or actual) will be established, but that is a discussion for some later post.

Is John Stealing Water?? Orifices And Sum Of The Boxes

This is updated from a previous post, which was an example for a stream with adjudicated water rights.  However, it also works for any stream where there are water rights with legally defined diversion quantities, if all the diverters have headgates in good condition and/or measurement devices such as weirs, flumes, and pipe meters.

Is John Stealing Water??  John Casey has a cattle ranch near Adin, where he grows pasture and hay to raise about 70 Angus steers.  His ranch is 240 acres with lower irrigated land and forest on the higher part.  He has an a licensed water right of 2.00 cubic feet per second (cfs) from Preacher Creek, to irrigate 80 acres, from April 1 to November 1.

John’s downstream neighbors claim he steals water.  He says he can show that he takes only 2 cfs, or less when the flow drops down in the summer.  Can he prove it?John_Headgate_edit

As we can see, he has a square headgate at the head of his ditch.  It is 2.0′ wide, and can open up to 1.5′ high.  Right now, John says he is diverting 1.05 cfs.  His evidence is that his gate is open 0.15′, the water is 0.57′ deep on the upstream side, and the water is 0.20′ deep on the downstream side.  Is that enough to check what he says?

The box in which the gate sits has smooth walls, and the gate closes flush with the bottom when John is not diverting.  The water continues in a straight path from upstream to downstream.  That means the weir has “suppressed” sides.

This is in contrast with, for example, a hole cut in the middle of a 2″ x 12″ weir board.  The water on the sides has to make the turn to go straight through, so the hole in the board is an example of a “contracted” orifice.

Let’s look at the tables for orifices in the back of the Water Measurement Manual.  Table A9-3 is for submerged, suppressed weirs.WMM_Table_A9-3_suppressed

We can’t see the downstream side of the weir, but the water is above the bottom of the edge of the gate, so it is submerged rather than free-flowing.

This table has flows calculated for a minimum area of 2.0 square feet (sq. ft.).  However, the area of the opening at John’s headgate is 2.0′ wide x 0.15′ high, or 0.30 sq. ft.  Fortunately, the equation, Q=0.70A(2g Δh)^0.5, is listed right at the top of the table.  We can calculate the flow using that.  Q is the flow in cfs, A is the area of the orifice hole, g = the acceleration due to gravity, or 32.2 ft/second^2 (feet per second squared), and Δh is the difference between the upstream and downstream water depth.

So the flow Q = 0.70 x (2.0′ x 0.30′) x (2 x 32.2 x 0.37′)^0.5 = 1.03 cfs.  So far so good – John is taking 52%, or just over half of his right when 100 percent of flows are available.  But, how much flow is actually available right now?

Let’s use the “sum of the boxes” method.  Instead of measuring the amount of water in Preacher Creek at the top, before any diversions, and then estimating how much flow is being lost to evaporation, transpiration, and infiltration, and then estimating how much flow is subsurface above John Casey’s ranch and “pops up” out of the ground below, we’ll look at what each diversion amount is, plus the amount still in the creek after the last diversion.  This is very useful because none of the instream losses have to be estimated – we just add the diversions and flow still in the creek, and that amount IS the available supply.

Water Board Permits and Licenses are usually not interrelated – they specify water rights without considering the other water rights on the stream.  This is different from adjudicated streams, whether done by the Water Board or the Department of Water Resources.  Some Superior Court judges in past decades were pretty smart and actually ordered that available flows be calculated by the sum of the boxes:

Susan_1_of_2_DecreeParaAvailWaterEqualsDiversionsSusan_2_of_2_DecreeParaAvailWaterEqualsDiversionsThe paragraph above, from the Susan River Decree, defines available water supply as what is being diverted, plus the flow passing the last diversion.

There are 4 diversions on Preacher Creek, and here are the amounts being diverted:

  • Diversion 1 (John Casey) 1.03 cfs  of a 1.60 cfs water right, 52% of his total right
  • Diversion 2 (Amy Hoss) 1.67 cfs  of a 3.80 cfs water right, 44% of her total right
  • Diversion 3 (Mark and Cindy Sample) 0.55 cfs  of a 0.88 cfs water right, 62% of their total right
  • Diversion 4 (Quint and Marcie Minks) 1.32 cfs  of a 2.50 cfs water right, 53% of his total right
  • Flow still in the creek past the Minks Diverison – Quint estimates about 0.7 cfs

The total diversion-plus-bypass flow is about 5.3 cfs.  The total rights on the creek are 9.48 cfs.  Therefore, the total available flow = 5.3 / 9.48 = 56%.

So, John is right, he is not stealing water!  He is taking 52% of his water right, when he could be taking 56% according to the “sum of the boxes” method.  Not only that, but Amy could take more, the Samples should reduce their diversion, and the Minks’s could take a tad more.  Well, that’s theoretical – Quint and Marcie Minks probably cannot seal up their dam completely, so there may be a little bit less flow actually available for diversion.

File Logger And Meter Data In 2019, With Annual Reports

Diverters and reservoir owners have been wondering, when is water level logger or meter data supposed to be filed with the Water Board?  I checked with Jeff Yeazell, our public contact at the Water Board.  Folks will be able to file data with their annual reports in 2019, so you’ll do it while you are already in the Report Management System to file your Reports of Licensee (due April 1) or Supplemental Statements (due July 1).  The new forms will likely be available in January of 2019.

Jeff is a great guy, knowledgeable, very responsive, and easy to talk with, so you can be reassured you’ll get a response and most likely an answer if you contact him.  His email is Jeffrey.Yeazell@waterboards.ca.gov and you can call him at (916) 341-5322.

https://public.waterboards.ca.gov/WRInfo/ :

Data Loggers – Convenient…But Data Will Be Lost

The Water Board requires diversions and storage over 10 acre-feet per year to be recorded, per SB 88, other state laws, the California Water Code, and agency regulations.  Data must be recorded monthly, weekly, daily, or hourly, depending on the size of the diversion or reservoir:

But we don’t live in a perfect world.  Things will go wrong.  Whether you record data by hand in a notebook, or a data collector records data electronically, data will get lost.  Why not just use a notebook or phone camera?  That works when the data collection interval is monthly, and might work for weekly.

However, if diversions are over 100 AF or storage is over 200 AF per year, data must be collected daily, and diversion or storage of 1,000 AF per year or more requires hourly data collection.  That daily or hourly interval makes electronic data collectors of some kind a requirement to have the data and avoid those fines of possibly $500/day.

 

We’re all busy, so we have to make time to spend half a day or more downloading loggers 2 or 3 times each year.  The leaves the possibility of data loss between the times data is downloaded.  Why not download data once a month, or weekly?  That’s not doable for ranchers and farmers who are already spending long days just to try and make a profit.

At some point, data will be lost.  You could just use the last measured value for all the intervals that were lost, but in reality storage volumes change based on rainfall, evaporation, stock and wildlife use, and releases.  Diversions change based on available flows in the stream and changes in irrigation, stockwater, or other uses at the place of use.  Sometimes diversions are maxed out for a day or two for filling a ditch or flooding up, and other times they are shut off for haying or maintenance.

How will you tell the Water Board that data is lost, even though you did your level best to do everything rig

ht?  Perhaps data was downloaded in February, June, and October…but the fields for February 15 through June 10 are blank.

 

As always, if you are behind the 8-Ball, communicate early and often.  Jeff Yeazell is the public contact outside of the Delta, and Jeff is scrupulous about replying and hanging on to emails.  If you’re really worried, include someone else in an email.  Notice I said “email” and not “phone”.  Phone calls are a lot more work on the receiving end, and information can get lost more easily.

Of course, also take extraordinary steps to recover the data.  Maybe an expert can try a few things to get the data off the unit.  You might have to send it to the manufacturer and see if they can download it.

Be diligent, check setups twice and three times, save downloaded data in 2 places immediately after downloading, download as often as you can, and otherwise be diligent and careful.  In the end, though, data will be lost, but don’t panic.  Communicate early, often, completely, and repetitively.  Keep estimates or spot-check notes throughout the year, and use those to fill in gaps if you have to.