No Trouble Catching Up SB 88 Late & Drought Over

I forgot to mention in my last post on SB 88 compliance, https://allwaterrights.com/2019/02/27/hiding-from-the-water-board-dont-worry-get-compliant/, that you’re still okay if you comply with SB 88 now.  The Water Board is not issuing Cease And Desist Orders (CDO) or fines for folks who catch up now, even though it’s late.  This is true whether you have yet to install a measurement device, a data logger/recorder, or catch up your Reports Of Licensee or Supplemental Statements.  I have seen no adverse action for anyone I know, or clients of other consultants.  There are a couple of exceptions here:

  • You need to catch up before the Water Board contacts you.  By that time, you’re probably getting or about to get a CDO with 30 days to comply and report.
  • If you’re already being contacted, if you received a CDO, if the Water Board is issuing you an Administrative Civil Liability (ACL), if you’re headed to an ACL hearing, then you still need to comply as quickly as possible.  Your hassles and fines will not increased, or they may be significantly reduced, and you may still be able to stop the process before you get fined.

I don’t know what may happen in, say, 2020, for folks who have no data for 2018.  The same logic applies: get a data logger in and collecting data as soon as possible, and there might be no hassles even for missing data.

Start with a Request For Additional Time.  This is quick to fill out and buys you some instant grace.  Also, if you had extenuating circumstances like the Carr, Camp, or Mendocino Complex Fires, or other disasters, send an email to Jeff Yeazell, the Water Board’s Public Contact official outside of the Delta.  Jeff is very nice, and he is careful to respond back and to keep the emails he gets.

As always, explain in the Remarks and/or other text sections of your Reports Of Licensee or Supplemental Statements anything that helps explain your late compliance, and anything that shows even partial compliance.

And the best news right now is that the drought is over!

 

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Hiding From The Water Board? Don’t Worry, Get Compliant

Are you hiding from the Water Board because your ditch or piped diversion does

Small Ditch In Meadow With No Measurement Device

not yet have a measurement device?  Give me a call at (530) 526-0134 –  you might find some workable answers in a 15-minute conversation that costs nothing.  You want to get on with the important things in your life and business, and my mission is to help you by solving diverters’ headaches to provide peace of mind, and help stay out of trouble.

The installation deadlines were January 1, 2017 through January 1, 2018.  Maybe you don’t want any more government oversight because you put up with a lot already.  You could be losing sleep over the potential large fines.  Or, what if you do install a device, and you worry that you will be in trouble and have to pay fines as soon as you report your new compliance with SB 88?  You might not know what needs to be done, and you’re worried it will cost you $15,000, or $20,000, or more.

You might be thinking that the Water Board is plenty busy, and you’re right.  The folks there are going through thousands of online forms for Measurement Methods, Alternative Compliance Plans, Reports Of Licensee and Supplemental Statements that have new measurement device information in the blanks, and Requests For Additional Time.  My guess is that it could take as long as 5 years before the enforcement staff get out to the most far-flung corners of the State…but it could be as soon as a year, depending on how the to-do pile is sorted.

Diversion Ditch Before Measurement Device Installed
Diversion Dam and Ditch Before Measurement Device Installed

 

 

 

 

 

 

Diversion Ditch Before Measurement Device Installed
Diversion Ditch Before Measurement Device Installed

 

 

 

 

 

 

Sure, some measurement devices have to be big to handle large diversions.  A direction of 20 cubic feet per second (9,000 gallons per minute) or more may require something like the first two flumes shown below.  The Parshall Flume shown below may be a $20,000 installation, but the Watchman Flume might only be an $8,000 installation.

As the diversion size decreases, the size and cost of the measurement device go down, too.  There may be a relatively temporary solution, like the pipe and board weir that costs only $1,000 or so including the water level logger if you do it yourself.  A larger, more permanent measurement device can be installed later.

New Watchman Flume In Medium Sized Ditch
New Parshall Flume
New 3-Foot Wide Briggs Mfg Concrete Weir
New McCrometer McPropeller Inline Meter With Data Collector

 

 

 

 

New Watchman Flume
New Montana Flume In Small Ditch

 

 

 

 

 

Temporary Pipe And Board Weir

Maybe: Measure H2O Phone App By USBR

A watermaster recently showed me a handy phone app 

to calculate flows through your measurement device.  Measure H2O  works on iphones and android phones.  I have used it for several devices – it’s quick and accurate.  Just fill in the blanks and out pops the flow amount.

However, it is currently not available when I hunt for it in the phone app store.  I don’t know why, I’ll see if I can find out.

Data needs to be collected at your diversion or reservoir at SB 88’s required intervals, whether monthly, weekly, daily or hourly.  This could help you meet the need for monthly or weekly data, if you can visit the site that  often.

 

 

How Do You Record Diversion Data? Water Level Loggers, Value Vs. Costs

Recording is the other half of measuring diversions from streams, under California’s new water diversion measurement and reporting regulations.  Diverters are required by law to measure flows at frequencies based on the volume of water diverted in a year.  The flow has to be measured and recorded.  Of course diverters may not care about the data – it costs money and it doesn’t add income.  What you and I want in all of our purchases is the best value for the money.swrcb_flow_meas_frequency-edited

For very small diversions, flows have to be recorded weekly.  That may be easy to do depending on the location and access to the diversion.

Shawn_Sticking_WeirFor medium-sized diversions, flows must be recorded daily.  This is possible, but
it doesn’t allow for the owner or employees to have time off, travel, and so on.  At this level of recording, an automatic recorder of some type is necessary.  Large diversions must be recorded hourly, and automatic recording is the only practical way to be sure flows are recorded.  That is the subject of today’s post: automatic recording of flows, or what is really done most of the time, recording water levels and using equations to calculate the flow.

About_1.4_cfs_over_weir_edited_smallWe will leave aside the discussion of propeller, acoustic Doppler, magnetic, and other in-line meters.  If you have a diversion that goes through a long length of straight pipe, one of these devices can be bolted in or strapped on.  This post is about open diversions into a ditch, where an instantaneous measurement device (weir, orifice, flume) already exists…or may be installed soon.  These open devices do not measure flow directly, they measure the water level.  An equation is used to convert that level to a flow.

There are hundreds of devices (ready to go) and components (connected parts) to measure water levels.  There are also hundreds of loggers that collect data.  Here, we will look at 4 water level sensors connected to data loggers, called water level loggers.

Onset has a neat Bluetooth Hobo water level logger.  This may help  to satisfy the Water Board’s telemetry requirements starting January 1, 2020; the data must be updated weekly on a website, and downloading data weekly is easier with this logger.  We’ll see what the Water Board says as this rolls out.  The MX-2001, with the cap removed, hooks up to the MX-2001-TOP with a cable, and once installed, is downloaded with the free Hobomobile smartphone app.  The app does everything you’d normally need a data shuttle and cable for – starting, setup, configuration, downloading, and stopping the logger.

 

 

The top unit with the Bluetooth radio has to be out of the water, so of course the top of the stilling well holding the unit has to be 1.0 feet or higher up out of the water.  If the stilling well is galvanized iron pipe, you’ll need to get within a few feet to download it.  If you are using PVC you might get a connection at 100 feet.

Will two units close to each other interfere?  Nope, the app finds both and lets the user choose which unit to work with.  As with any water level logger installation, keep a logbook or spreadsheet with the Serial Numbers for each location so you aren’t confused later.

What about barometric pressure?  The TOP unit records barometric pressure, so you don’t need a second unit for atmospheric pressure, nor do you have to know the elevation difference between two separated units.  The unit subtracts atmospheric from absolute pressure, then gives you all 3 values when you download:  absolute, atmospheric, water only.  That makes data processing much easier.

In California, you should be able to get one of these shipped to you for $750.  Compare that to the regular Hobos, which need one in the air, one in the water, and a data shuttle and cable.  It would put you back almost $1,000 to get the separate pieces shipped to you.  If you have two or more locations to log, then the old style is less expensive as far as parts go.  Still, the Bluetooth version is likely more cost effective when you consider the minutes saved each time the Bluetooth unit is downloaded, compared to unlocking or unscrewing the cap, getting the water unit out, downloading it, and replacing the cap or lock.

The next is a setup that rancher and retiraqua-plumbed aircraft engineer Frank Crowe uses.  Frank’s desire was to save him and his neighbors money, so he put together the Vegetronix Aqua-Plumb Water Level Sensor connected with the Logger-8-USB.  Together these are $340, which is
the least cost of anything that I have seen.  Add shipping, tax, logger-8-usb
and $60 in other parts and batteries, and for $450 you’ll have the parts you n
eed for moderately durable, reliable, and accurate water level logger.  Not only that, but 
the Logger-8-USB has 8 channels altogether, so a diverter could measure up to 8 water levels at once by adding 7 more sensors at $95 apiece, not including tax and shipping.

Here is Frank’s latest setup with his comments: “Finally was able to put together a prototype package for the vegetronix_frank_1_p1300077vegetronix_frank_2_p1300078Vegetronix sensor.  The box is a little bigger than needed, but seems to work.  I’m trying to get the data to download into something I can analyze, but it seems to work very stable.

The pipe is 3/4″ mounted to the box, with the sensor wire going down to about an inch from the bottom and then returns up over 12″, therefore doubling the sensitivity.  The end is held by some wire at the moment, but would probably work better with a stainless steel spring.  The top of the pipe is not sealed, but should be to keep the humidity out of the box.  Of course if the data logger were in a separate box, the seal would not be necessary.

To exercise the thing, it is stuck into a 3″ pipe with a water drip going in and a drain at the bottom.  The overflow hole is 13″ above the bottom.”

So, what is the trade-off?  If you are handy, somewhat experienced with electronic components, and willing to spend some hours, you can set this up yourself.  Frank can help a few of his neighbors, but he has his family and ranch requiring his time, too.  Otherwise, it is going to cost a couple hundred dollars or so for someone to set this up for you.  It needs to be checked, maintained, and adjusted more often than the integrated water level loggers, too, so the maintenance and downloading cost can be $50 to $100 per year if everything is working well.

Next, the Onset Hobo U20L-04 Water Level Logger is $300 before shipping and tax.  The DWR Groundwater folks I worked with for years, use these in groundwater wells.  They are easy to set up – program one and place it in a stilling well.  Take it out once or twice a year to dowonset_hobo_u20l-04-editednload the data.  The battery life is 5 years, maybe more.

Why aren’t these automatically the cheapest option?  They may be the cheapest if a diverter has 2 diversions or more, or several neighbors are using the same Hobo U20L-04.  However, they are not vented, meaning that as atmospheric pressure changes due to low pressure areas and storms, the device’s pressure reading will not be as accurate.  Therefore  Onset recommends having a second U20L-04 set up outside the water to measure the pressure change over time.  The second device can be some miles away, so one outside calibration device could be used for several in the water within a 100-square-mile area.

What I heard from colleagues is that these did not last for 10 years, and often not for five years.  Durability and reliability of a device are important for uninterrupted data, and therefore compliance with the Water Board’s regulations.  The more often onset_u20l-xx_handhelda device has to be replaced, the more it costs over time.

A download shuttle and cable are also required to get the data from the Hobo to your computer – delivered cost about $300.  In summary, the delivered cost of two Onset Hobo U20L-04 devices and the download kit is about $1,000.  This cost may be reduced somewhat if the cost of a calibration device can be shared between several diverters, or several diversions.

The third device discussed here is the Global Water WL-16.  This is an integrated, vented device, designed to program and set in a pipe.  Watermasters have used these for years at various diversions.  The delivered cost is about $900.global_water_wl16-edited

The WL-16 has a stainless steel casing and is fairly tough.  They should last a good 5 years.  The problem is at the sensor end – it is relatively easy to clog up in warm-water conditions, with algae and/or silt.  In cool flowing water, it might operate for the whole irrigation season.  In warmer or still water, it will have to be checked and sprayed clean every 1 to 3 months.  Watermasters have put the sensor ends in distilled water in baby-bottle bags, and rubber-banded the tops of the bags closed to keep the sensors clean for the entire irrigation season.

One other concern which I have not discussed with the manufacturer – the manual for the WL-16globalwater_wl16_in_field was updated in 2009 and refers to Windows XP, not the current Windows 10.  I am sure that a newer manual is sent out with the device when it is purchased.  Overall, with some care to check the sensor end and clean it as necessary, this is a great drop-it-in-and-turn-it-on option.

The fifth water level logger discussed here is the PMC Versaline VL2111 – WLS-31 Water Level Datalogger.  This looks much like the WL-16, but instead of a silicon bladder at the end of sensor, it has a non-fouling ceramic sensor.  At $1,370 before tax and shipping, it has the highest purchase cost of the 4 listed in this post, but it is my recommendation for durability, reliability, and low maintenance.

pmc_vl2111-with-wls-31-datalogger

The Versaline is made for wastewater; in other words, for sewer lines.  The datalogger end is vented and it is not supposed to be submerged, same as the Vegetronix components and the WL-16.  However, it is made to put inside manholes where it is very warm and humid.  The PMC guys have maintained the sensor end in rough environments with the equipment lasting 8 to 12 years.  If the sensor gets completely covered with algae (or something worse), it still works.  It can be cleaned off with a toothbrush if it seems so clogged it might prevent water from getting to the ceramic end.  The data logger and sensor are fairly new but are improvements on the older, long-lived versions.

The VL2111 – WLS-31 is three times the cost of the least-expensive option.  However, it might be the least expensive in the long run…it sure is the most worry-free of all the options listed here!

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.

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.

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/ :