Three water rights bills are headed to the floor for votes, as of May 18, 2023. These bills propose to make water right holders prove their claims whenever the Water Board demands, inspect your diversion without your permission if the Water Board says it’s for public health and safety, and make senior (riparian and pre-1914) water right holders curtail their water rights. Your Farm Bureau, Cattlemen’s Association, and other groups are working to reduce these bills, and to encourage legislators to vote against them.
I summarize bill information below, and you should read the bill text yourself. Each bill name below is linked to the bill text at https://leginfo.legislature.ca.gov/. There are a few good newspaper articles; one is at the Modesto Bee.
SB 389 would make you have to prove your water right, regardless of whatever information you or previous holders of the right have submitted to the Water Board. Then the Water Board would decide whether you have a right at all, and what kind of water right you have. The Water Board would demand information including your use of the water including your measurement device, calibration, accuracy, photos, maps, quantities, all diversion data, etc.; the basis of the water right claimed; patent date claimed for the place of use; notice date of the appropriation and the date of actual delivery of water to beneficial use; prior diversions and use, including direct diversions and diversions to storage; and diversions and use of transferred water.
AB 460 would let the Water Board inspect your property with no warrant if they decide that public health and safety are at risk, and if you don’t voluntarily let them inspect. The Water Board could now issue you an interim order to stop diverting or take some other action, whether or not there is a complaint. The bill language is not clear on this, but it looks like the daily fines for violating “a term or condition of a permit, license, certificate, or registration issued by, or an order or regulation” would increase from $500/day to $1,500/day, up to $10,000/day. You could request a hearing within 20 days after being served with the complaint, but the Water Board could make an interim order before the hearing if they think that “immediate compliance is necessary to prevent imminent or irreparable injury to other legal users of water, or to instream beneficial uses.”
AB 1337 would let the Water Board curtail any water right at any time for any reason. This would include pre-1914 and riparian water rights. Also, it would let the Water Board continue its current practice of permanent curtailment, in which the Water Board lets you know each week that it’s okay for you to divert. The Water Board would continue to make you go check your curtailment status online each week.
What Can You Do?
- Get all of your paperwork together. Whatever you have related to your water right, get it all in one place. Do this now, don’t wait for a call from the Water Board.
- If you have a pre-1914 water right, you will need to have a copy of the original claim and any other related records from the Recorder at the county. Most have water right books with one or more indices to look up the original claim. Prior to 1910, most of them will be written in cursive, so they can take awhile to read and understand.
- Make sure you have records of your water use. Ideally, there will be a diary, log book, or other notes recording what was grown each year and an estimate of the quantities. If you know the previous owner, ask for a note on when and how water was used. It is important to have documented water use at least every 5 years; this used to apply only to post-1914 water rights and the Water Board is now looking for this with pre-1914 water rights.
- Upload digital copies of your most important records with your last Supplemental Statement (for pre-1914 water or riparian right) or Report Of Licensee (for post-1914 water right). Make things easy for the Water Board to find.
- The Water Board posts your Initial Statement Of Water Diversion And Use on their website, along with the following Supplemental Statements. You may have more important records in your hardcopy water rights folder at the the Water Board. You can either go to Sacramento to review your folder, or request that your folder be scanned by a third party that you make arrangements to pay.
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, 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:
- Weirs – Planning, Building, And Measuring Flows
- Update to “Weirs – Planning, Building, & Measuring Flows”
- Measure Any Flow With Watchman Flumes
- Submerged Orifices From a Turned-Over Weir Board
- McCrometer Mc Mag 3000 Saddle Flow Meter, 4″ to 12″ Pipelines; Sontek IQ For Larger
- How Do You Record Diversions? Water Level Loggers, Value Vs. All Component Costs – Update
- Level , Seal, and Replace for Accurate Flow Measurements
- Accurate, Economical Flume for LARGE Diversions
- Reasoning With Regulators, Benefitting From Bureaucrats
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.
Have you ever used an old-style complaint box? It made us feel better to write out a grievance, and then put it in the special box for that purpose. Often, there would be no response, so nobody knew if the complaint was read, or ignored, or some action taken but not communicated.
Now we air criticisms and accusations with much greater speed and efficiency. It’s called Email, generally directed to one or a few poeple, or the very public Twitter, FaceBook, Yelp, Foursquare, or 500 other online venues. This often isn’t better but it does get results! A thousand “Yeah me too”s, ten thousand “You’re an idiot”s, and a hundred thousand ugly troll comments. Have you successfully complained online and had a positive result? You’re in a small minority.
What if another water diverter on your ditch is taking all the water, or someone files a right for the water you have lawfully used for years, or the new neighbor bullies you and 4 others into not taking your water because he says he’ll file a lawsuit? Fortunately the Water Board has a way to complain about water rights. If you Google “Water Board Complaints”, the following page is usually the first result you’ll get:
Now what? You need to click the “CalEPAEnvironmental Complaint website” link, and then you’ll see the page to the right:
Click on the “Water” radio button, and click “Complaint Details at the bottom of the page.
This will take you to a series of web pages, shown here as the very long page shown on the left. The pages prompt for information, so enter all the details entered. What if you don’t know something? Put in the best information you have and move on to the next section.
What if you don’t want anyone to know who complained? You can file it anonymously. However, you can imagine that putting your John Henry on there would get a better response from the Water Board folks.
Once you do that, and hit “Submit”, you’re done. A web page will pop up with some information, and you’ll get a confirmation email:
Wonderful, your complaint is in the system! How long will it take for you to get a call or an email from someone at the Water Board? If your protest is about a large water right, in the Central Valley, and is well-documented, you may hear back in a month or two. What if your water right is small, you’re in Del Norte County, and you don’t have all the details? Well…it might be many months, and possibly never. Keep in mind, most Water Board staff have five times the workload than any of them can possibly do. Supervisors and staff have to pick and choose what they can work on that might result in an action, and which will have support from their supervisor or manager.
How can you best ensure that your complaint is addressed, and you get contacted by Water Board personnel? Document, document, document. Get right to the point of what you want the State employee to do. Speak bureaucrat. That’s a language similar to English, but which is much better understood by a state employee than standard English. I know, because I had to speak bureaucrat for 30 years! Now I speak bureaucrat to help solve diverters’ headaches to provide peace of mind, and help stay out of trouble.
Do you always have to have a purchased flow meter and data recorder for a pipeline? No you don’t. If you pump your flow, you can probably use a certified pump efficiency curve and your online 15-minute or hourly power records.
Call a pump shop that will produce a certified pump efficiency curve for you. The curve itself will cost $300 to $700, and there may be up to $1,000 in setup work to install gage access ports or create acoustic meter mounting points. The resultant curve will have a certified accuracy, in the range of +/- 2-3%, plus an accuracy range for changing pumping levels or variable pump flow rates. The ratings will be +/- 10% or better, and so satisfy the Water Board regulations.
Graphics credit: West Virginia University
The person doing the work can provide you a spreadsheet so you can paste in your power records and get hourly flow rates. The certification will be good for at least a couple of years, and when it is redone for you, will cost in the $300 to $700 range.
These costs look pretty good compared to a meter that will cost $1,500 to $4,000, and has to be recalibrated and maintained every couple of years. Another big benefit is that the pump curve lets your pump shop know what to recommend for you to get the most efficiency, and spend less money for your power!
Will this method work for groundwater as well as surface water pumps? Yes it will. SGMA requirements include well metering for a whole bunch of pumps, so this can be of use to you no matter how you pump your water.
Who should you call? See http://www.pumpefficiency.org/pump-testing/pump-testers/
One real expert is Bill Power:
Power Services, Inc.
6301 Beardon Lane
Modesto, CA 95357
Contact – Bill Power
Do you have a riparian water right? If your property borders or crosses a natural stream, then you probably do. If you are unsure, then read the best explanation I have seen, in plain language, in this short document:
What can destroy your riparian water right?
- A property split, if it results in a subdivided parcel that no longer borders the stream.
- A Superior Court Decree, while it does not take away riparian water rights, can restrict how much and when that riparian water right can be used during irrigation season.
- A stream can move through the process of erosion, so that a property no longer touches a stream. How much movement is enough? “It depends.” If it is gradual, and the diversion remains active, then the riparian water right is probably still secure. If a stream suddenly moves, so that it cuts through the property on the other side, and now there is a piece of that property between your parcel and the stream, this avulsion could very well remove a riparian water right. The water right would only be definitely lost through some action of the Water Board, state Superior Court, or federal court.
- A person or agency can take a piece of property along the stream. A person might try and succeed in getting part of your property through adverse possession. So, always pay your taxes, and notify anyone who leases or regularly accesses your property that you retain full ownership. An agency might take it to build a levee, or create a corridor of riparian habitat. In either case, your parcel would be severed from the stream.
How can you protect your riparian water right?
Know the law – print out Chuck’s explanation and read it every few years.
Put it in your property deed. How should that be done?
- The best way would be to get the help of an experienced water rights attorney who has written riparian water right provisions for property. There are very few of these attorneys and they can be hard to find.
- Put in plain English what you want to do. What might you include?
- State that the property has a riparian water right, name the stream, and describe the diversion point, place of use, and purpose of use. Include an Assessor Parcel Map of your parcel(s). If possible, include photographs.
- State that this riparian water right is retained even if the stream moves, gradually or suddenly, away from your parcel.
- State that it is your intent, and it will be the intent of you, your heirs, and any other purchaser, to retain the riparian water rights for any subdivided parcel, whether adjacent to the stream or now.
If you have a parcel that was severed in the past, but that parcel has used the
same diversion point continuously from the time before the subdivision, state in your deed that the intent at the time of the subdivision was to retain riparian water rights for your parcel, and that you have continued to divert under riparian right of claim, and that you do have a riparian water right.
What do you do if your water right has never been recorded with the State Water Resources Control Board? Or, if your property was split from a larger farm or ranch, and you are handling your smaller water right on your own? After all, every water right has to be filed with the Water Board, except most of those that are uniquely listed in Superior Court Decrees. This is true regardless of whether the water right is riparian or appropriative (pre- or post-1914).
You’ll need to file an Initial Statement. These are 4 pages unless cannabis is grown with the water right – that adds page 5. The forms are downloadable, fillable PDFs. If you have your information together and you are handy
with Google Earth, you might have your form done in a few hours. As with any property description, the better it can be explained, the easier it is to defend your water right if someone has a complaint.
With the Water Board, it’s better if you file before the Water Board comes looking for you. I have not seen folks get fines for filing even when water rights have been used for 50 years, or 100, or even since 1850 (or earlier). The Water Board folks are good to work with and they would much rather that people become compliant with the law, than write nasty letters and issue fines. That may not always be true as regulations get tougher, so get your filing done soon!
How is an Initial Statement different from filing a Water Right Application? An Initial Statement is filed if the water right is already in use. The Water Board is careful to point out that an Initial Statement is not the basis of, nor is it proof for a water right. It is just the way to report if diversion or storage has taken place for some time.
What if your storage or diversion began after 1914, since that is when the Water Board was created and when its authority began? Except for riparian rights, this is a gray area. I think the official answer from most folks at the Water Board is that appropriative water rights after 1914 are only established by a water right application, obtaining a Permit, and hopefully perfecting that Permit into a License.
In reality, there have been many Initial Statements filed for post-1914 water rights. It seems that these stand if there isn’t already a complaint against the filer, and if the water right is not in an already over-appropriated stream where there are obviously more water rights than water. The presence of chinook salmon or steelhead trout might put a post-1914 Initial Statement in question, too.
The problem with filing a Water Right Application is that you have no idea what the outcome may be. It might be denied, or have restrictive conditions imposed, and you won’t know until you have spent some thousands of dollars. Even if your water right is senior to some rights that were filed decades ago, the outcome is unknown. Also, the Water Board folks are extremely busy, and some applications are never completed.
So, many folks take the safe action to protect their water right and comply with the law: they file an Initial Statement. Better to do something not exactly right, or even wrong, than nothing at all.
Have you filed your Report Of Licensee, Progress Report of Permittee, or Report of Stockpond on the Water Board’s web site? 43% of folks have not, according to an email from the Water Board a few minutes ago:
“ANNUAL WATER USE REPORTING FOR 2018
This is a reminder notification for permits, licenses and registrations to file your 2018 Annual Water Diversion report which was due on April 1, 2019. To date, only 57% of appropriative rights have filed on time. …”
What to do? File right away! Call me at (530) 526-0134 (calls are free).
Remember the adage of “Do something wrong instead of nothing right“? It really applies here – folks who get their reports in this week are highly unlikely to see any fines. You can amend your report any time…people are still amending some 2008 reports (11 years later)!
Filing in May, maybe yes, maybe no fines. By July 1, if not a little sooner, the Water Board will have a list of everyone who is going to get fined no matter what, and it’s just a matter of fighting it or paying the lower settlement amount.
Is it not having your storage or flow data ready to file your worry? There are a lot of engineering companies, including mine, that can help you get that done quickly. Processing data can be a big pain, as it was for me over the last few weeks with 50 reports to file. So talk to someone who does it all the time and stop your headaches, get some peace of mind.
Whatever you do, file something now! Fix it later, get help with amendments, call an engineer for help with the data. Incomplete action now is a lot less expensive than $500/day, $15,000/month.
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!