You Can Be Your Own Qualified Individual For Diversions! AB 589 Passed October 4 – Training Coming Soon

Good news for folks who want to install, certify, measure and maintain their own devices!  AB 589 passed on October 4, and now any landowner, or their lessee or employee, can take the class and do all the required stuff to measure and record his own diversion flows / volumes.

I have not heard what the class dates might be, or whether it is online, and so on.  As soon as I do, I will sure put the word out there.  Meanwhile, let’s hope for another wetter-than-average winter – abundant water solves most of the demand issues.

 

Assembly Bill No. 589

CHAPTER 471

An act to add and repeal Section 1841.5 to, the Water Code, relating to water rights.

[ Approved by Governor  October 04, 2017. Filed with Secretary of State  October 04, 2017. ]

LEGISLATIVE COUNSEL’S DIGEST

AB 589, Bigelow. Water diversion: monitoring and reporting: University of California Cooperative Extension.

Existing law requires a person who diverts 10 acre-feet of water or more per year under a permit or license to install and maintain a device or employ a method capable of measuring the rate of direct diversion, rate of collection to storage, and rate of withdrawal or release from storage, as specified and with certain exceptions. Existing law requires the measurements to be made using the best available technologies and best professional practices using a device or methods satisfactory to the State Water Resources Control Board. Existing law requires a permittee or licensee to demonstrate to the board at 5-year intervals that a measuring device is functioning properly, as specified.

Existing law authorizes the board to adopt regulations requiring measurement and reporting of water diversion and use by persons including, but not limited to, those authorized to appropriate water under a permit, license, or registration for small irrigation use or livestock stockpond use, or a certification for livestock stockpond use.

This bill, until January 1, 2023, would require any diverter, as defined, who has completed an instructional course regarding the devices or measurement method administered by the University of California Cooperative Extension, including passage of a proficiency test before the completion of the course, to be considered a qualified individual when installing and maintaining devices or implementing methods of measurement that were taught in the course for the diverter’s diversion. The bill would require the University of California Cooperative Extension and the board to develop the curriculum of the course and the proficiency test.

Vote: majority   Appropriation: no   Fiscal Committee: yes   Local Program: no

 

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1.

Section 1841.5 is added to the Water Code, to read:

1841.5.

(a) For the purposes of a device installed pursuant to Section 1840 or 1841 or a method of measurement proposed and adopted pursuant to Section 934 or 935 of Title 23 of the California Code of Regulations, any diverter who has completed an instructional course regarding the devices or measurement method included in the course administered by the University of California Cooperative Extension, including passage of a proficiency test before the completion of the course, shall be considered a qualified individual when installing and maintaining devices or implementing methods of measurement that were taught in the course for the diverter’s diversion. The proficiency test shall seek to certify that the diverter has a satisfactory understanding of the principles of measurement and the use of a measurement method included in the course or the installation of a device. The University of California Cooperative Extension and the board shall develop the curriculum of the course and the proficiency test. The University of California Cooperative Extension and the board shall ensure the course curriculum and the proficiency test do not conflict with any state licensing acts.

(b) For purposes of this section, “diverter” means an individual authorized to divert water under a valid water right, a lessee of property that is subject to a water right who is acting as a representative of the water right holder, or a bona fide employee of the water right holder or lessee.

(c) This section shall remain in effect only until January 1, 2023, and as of that date is repealed, unless a later enacted statute that is enacted before January 1, 2023, deletes or extends that date.

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Alternative Compliance Plans – First Batch Is Online

Many people have asked about Alternative Compliance Plans filed with the Water Board.  Have any been approved?  Do I have any feedback regarding the ones I filed?  What will work, and what won’t?

In short, I have heard nothing from the Water Board, so I have no answers.  However, the Water Board has started posting them online.  See the screenshot below – I erased the water right holders’ names, you can see them and download them at the web page.

Ouch: All “High Hazard” Reservoirs Under DSOD Require Emergency Action Plans

As if SB 88 wasn’t enough, now farmers and ranchers with reservoirs under jurisdiction of the Division of Safety of Dams (DSOD), and who somehow got a “high” hazard classification, must now have an Emergency Action Plan.  Why, or rather, why now?  The biggest immediate reason is the failure of Oroville Dam Spillway, run by the same Department of Water Resources of which DSOD is a part.  Some legislators with good intent are using an unjust method of making an entire group do it, all at once, regardless of impact.  Other, more cynical folks want to get the spotlight off California / DWR / State Water Contractors.

These reservoirs have been actively inspected by good DSOD inspectors, who require maintenance, repairs, and even replacements as needed.  Owners have acted responsibly, or else they didn’t get to fill their reservoirs again…unlike DWR.

Today there are only 16 months to comply.  Are there even enough engineers to get this all done in time?  This will require engineering in the several thousands of dollars, or more likely tens of thousands, for each reservoir.  Is there any funding available for farms and ranches with minimal cash flow?

What is your best plan of action?

  • Appeal to your state legislator and state senator.  Ask for more time to comply, and a clear avenue to apply for an exemption.
  • Ask Bill Pennington or Russell Bowlus, how did your reservoir get a “high” hazard classification?  Request an answer in writing.
  • Get a cost estimate from an engineer.  This will likely support your appeal for more time to comply.
  • Ask the Farm Bureau, California Cattlemen’s Association, and California Cattlewomen for help.
  • Seek the help of the Pacific Legal Foundation, since there are likely to be lawsuits, if there is not one already.
  • Ask, how can you do this work yourself?  It is not magic, although it likely has to be done by an engineer.  Has someone made a Google Earth or other application with which you can do your own map?
  • Make some progress, even if you cannot afford the time and/or money to get it all done.  Some is better than none when the state comes around.

As I find out more, I will sure post the information here.  More to come on this.

Water Board Letters, Reducing Or Denying Additional Time / Alt. Comply Plans Being Reviewed

Many diverters or pond owners are getting letters like the one shown below, reducing or denying a Request For Additional Time.  The letter looks threatening, because that is how letters from regulatory agencies (bureaucracies) have to look.  Keep in mind that the Water Board won’t start issuing fines the day after the deadline.  Usually what happens next is a 30-day letter to cease and desist, or correct a deficiency, or face fines of $500 per day.

What should you do?

On August 10, 2017, I sent Kathy an email asking about Alternative Compliance Plans for diversions in closed basins:

“Hi Kathy,

I have a client whose water rights are all in one closed basin.  This owner owns all the lands where the water flows, either naturally, or when diverted from streams.  The end effect is, whether the diverter actually diverts or not, all the water ends up only on his land.

There are reservoirs involved.  The water rights could be in the range of 5,000 to 10,000 AF.

The argument is, since nobody else is or could be affected, there is no benefit to the State of measuring this water.

What are your thoughts on Alternative Compliance Plan for every water right on the ranch?  Would the Water Board put this on the bottom of the pile for places to look at, or toward the top?

Thank you,

Shawn”

Kathy’s answer was:

“Hi Shawn –

The measurement regulation does not have an exception from measurement based on location of the water source.  Any alternative compliance plan would need to identify the proposed measurement frequency and proposed measurement methodology.  It would also need to include an explanation and substantiating documentation of alternative compliance.  Absent substantiation of the specific basis for reduced performance standards, the plan must state how compliance with the measurement regulation will be achieved.  You ask for my thoughts on submitting an alternative compliance plan for each of the ranch water rights.  You should only submit plans which satisfy the regulatory standards. 

You ask whether the Division would put this on the bottom of the pile of items to look at.  Jeff and I have been actively looking at the alternative compliance plans submitted thus far.  We coordinate our actions with Lily.  We are actively evaluating the plans because we feel an obligation to let people know how they have done with their proposals. 

Kathy Mrowka”

Watchman Flumes, Tough And Accurate

This summer has been busy!  Posts here have fallen behind as I have been keeping up with clients’ needs for SB 88 compliance.

I am taking just a moment to mention the new Watchman Flumes.  A new manufacturer is making these heavy-duty flumes tough enough that cattle could step on one or rub against it and probably not bend it.

10-gauge steel is used, slightly thicker than 1/8″.  The walls and ramps are heavily reinforced with 1/8″ angle-iron and high-strength Grade 8 bolts to minimize flexing and bending.  Back-filling these flumes will not bend the walls or wingwalls, even when using concrete for fill.

Watchman Flumes are delivered disassembled with all the fasteners.  At this time the manufacturer is only selling through Rights To Water Engineering, but that may change in the future.

Sizes range from 2 to 60 cubic feet per second.  The flumes are accurate to better than +/- 5%, which is well within the Water Board’s requirement of +/- 10% for new measurement devices.

These are priced competitively with pre-manufactured flumes for similar flows, too.  That makes higher durability and longer life at the same price as flumes made from 1/16″ sheet metal.

Expect to see more of these going in at diversions around Northern and Central California.  I will post photos of installations as I get permission from landowners.

Unique Weir Installation

I am glad to be getting measuring devices and data loggers installed – it is enjoyable work and diverters are getting peace of mind.  All of my work is confidential so clients’ names won’t be mentioned without permission.  That being said, a few projects can be discussed here.

This is a unique weir installation – it is doing two things at once.  Two 4′ wide weirs are side by side, set on a leveled, compacted base of 3/4″ minus road base.

First, it has a splitter built in as part of the weir – see the low wall behind me.  Two water rights are precisely split inside the weir itself so each user gets the correct amount.

Second, it is a double weir.  The ditch has low banks, but around 10 cfs needs to be accurately measured.  Weirs ideally pass a maximum of 1 cfs per foot of width, so this exceeds that by 25%, while still keeping the water inside the ditch.  So, why use weirs instead of a flume, which can pass much more flow per foot of width?  Weirs are better understood in this area, the ditch has adequate width, and it makes splitting the flows easier.

A plate metal wall splits the 2 weirs into 3.  Board slots were added with angle iron…you can guess from the photo that the iron lengths had to be cut down a bit for a 1-board, 2″ x 12″ weir.

 

 

Board slots had to be bolted on both sides of the plate steel.  My friend Bob, owner of B & J Welding & Machine, Inc. in Anderson, cut, welded and drilled the plate steel wall.

A water level logger sits at the back of the shared weir walls, and records hourly water levels 24 x 7 x 365.  Vandalism is a concern so the logger is locked up, and only the owner and I can get in.

1/4″ thick plate metal wingwalls upstream and downstream protect against flow working its way around the sides.  The wingwalls add stability, keeping the weirs from tipping sideways or tilting up- or downstream.

The final result is s solid, long-lasting installation that meets the requirements of SB 88!

Some Notes From May 24 RCD / CFB SB 88 Workshop In Red Bluff

Yesterday, Thursday May 24, The Resource Conservation District of Tehama County and the Tehama County Farm Bureau held an SB 88 workshop, explaining requirements and methods for measuring and reporting on stockponds and surface water diversions.  Kirk Wilbur of California Cattlemen gave the best explanation I have ever seen on the regulations, what they mean, and how to comply.

I discussed measurement devices and water level loggers, installations, and some Board forms.  Here are some really rough notes that I will edit and add to later:

Types of water flow measurement devices

  • Weir – water level – Showed model of weir with boards
    • With Stilling Well for water level logger
  • Orifice – upstream AND downstream water level – Showed model of weir with boards, configured as orifice
  • Flume – water level – Showed 2 sheet-metal models, one for 0.9 cfs, one for 1.8 cfs
  • Pipe Meter (magnetic or propeller) – velocity
  • Acoustic Doppler – velocity
  • Rated Section, earth or lined – elevation vs. flow
  • Staff gage – elevation
  • Pressure transducer, ALL BATTERY POWERED – depth – Showed 2 types: Hobo and PMC data logger

Typical Installations

  • Weir – poured, pre-fab, conversion of gate, T-post and boards for temporary
    • Weir in ditch
    • Splitter weir
  • Orifice – can use weir box, boards, steel plate
  • Flume – poured, pre-fab, WinFlume built in concrete lined ditch
  • Pipe Meter (magnetic or propeller) – 4” – 12” bolt on existing pipe, 12” and larger, replace section of pipe
  • Acoustic Doppler
    • ditch – Sontek IQ on bottom or Side Looker at side
    • pipe – Sontek IQ, Panametric, other
  • Rated Section, earth or lined – elevation vs. flow, requires engineer/hydrologist to measure each flow and develop a rating table and curve
  • Staff gage – elevation only, goes WITH a measurement device
  • Pressure transducer – depth only, Volume WITH area-capacity / elevation storage curve, or WITH measurement device.

Strategies for Success with the Water Board

  • CALL them, get to know Kathy Mrowka, head of the Enforcement Program, or Jeff Yeazell, the public contact for non-Delta issues.
  • EMAIL them about the compliance steps you are taking.
  • INVITE THEM to your place. Showing a green staffer how a ranch or farm really works gives them context.
  • CHAIN OF COMMAND – this always works in bureaucracies! If you make it a pain for the boss, you are more likely to be heard or get leniency.
  • NEGOTIATE – laws are laws, regulations are regulations, and there are always exceptions, waivers, and so on.
  • DON’T DIG IN YOUR HEELS – Water Board folks are human and they are likely to direct their attention to someone who they are mad at.

Alternative Compliance – Water Board survey on web page

  • Not approved, denied, or evaluated
  • Will be public and can be reviewed, questioned, or criticized by anyone
  • May be “audited”, as Kathy Mrowka just told me a couple of weeks ago.
  • Estimate pond evaporation – CIMIS
  • No guarantee an ACP will not be protested
  • Varying risk of protest based on situation – higher risk factors
    • Does the stream have salmon or trout?
    • Are there other threatened, or endangered species?
    • Is the diversion or pond large?
    • Is access easy?
    • Is there a definite diversion channel?

Alternative Compliance Plans – Reasons I have used:

  • PART OF A YEAR, for a diversion or pond, if a pressure transducer needs to be removed to keep it from freezing.
  • A diversion that is not going to be used for up to 4 years, if it is blocked off with an iron plate or concrete plug.
  • Hydro plant, using power converted to flow
  • Ponds that have no gated outlets, and are not filled or drained by human action. These can only spill over uncontrolled spillway.
  • Ponds that have been in place for decades. They are part of the landscape, necessary for cattle and other ranching, and criticial for wildlife, waterfowl, and perhaps fish.
  • Ponds that are strictly for dry-land farming. If there are no diversions on a ranch, the ponds are all there is.
  • Ponds that have a low total amount of storage for the size of a ranch. For example, 6 ponds totaling 110 acre-feet for a 2,500-acre ranch.  The ponds are only used for stock and/or wildlife water and no irrigation.
  • A pond larger than 100 acre-feet, which has a creek running through it that never dries, and no water is diverted from the pond, so it is always full. Collecting data would provide zero new information – zero benefit, so any measurement cost is infinite relative to the cost.

Request For Additional Time

  • Up to 24 months
  • Need good reasons
  • Easy to file

Request For Additional Time – Reasons I have used:

  • The Water Board did not get the word out well, especially if my client never got a letter from the Board.
  • A parent who ran the ranch passed away.
  • 2016 was an extremely wet winter and spring, making access difficult until June, July, or later.
  • By mid-season, farmers and ranchers are in the middle of long days, leaving no time to put in a measurement device.
  • My client is investigating water efficiency, possibly an NRCS EQIP grant, and this would change the plan for a measurement device.