How Do I Comply With Water Board Regulations? Part 3

In Part 2, How Do I Comply With Water Board Regulations? Part 2, we considered the question:  Who has to have a certified, accurate device by January 1, 2017? How often is it monitored?  The answer is, those who divert 1,000 acre-feet (AF) per year or more, and it has to be monitored hourly.  Shawn_pointing_with_ruleWhat size diversion is this, really?  An irrigation diversion of 1,000 AF over 6 months, with flows starting at 100% of the water right, declining to 50% of the right by the end of the season (month 6) would calculate out to a water right of 3.68 cubic feet per second (cfs), or about 3.7 to 4.0 cfs (cfs).  Depending on where you are, that irrigates somewhere between 80 and 400 acres of hay or pasture.

In this post, I’ll answer 2 questions:

  1. What if your water right is smaller than 3.7 cfs, diverting 100 AF to 1,000 AF per year?
  2. A BIG question right now: What is “alternative compliance”, and how might it be done to meet the Water Board’s regulations?

Shawn_pointing_at_orificeTo answer the first question, the next category down is 100 AF to 1,000 AF per year.  Using the example of a 6-month irrigation season, with a diversion that starts at 100% of the water right and gradually declines to 50%, the water right we’re talking about is about 0.37 to 3.7 contracted_weircfs.  This category does not have to comply as quickly – the deadline is July 1, 2017, or nearly a year from now.  The measurement frequency is daily, which is possible to be done by a diligent person, if not not recorded automatically.  For a sense of how much water this is, depending on where you are, what the soils are like, and how efficient the diversion is, the acreage of hay or pasture irrigated ranges from about 8 to 370 acres.

What kind of measurement devices would meet the regulations?  The same types that we discussed in Part 2, but ranging down to smaller sizes:

  • weirs as little as 0.5′ (0.5 feet, or 6″) wide, or wider with boards cut to make contracted weirs
  • free-flowing orifices with holes down to 0.16 x 0.16′ (2″ x 2″) square and a piece of steel plate to adjust it smaller
  • submerged orifices down to 0.25′ x 0.25′ (3″ x 3″) with an adjustment plate.
  • small flumes and meters

The photos above show smaller-sized devices than the 4′ weirs shown in earlier posts.

The second, and these days much BIGGER question, what about alternative compliance?  The Water Board requires submission of alternative compliance plans on a form that is not yet available.  If it were my diversion, I would not worry about tWaterBoard_Meas_AlterComp_Para - Editedhat; I would put together my plan and send it in.  The old rule applies that if you are not sure who to send it to, send it to several managers and maybe a Deputy Director.  Emailing documents is cheaper; most computers will let you print to PDFs that can be emailed.  Your submittal probably will not be accepted this way but the point is, the Water Board cannot say that you have not attempted to comply.  Not complying at all can be very expensive; “Do something wrong, instead of nothing at all.”

 

SOU_alternative_methods - EditedThis screenshot is from an OLD, no longer valid Statement Of Use form, but it
gives some ideas of what options for alternative compliance the Water Board has in mind.

What has to be in your alternative compliance plan?  From the Water Board’s ADOPTED TEXT OF EMERGENCY REGULATION, the text gives 12 parts that must be in the plan (below).  The plan may be rejected – having a plan (instead of a standard, certified measurement device) is no guarantee that the Board will accept it.  In summary, the plan must detail contacts for all people on a ditch, Assessor Parcel Numbers, the water right(s), priority(ies), use(s), diversion(s), ditch(es) and/or pipe(s), measurement frequency and methods, dates for milestones and completion, permits required, financing plan, and map(s) showing the plan area including all physical features and place of use…and all of this must be signed by all water right holders on the ditch (the emphasized text in the bullet points is mine):

“…………  §935 Alternative Compliance for a Measuring Device or Measurement Method Requirement.

(a) Alternative Compliance – Generally. In circumstances where strict compliance with sections 933 or 934 of this title is not feasible, would be unreasonably expensive, would unreasonably affect public trust uses, or would result in the waste or unreasonable use of water, a diverter may submit an alternative compliance plan.

(b) Minimum Standards – an alternative compliance plan under subdivision (a) shall meet the following minimum standards:

(1) The plan shall include the following information:

(A) The name and contact information for all diverters covered by the plan;
(B) The name and contact information for the person designated to represent all diverters covered by the plan in matters before the board;
(C) Identification of each individual water right type and priority covered by the plan;
(D) A detailed description of the area served by the plan, including all points of diversion whether used or not used, all methods of diversion, any conveyance systems, all beneficial uses of water, and all acreage served;
(E) The assessor’s parcel numbers and ownership within the area covered by the plan;
(F) Identification of the proposed measurement frequency;
(G) Identification of the proposed measurement methodology;
(H) Topographic map(s) or aerial photograph(s) of the area covered by the plan that show the separate places of use authorized to be served by claimed water rights covered by the plan and showing the acreage served;
(I) An implementation schedule, including date-specific, objective milestones of plan implementation from date of filing through final implementation, including the estimated milestones for acquiring permits required for plan implementation and the estimated milestones for compliance with the California Environmental Quality Act, if required;
(J) Budget for implementation of the plan and the source(s) of financing for the plan;
(K) A list of any permits required for plan implementation, the agencies that will issue the permits, and expected dates for issuance;
(L)
An affirmation, signed by all diverters covered by the plan, that the plan will be implemented in accordance with the schedule contained therein and that all claimed water rights covered by the plan will not be exercised outside the scope of the plan  …………”

New_Weir

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Water Board Legal Actions, Part 1

The Water Board takes legal actions against individuals, associations, companies, etc. (parties), regarding diversions, surface and groundwater pollution, mis-reporting or not reporting diversions, noncompliance with permits and licenses, underground storage tanks, and more.  Prior to assessing fines, Water Board managers, attorneys, or staff make phone calls to to the suspected parties, and they may make field visits to confirm allegations or gather more information.  Sometimes that’s enough – a phone call or visit may move a person to change practices, or take corrective action, and comply with the law.swrcb_complaints_program

The Water Board will follow up their calls or visits with a letter summarizing the facts, allegations, and actions taken by parties.  That may close out a complaint (if that is how the actions came to the Board’s attention) or may complete an investigation, with the provision that the promised corrective action will be done.CDO page

Their letters may seek information about alleged infractions, or may be cease and desist orders, or may convey the results of investigations and hearings including what fines or other penalties are assessed.

 

CWC page

The Water Board relies on the California Water Code, case law from lawsuits in the State Superior Courts or other courts, and those resolutions, orders, and decisions made by the Board itself, which it designates as “precedential”.  That means the Board looks back at these documents to help make decisions in the future.SWRCB ROD prec

In many cases the Board does not act alone, since it is just one of many California state and federal agencies.  It may combine its efforts with the California Department of Fish and Wildlife (CDFW, was Fish and Game), the U.S. Fish and Wildlife Service (USFWS), the State Attorney General (AG), the U.S. Army Corps of Engineers (USACE)…the list could include many more.  How does this cooperation with other agencies work?

The Water Board has authority over many water rights and uses of water, but other agencies have the primary authority over other uses of water.  For example, CDFW has authority over the California Fish and Game Code, which gives guidance on how much water must be left in streams by diverters.  Solid scientific studies must be made to prove how much water is needed.  In place (or pending the outcome) of these expensive, long-term studies, CDFW determines and/or negotiates flow amounts, and the Water Board uses their power to convince diverters to comply.  This works because CDFW could not prove the exact need in the near future, and CDFW is very reluctant to go to court to sue diverters.  However, the Water Board can act on the “best available information” or “reasonable estimates” to determine how much water must be left…and the Water Board can assess fines by itself without having to go to the Superior Court.  This makes for some very interesting stories…and those will be taken up in a later post.wbwa

California Water Right Holders Now Required To Have Measuring Devices

Water laws are changing at lightning speed because California is in a historic drought. Groundwater law was passed requiring local agencies to be formed to manage groundwater. In 2012, I thought that would take 20 years to happen. The drought accelerated it to 2 years.

Surface water laws were passed in 2009, greatly increasing penalties for not reporting diversions, for misreporting, for overdiverting – in short, for evading, lying, and stealing. Suddenly tens of thousands of diverters who had been ignoring the State Water Resources Control Board started to worry. How do I report, am I in hot water if the Board sends me a letter, how do I figure out what my water right is?

The California Water Code Section 5100-5107 has the new, more restrictive part of the Water Code.

For example CWC 5103 (e) (B) says:

” (i) On and after July 1, 2016, the measurement of a diversion of 10 acre-feet or more per year shall comply with regulations adopted by the board pursuant to Article 3 (commencing with Section 1840) of Chapter 12 of Part 2. “

That doesn’t sound too bad. But what does CWC 1840 say?

” 1840 (a) (1) Except as provided in subdivision (b), a person who, on or after January 1, 2016, diverts 10 acre-feet of water per year or more under a permit or license shall 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. The measurements shall be made using the best available technologies and best professional practices, as defined in Section 5100, using a device or methods satisfactory to the board, as follows:
(A) A device shall be capable of continuous monitoring of the rate and quantity of water diverted and shall be properly maintained. The permittee or licensee shall provide the board with evidence that the device has been installed with the first report submitted after installation of the device. The permittee or licensee shall provide the board with evidence demonstrating that the device is functioning properly as part of the reports submitted at five-year intervals after the report documenting installation of the device, or upon request of the board.
(B) In developing regulations pursuant to Section 1841, the board shall consider devices and methods that provide accurate measurement of the total amount diverted and the rate of diversion. The board shall consider devices and methods that provide accurate measurements within an acceptable range of error, including the following:
(i) Electricity records dedicated to a pump and recent pump test.
(ii) Staff gage calibrated with an acceptable streamflow rating curve.
(iii) Staff gage calibrated for a flume or weir.
(iv) Staff gage calibrated with an acceptable storage capacity curve.
(v) Pressure transducer and acceptable storage capacity curve.
(2) The permittee or licensee shall maintain a record of all diversion monitoring that includes the date, time, and diversion rate at time intervals of one hour or less, and the total amount of water diverted. These records shall be included with reports submitted under the permit or license, as required under subdivision (c), or upon request of the board.
(b) (1) The board may modify the requirements of subdivision (a) upon finding either of the following:
(A) That strict compliance is infeasible, is unreasonably expensive, would unreasonably affect public trust uses, or would result in the waste or unreasonable use of water.
(B) That the need for monitoring and reporting is adequately addressed by other conditions of the permit or license.
(2) The board may increase the 10-acre-foot reporting threshold of subdivision (a) in a watershed or subwatershed, after considering the diversion reporting threshold in relation to quantity of water within the watershed or subwatershed. The board may increase the 10-acre-foot reporting threshold to 25 acre-feet or above if it finds that the benefits of the additional information within the watershed or subwatershed are substantially outweighed by the cost of installing measuring devices or employing methods for measurement for diversions at the 10-acre-foot threshold.
(c) At least annually, a person who diverts water under a registration, permit, or license shall report to the board the following information:
(1) The quantity of water diverted by month.
(2) The maximum rate of diversion by months in the preceding calendar year.
(3) The information required by subdivision (a), if applicable.
(4) The amount of water used, if any, for cannabis cultivation.
(d) Compliance with the applicable requirements of this section is a condition of every registration, permit, or license.
(Amended by Stats. 2016, Ch. 32, Sec. 98. Effective June 27, 2016.) “

Now THAT has a punch. There are exceptions in following paragraphs, but the Board now wants “continuous monitoring”, meaning one of the older, mechanical Stevens Recorders and the like, or newer, electronic pressure transducers. Now we are talking $500 and up just for recording data, in addition to a measurement weir, flume, or orifice.

And the diverter has to provide “evidence”. How is that done? Is a photo good enough? A video? A drawing? A statement by the local ditch tender, the Resource Conservation District, a technician, or an engineer?

Of course, the Board has higher priorities with larger diversions, and streams with anadromous (chinook and steelhead) fisheries. Still, it is an open question about when the Board will get to your or my diversion.

Complaints from neighbors with a grudge tend to elevate problems that the Board considers. But, water is nothing to argue over, is it? Or have grudges?

More on this later. Good night to all.

All Water Rights, California

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