The Killing of Alder Creek

by Tim Stelloh, December 29, 2009

diversions map

Before we get to the bureaucratic buck-passing and the labrythine litigation, before we get to the ongoing drama that is California's water crisis, you should meet Bryan Pearn. He's 15 and he's from Willits. He's lanky, soft-spoken and he reads technical science manuals the way the rest of us read pulp paperbacks.

Pearn's story begins a couple of years ago, when he entered his local science fair at Willits Charter School with a project that looked at why a little creek near his house began drying up during the summers. With the help of Scott Harris, a biologist with the department of Fish and Game, Pearn procured the expertise—and equipment—to undertake the task of figuring out what happened.

So Pearn began walking Alder Creek, which snakes through a rural one-acre watershed just outside Willits—a watershed rich with Douglas Fir, pine, oak and madrone. Not long ago, it was a creek that was home to Steelhead trout; in the next watershed down, there was another threatened species: Chinook salmon.

After several months of collecting data with a GPS, camera and flow meter, he concluded that such a large number of water diversions—he counted 21 pipes collecting water from Alder Creek—in such a small watershed was one of the key reasons the creek had dried up. (He also found loads of waste, a dam and a poorly built road that had flooded the stream with sediment, he said.)

Barrels

Garbage in Alder Creek

Pearn's project was a success. It won locally—at the county science fair in Ukiah—and went on to the state fair in Los Angeles. This wasn't a new experience for Pearn. He'd been to the state finals twice before for a project on the effect of the earth's gravitational pull on plant growth. But during those competitions he didn't even get an honorable mention.

This time he won, taking top honors in his section—environmental science.

“I was shocked,” said Pearn, who speaks with the confident, well-adjusted manner of someone twice his age. “There were so many good projects, and that I got first place was jaw dropping.” (One of those other projects, he said, was done by a student who'd developed their own mathematics.)

The win lead him to Washington DC—to congressman Mike Thompson's office. Since Alder Creek is partly on land owned by the Bureau of Land Management, Thompson set up a presentation—to be made by Pearn—with BLM officials. “They wanted to see proof of the diversions. So I pulled out all my maps and told them what was going on. I told them every little detail, and demanded that we needed some type of help,” Pearn said. “So they ended up reasoning with us and sending somebody out there so they could see for themselves.”

Pearn learned that of the 21 diversions he'd documented, the state only knew about one of them. The rest were illegal. So before making the trip to DC and presenting his findings to BLM, Pearn and his mother began contacting other agencies that, he thought, might have the authority to do something: Fish and Game, because they deal with habitat conservation and fisheries; National Marine Fisheries, for endangered species; the state Water Resources Control Board, which issues water rights and deals with water quality.

From every agency—including BLM—the answer was the same, Pearn said: “They pretty much said sorry, we can't help you.”

So begins the complex task of untangling California's jargon-riddled environmental bureaucracy—and of figuring out who's responsibile for the killing of Alder Creek.

A BLM spokesman said the feds don't regulate “stream flow”—or the amount of water moving through a stream. That, he said, is the state's problem, so BLM would have nothing to do with getting illegal diversions out of Alder Creek. At National Marine Fisheries, Dan Torquemada, an enforcement officer, said he couldn't do anything because there was no “confirmed presence” of endangered species in the creek at the time they investigated. Plus, he added, problems in Alder Creek should be handled by other agencies with more “prescriptive” regulations.

In other words, said Harris, the Fish and Game biologist, if marine fisheries doesn't have a dead fish in hand when they look at your barren creek bed, there's nothing they can do—even if that creek had, in its recent, undead past, been a known habitat of a threatened species like, say, Steelhead.

“This is a cart before the horse thing,” Harris said. “It's the dumbest thing I've ever come across.”

Harris said he made his concerns about Alder Creek known to Fish and Game. “But I can't take it further than that,” he said. “I don't know what else to do through my job.”

Rick Macedo, an environmental scientist with Fish and Game, described Alder Creek as a complicated enforcement proposition. The agency is stretched thin, with five vacated positions in its local enforcement division; with what resources they have, they've sent three notices to property owners with non-permitted pipes. So far, Macedo said he's heard back from two: one claimed to have a water right—“our response is to follow up and educate them”—while the other, Wayne and Joyce Waters, are dealing more directly with BLM, as they had criminal charges filed against them by the feds earlier this year. More on that later.

In an ironic twist that shows just how pervasive illegal diversions are—and just how dysfunctional the regulatory system is—a Fish and Game warden who lives in the next watershed down from Alder Creek even has a non-permitted diversion, officials said. (Macedo said he had “no knowledge” of those illegal pipes.)

Why hasn't Fish and Game sent out more notices? Statute of limitations, they say. If, for instance, a pipe is older than one or two years, Fish and Game can't issue a citation, Macedo said—and in Alder Creek, many of those illegal water suckers are well into their golden years. In which case the issue is flung back into the bureaucratic shuffle: The water board doesn't have to abide by the same limits, so they should take the lead, Macedo said.

When I asked the board about Pearn and problems with Alder Creek, a spokesperson supplied the following non-response:

“The State Water Resources Control Board (State Water Board) has the authority pursuant to California water law (including the State Constitution, Water Code, Title 23 of the California Code of Regulations, case law, etc.) to restrict unauthorized diversions and diversions that are harmful to public trust resources. The State Water Board has an affirmative duty to protect the public trust where feasible and where evidence is provided.”

After Pearn was told that all that evidence he'd collected—the photos, the GPS coordinates, the map, the stream flow data—wasn't good enough, he decided to do something big. He decided to go to Sacramento.

***

THE WATER RIGHTS permitting process is a kind of bureaucratic purgatory. It requires a lot of time, a lot of patience and a lot of money for the environmental review process. To make it even more painful, there's a bottleneck because of a personnel shortage, so it can take five to six years to get a permit—“and that's if everything's greased,” said Stacy Li, a former National Marine Fisheries biologist who's helping Pearn with research on Alder Creek. “How can people sit around waiting for five or six years?”

So what do people do? They do what they've done in Alder Creek—and stick their pipes in the water anyway. In the Russian River watershed alone, there are 425 pending water rights applications, Li says; there are also 421 existing—but unauthorized—projects taking water from the river. And all those illegal water-suckers exist within a system that's completely out of whack: Li says that based on board data, a colleague figured out that the agency has given away more than four times the water that California actually has. (The board did not respond to questions about Li's analysis.)

Alder Creek, of course, is a fraction of the size of Russian River. Yet many of those diverting its water illegally might not even need to endure the permitting process: If they're eligible for “riparian rights”—that is, if they live adjacent to the creek—they'd simply need an agreement with Fish and Game that lets the agency know what they're doing. “We have a chance to protect the resources if everyone's playing the game,” Harris says.

At the moment, no one's playing. And it's not clear if anyone will: Many of the diversions in Alder Creek and nearby watersheds—like Mendocino County in general—are for pot grows, Harris said.

Even so, Pearn's project wasn't the first time regulators had heard about the problems in Alder Creek.

A civil lawsuit from 2006 filed by Larry White, a neighbor of Bryan Pearn, against Wayne and Joyce Waters—the recipients of the Fish and Game letter—reads like a throwback to pre-environmental regulation-era California: White alleged that the Waters had, without permission, felled old-growth redwoods and built roads on his Canyon Road property—roads that extended illegally onto land owned by BLM, roads that had been built so shoddily they'd damaged Alder Creek. And a hydrologist hired by White alleged that the Waters were taking—and storing—a stunning amount of water: more than 100,000 gallons a day—an amount that exceeded a water agreement they have with BLM by 12 times.

At the same time, White—who's also the ex-boyfriend of Pearn's mother, Tamara—filed a complaint with the water board that made the same allegations. The agency sent an investigator who found a few minor problems, but wrote that there was no evidence that the Waters were damaging “valuable public trust resources” in Alder Creek. As for the lawsuit—which was essentially a property dispute over a fenceline—the Waters won. They denied White's claims about damaging the creek, and their attorney said White needed to complain to the regulators—not the courts. The attorney accused White of wanting to “take over” the Waters' home and “dispossess” them.

Not long after, a different investigator from the water board, Scott Gergus, visited their Canyon Road property and found a damaged, neglected landscape: The Waters, he wrote in a 2008 memo, had illegally tapped six of seven springs on BLM land. They'd illegally built a road and buried a pipe beneath it. And despite owning Waters Construction—and being a contractor licensed in culvert construction—Wayne Waters had built four dysfunctional culverts that had caused erosion and threatened to flood Alder creek with sediment.

Then came the kicker.  In a scene that could have been plucked from Close Encounters in Mendocino National Forest, a BLM agent told Gergus that during an inspection along Alder Creek someone shot at him from the Waters' property. During a subsequent investigation—in early September 2008—federal agents seized 120 pounds of processed marijuana from Wayne Waters and his son, who lives nearby. They'd been growing all that pot with water diverted from BLM land, the agent, Kynan Barrios, told Gergus. (Larry White also had marijuana seized from his property by sheriff's deputies last summer; he pleaded not guilty to cultivation charges.)

Wayne Waters called Barrios's report an “absolute falsehood.” “If I fired shots at him I guess they would have arrested me,” he said. “There's not any truth in his report.”

The only thing “dysfunctional” about Alder Creek, he added, are the reports by Gergus, Pearn and other agency officials. “There aren't any problems here. All the diversions and everything—they aren't true,” he said. “There's a lot of misinformation out there.”

“I'd be careful about what you write,” he said. “Most of it is not true.”

The complaint filed by Larry White way back in 2006 was finally dismissed last month. In the board's decision, Charles Rich, from the agency's complaints unit, wrote that the springs weren't illegal—as Gergus had said—and that the Waters had installed a new culvert and flow meters. Not only did the board dismiss the complaint, Rich wrote that it “appeared” the Waters had riparian rights for their diversion on BLM land. These are the water rights, you'll recall, reserved for people who own land next to the water they're taking. The problem, of course, is that the Waters diversion points aren't on their land, according to the water board's own documents. They're on federal land.

Confused? You're not alone.

“There's a very narrow definition of who can claim riparian water,” said Stacy Li, the biologist. “From my perspective, the water board has changed the rules to the extent that they aren't managing water. It's almost like they've caused the entire concept of water rights to go out the window.”

It's unclear what the decision means—though it might have something to do with the Waters once sharing an address with Larry White's property, which is adjacent to Alder creek, Waters said. In an e-mail response, a water board spokesperson said the Waters “appeared to have a valid riparian claim based on the physical facts of the source and property.”

If the decision stands, it would be another feather in the Waters' cap. The original agreement with BLM that allows the family their water diversion came only after Joyce Waters, then Joyce Anderson, was caught “trespassing”—that is, taking water without permission—from BLM land in 1978, according to an agency memo.

BLM forgot about the trespass for the next decade. In 1994, when the memo was written, Joyce—who by then had married Wayne—had finally applied for a right-of-way agreement with BLM. (Joyce Waters explained to a BLM biologist at the time that the pipeline from federal land had been in place since the 1960s, and that a water right had been grandfathered in.)

At the bottom of the memo, in a section titled “proposed mitigations,” a forester scribbled a prescient note: “Hope some water will be left in the streams!?”
***

AFTER HEARING "SORRY, we can't help you” enough times, Bryan Pearn moved on to plan B. So on a July day last year, he went to a workshop in Sacramento held by the water board; it was there that he met Stacy Li, one of the few biologists in California who can perform an In-Stream Flow Incremental Methodology, or IFIM, a very technical, very expensive—$25,000 at least, Li says—water analysis that Pearn thinks might force the hand of the agencies that regulate California's water.

Why? Because this is the one type of analysis he thinks they won't be able to challenge. In other words, even though Pearn had taken all those pictures, collected all those GPS coordinates and all that stream flow data—even though he'd won a state science fair and had a US congressman vouch for him—an IFIM is what might get the regulators to do something about Alder Creek.

And Stacy Li will be the one to help him do it.

It was an odd sight in Sacramento, Li says—a conference room jammed with high-level regulatory officials talking about stuff that high level regulatory officials talk about. And then there's this kid Pearn.

“They apparently knew who he was and at least gave him acknowledgment when he came into this conference room. And I was just sitting there saying, 'who is this kid?'” Li recalled. “After we left, suddenly there's [Bryan] standing in my way saying, 'can you help me please?' And I said, 'what are you doing, and what do you want?' He said, 'I don't know how to do an IFIM—can you teach me how?' Well, why do you need an IFIM? Because these guys asked me for my project—they won't pay any attention to me until one of these is done.'”

Bryan Pearn and Stacy Li

Bryan Pearn and Stacy Li

Li has a methodical, professorial demeanor. He spent nearly three decades working as a fisheries biologist—20 of which were as a private consultant. In addition to being able to say he's one of the few scientists in California who can perform an IFIM, he also got to watch water rights history: he testified as an expert witness in the now famous battle over Mono Lake, which the Los Angeles Department of Water and Power nearly decimated in its efforts to move water to southern California.

When Pearn cornered Li at the Sacramento workshop, the biologist had just retired. So he agreed to mentor Pearn—though he's incredulous about why the agencies wouldn't use the research Pearn has already done. He'd already given them everything they needed, Li said: documentation of the pipes—pictures, GPS coordinates—and data that said how much water was flowing through the creek before and after the the pipes.

“What more could you really need?” Li said. “Now, for the question that we have, [an IFIM] is a bit of overkill. It's sort of like—'kid, I want you to design a rocket to the moon.' They said, 'go away...we're too busy, we've got bigger fish to fry. We've got bigger problems to address.' But it basically comes down to this: Is there harm being created? What are you guys going to do as an agency? It would have been a more understandable explanation if they said 'look, yours is a real tiny stream, and at the present time we're fighting to take, for instance, the dams out of the Klamath River'. . . But the basic question is—is this right or is this wrong? If you don't have the wherewithal where you can dedicate staff to address this problem, then simply say that.”

They haven't.

So with the help of Scott Harris, the fish and game biologist, Li is teaching the 15 year old the complexities of the IFIM: Pearn is learning how to collect velocity distributions, how to measure habitats, how to figure out the channel shape of a creek—all with the goal of figuring out how much water is needed in the creek for fish to live. Once the data is collected, it'll go into a software model that will be provided to the agencies; it'll also be Pearn's next science fair project.

But does he think it'll actually change anything on Alder Creek?

“I don't think so,” he said. “But I'm providing them with all the information they've asked for.”

To see a video interview with Bryan Pearn, click here.

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