Everyone in Mendocino County has heard the old adage, “Whiskey is for drinking and water is for fighting over,” and with the ongoing drought the old adage has rung truer than ever. Recently much attention has focused on outright theft, or illegal diversions that go to marijuana gardens, cases where it would seem that the law, and common sense ideas about where water should flow, provide clear cut answers, even if enforcement is tricky.
But the complicated nature of water law and its enforcement, along with overlapping interests and agencies that determine how the law is applied in California mean that even in cases where the authorities are directly involved, and where diversions are used for lawful, even official, purposes figuring out just who owns the water in a creek, and how they can get at it, is no simple task.
Take an ongoing case that has been brewing near the headwaters of a local Willits creek; one that could be seen as a simple neighbors' quarrel, an instance of egregious environmental destruction, a case of outright water theft, or just a man improving his land, all depending on your point of view. The allegation is that a property owner, with a creek flowing through his property, expanded an existing pond, through which the creek flowed, and raised the height of an old dam, impounding a much larger amount of water than had previously been held.
Neighbors have become increasingly frustrated, to the point that in the past week the local road association drafted a letter to the State Water Resources Board, specifying their complaints, “Some of our parcel owners have noticed a loss of ground water on their properties in the Haehl Creek Watershed. At least one well has gone dry. Upper Haehl Creek stopped flowing in mid-May, much earlier than normal. This may be due to the regional drought. However there seems to be another cause.” Going on to say, “He [the property owner] allegedly took water from an unpermitted, newly constructed, on-stream pond and sold approximately 300-400 tanker truck loads, each with a 4000 gallon capacity. The trucks are reportedly owned by DeSilva Construction, a contractor for Cal Trans and presumably the water is being used for the Willits Bypass project.”
DeSilva Gates Construction, contacted for comment, stated that though they did purchase water from the property owner in the past, they had not bought any water from the site since at least October, precisely because they had worried about the ongoing dispute. And that they had trucked out only a small amount of water, though they declined to comment on just what that meant.
A “lake or streambed alteration agreement” was never filed with the Department of Fish and Wildlife and as a result the department investigated, conducting an inspection of the dam and pond. CDFW determined that the alterations violate environmental regulations on several accounts, including sedimentation, a lack of screens to prevent non-indigenous species from entering into rivers, and slowing the flow of water increases temperatures, above the temperature that is healthy for salmon and trout. Or in the dry language of the official documents, “CDFW is concerned interruption of stream flow will harm listed salmonids by reducing stream flows or potentially de-watering downstream reaches.”
But the department has not taken any punitive actions, or brought any charges. Instead, as Environmental Scientist Wes Stokes, of Fish and Wildlife, explains, “That's my preference, is to sort of catch more flies with honey, to work with people and get them to cooperate with us. It's more helpful if people support our mission than if we take the heavy handed approach everywhere. Of course it's our interest to work cooperatively with people be it the growers or whoever else it is.”
This year the department has seen a big uptick in the number of complaints filed, again Stokes, “We're getting a lot of neighbor disputes especially over water.” As he says at least every week his Hopland office is seeing some kind of complaint, “I'd say each year we're getting more complaints, so it's probably three or four times more this year than a couple years ago.” He also points out that illegal water truck drafting is rampant throughout the county and though most of his complaints are somehow related to marijuana, he also gets a fair chunk that deal with old unpermitted dams that he calls “legacy structures.” And the problem continues to get worse with creeks drying up across the county, and fish getting stranded in pools, he says, “I believe in some watersheds we've exceeded the limit of what can be diverted.”
The property owner, in question, has hired a consultant who in turn notified Fish and Wildlife of an intent to make alterations to comply with their regulations, but determining who owns the water is not up to Fish and Wildlife and their environmental scientists, but decided by the California Water Resources Board. Fish and Wildlife only decides if the infrastructure on the stream, the pond, dam etc. are up to environmental regulations, and they have some say in how much water is left over for fish but.
In the case of the pond and dam on Upper Haehl Creek, the property owner filed a request for a livestock diversion only after the pond had been built, and after the neighbors had put in a complaint, and Fish and Wildlife had made an inspection. The actual process of being granted a water right being a long one, the Water Board required the property owner file temporary paper work stating his desired use for the water, and allowed him to continue without making alterations until the paper work is all processed, which generally takes about four months.
A spokesman for the Water Board acknowledge that, “Diversion of water without a valid basis of right is an unauthorized diversion.” However adding, “The State Water Board exercises discretion when determining the need to take enforcement actions, such as a cease and desist order or administrative civil liability.”
Even if the water rights were granted a livestock diversion right, this would not allow water to be sold, but the property owner has addressed this by claiming the water sold to DeSilva Gates was actually ground water from a well.
At present the neighbors have begun to send letters and make further complaints, the property owner has made no significant change to his pond and dam, the Department of Fish and Wildlife continues to say that the alterations are environmentally damaging and in violation of environmental rules, and the Water Board continues to process the paper work. And the creek continues to be dry, and the drought doesn't give any sign of breaking.
(Courtesy, the Willits News.)
Neighbors need competent legal assistance.