How about enforcing current water laws?

How about enforcing current water laws?

by Lloyd Carter (http://www.lloydgcarter.com/content/091224339_how-about-enforcing-current-water-laws)

Seventeen years ago, Patrick Porgans and I co-authored an article that ran at length in the Forum section of the Sacramento Bee. We argued then that new and proposed state and federal water marketing changes would enrich some people "by turning [publicly-owned] water into a freely transferable commodity."

Sadly, as proven by a recent below-the-rader $73 million water transfer from a small irrigation district in the western San Joaquin Valley to an urban district in the Mojave Desert, time has proven us right. Profiteering by buying cheap water from the public and selling it to the highest bidder is now making small groups of people enormously rich, to the detriment of farming, the Delta, and the state treasury.

Patrick and I remain deeply concerned about an equally serious problem: the inability or unwillingness of the State Water Resources Control Board to catch and punish water rustlers, including the two most powerful water agencies in California: The U.S. Bureau of Reclamation (USBR) and the California Department of Water Resources (DWR).

As the present time both the DWR and USBR are under a Cease and Desist Order issued by the state water board in 2006 for violating the terms and conditions of water quality standards in the south Delta.

Three years later, the State Water Board has still not imposed sanctions for the water quality violations by the two big water agencies.. A hearing on the aging Cease and Desist Order is scheduled for January 5. In addition, a tentative State Water Board meeting is scheduled for mid-February for a proposed North Coast Instream Flow Policy" (AB 2121) that was supposed to be adopted in January 2007, almost three years ago. Water theft, it seems, is rampant in California and the chances of the hundreds if not thousands of water thieves getting caught or punished are small.

Do not expect the Water Board to start doing its job. Do not expect the Legislature to adequately fund the Water Board so it can actually do its job. Do not expect any Governor to begin addressing this ongoing problem.

In a recent email to Patrick, Vicky Whitney, Chief of the Water Board's Division of Water rights, stated:
"In regard to the identified illegal diversions, although I am obviously aware of them, the Division has not taken follow up action because of a lack of resources. Our enforcement staff has inspected about 130 of the largest illegal storage diversions of the 800 known storage diversions in the Russian River watershed for which the board has no record of a water right. After completing those investigations, the board members directed me to provide a field enforcement presence in the Delta, and the enforcement staff (six of them, which is all of them) were reassigned to investigate suspected illegal delta diversions. Enforcement related to those diversions is imminent." [Emphasis added]

In other words, the Water Board cannot enforce its own rules or state water law because of a "lack of resources." Meanwhile, CalFed has burned through several billion dollars in the last decade and the dysfunctional Legislature wants to spend another $11 billion on yet another water bond while ignoring the theft of huge amounts of water.

Regarding the North Coast Instream Flow Policy, Whitney emailed Patrick the following:

"Staff will brief the board members within the next week or two on it's proposed revisions to the draft policy. It will be released to the public upon approval of the board. I hope to get it to them for consideration at a public meeting in February. It is largely done. Delays at this point are primarily my responsibility as I have been responding to the enforcement related comments, and my attention has been diverted as a result of recent legislative action (specifically the tasks directed to the water rights program by the new water bills). Earlier delays were primarily related to administrative difficulties related initially to failure by the legislature to fund the work associated with AB 2121 (and a signing directive by the Governor to the Board to not do the work unless funding was provided) and subsequently to stopping and starting contract work in compliance with various Executive Orders issued by the Governor due to the state's fiscal issues. The flow requirements in the policy primarily, but not exclusively, pertain to unpermitted projects, including existing illegal projects. Other provisions of the policy apply to all existing diversions (the enforcement and small domestic use provisions, for example). As soon as the enforcement positions recently provided by the Legislature are established by the Department of Finance, we will commence filing them. And enforcement actions on the north coast will recommence. I agree that adjudication of some or all of the watershed is appropriate. The board cannot initiate an adjudication on its own motion."

A little history is in order as to whether Californians can ever expect the Water Board to do its job.

In comments sent to the board on December 14, Patrick noted, "During the 1987-92 "drought" DWR and USBR violated the terms and conditions of their respective permits and related Delta water quality standards on more than 200 occasions. According to DWR and USBR’s testimony, submitted as part of the hearing record, they illegally impounded, stored or exported an estimated 350,000 to 500,000 acre-feet of water in 1991-1992; which according to your staff was worth more than $29,000,000.00 (water-market value). Although, [I] successfully recruited the assistance of more than a dozen prominent legislators insisting that the Board take an enforcement action against DWR and USBR for the illegal violations and stealing water; the Board opted not to take any action. Back in September 2008, the Board reassigned its "enforcement" staff from pursuing 1,771 known illegal water diversions in the Russian River watershed, wherein illegal "take" of listed salmonid species is occurring, in [the] "Wine Country" and put the bloodhounds to work sniffing out potential "illegal" diversions in the Delta, that may have been "stealing" water from its sister agency!"

If a $29 million theft of water goes unpunished, what are the chances the State Water Board will go after DWR and USBR this time?

We are not the only ones raising the red flag. To see what the South Delta Water Agency has to say, click HERE: http://www.lloydgcarter.com/files_lgc/Iuploads/KMBT25020091214114614.pdf

Patrick and I urge readers of this to write, call, email the State Water Resources Control Board and demand that it halt all illegal diversions of water, no matter who the perpetrator is.