Too Many Straws

Anderson Valley resident Steve Hall knew something was amiss a year ago August. After one of the rainiest years on record—when parts of the valley had been flooded—Anderson Creek, a tributary of the Navarro River, was dry. “It was as if we were in a drought year,” says Hall, a member of Friends of the Navarro River.

But it was no drought. Hall says he observed trucks filling up water from along the creek at Golden Eye and taking it into the town of Philo and other areas where Anderson Valley’s growing population of vintners cultivate their grapes. “You had trucks filling up multiple times a day, every day, all summer,” he says.

Whether by truck, pump, a trench dug into the side of a creek, or a make-shift dam of dirt piled into a creek bed, water users are dipping into creeks and streams without permits. And it comes at a cost: lower flows impact fish and other aquatic life by diminishing water and raising the temperatures in pools that keep fish alive throughout hot summers.

The main culprits, according to the State Water Resources Control Board, which regulates water rights and diversion permits, are agricultural users, frustrated by having to wait five to more than ten years for a permit. Hall and other residents in Anderson Valley, along with counterparts in Sonoma and Napa valleys, narrow those responsible to a specific group of ag users—vintners. State officials concur.

“Wherever vineyards are being developed—Mendocino, Sonoma, Napa, Solano—that’s where we’re seeing lower flows,” says Jeremy Sarrow of the California Department of Fish & Game.

These unauthorized diversions come in many sizes. Sarrow, one of several Fish & Game staffers charged with looking at the biological impacts of water diversions, says many diversions are ten acre-feet or less; authorized users can legally divert small amounts for domestic uses like stock ponds and drinking water. But Sarrow says these diversions are being abused, and ag users are taking water for crops. “You might think, ‘What’s one acre-foot of water?’ but if 500 people in Sonoma County are taking five to ten acre-feet each&cumulatively that’s a lot to take from watersheds that have coho and steelhead populations in jeopardy.”

The practice of unauthorized diversions—particularly in the wine country—is widespread, says Brian Johnson of Trout Unlimited, because the permitting process for smaller diversions makes it hard to regulate who gets to dip into the river and when. “The culture in this part of the world has been that people build first and then ask permission later,” explains Johnson.

Meanwhile the state Water Board has become buried in a backlog of about 500 applications for water permits and roughly the same number of petitions to change water right conditions. “The Division of Water Rights has about twenty technical staff working on these thousand actions,” the Board’s Liz Kanter explains in an e-mail.

And that’s just the queue for water rights and permit changes. Kanter says the Board acts on unauthorized diversions only after someone files a complaint. Estimates of the number of complaints range from a few hundred to nearly a thousand. And the staffing for investigating these claims is even less than the staff assigned to permits—the Board has only twelve staff dedicated to enforcement. “And these staffers have other assignments unrelated to water right enforcement,” she writes.

How does one police unauthorized diversions? Fish & Game’s Sarrow describes a labor-intensive process that includes aerial photography, water right records, and database matching, and old-fashioned shoe leather detective work to see whether diversions are affecting fish in a watershed and whether the diverters have permits. “We’re typically outgunned&we don’t have the staff—regulatory, legal, or otherwise—to take on all the vineyards and other diverters,” explains Sarrow. (See following story for more on Fish & Game’s budget woes.)

Not all is lost. Trout Unlimited and the Natural Heritage Institute filed a petition in 2004 calling on agencies like the Board and Fish & Game as well as Marin, Sonoma, Napa, Mendocino, and Humboldt counties to improve the permitting and regulatory process for water diversions on central coast streams. The petition has called attention to problems of permitting and enforcement.

One result has been the passage into law of AB 2121, which directs agencies like the Board to develop binding standards for diversions from North Coast streams. The bill faced opposition from agricultural interests, particularly the California Farm Bureau. Nonetheless, the bill passed in 2004, and Governor Arnold Schwarzenegger—who voiced strong support in advance of the legislature’s vote—signed it into law.

Trout Unlimited’s Johnson says the Board, vintners, agencies, and counties are trying to work out an amiable solution to the permit glut. As a result of the petition, Johnson says the Board and others understand they have kinks to fix so obtaining a water right is more efficient.

At the same time, Johnson says vintners appear amenable to moving their diversions to the winter. Another key will be getting the vintners to build their storage systems as off-river ponds instead of engaging in practices such as “spill and fill,” where a crude dam is built by dumping dirt into a river and letting the water pool up behind it while the excess spills over. These dams impede water and sediment flow as well as fish passage. “A lot of them want to do the right thing, and if we can respond with a system to get them a permit in a reasonable time, then I don’t think this is an insurmountable challenge,” says Johnson.

Good faith notwithstanding, however, AB 2121 doesn’t designate new funding for staff—including Fish & Game. Nonetheless, Hall is optimistic that he’ll see some improvement in the Anderson Valley. “The [Water] Board understands that the system is broken, so AB 2121 is the best way we can get them to straighten out their act,” says Hall.

This story first appeared in Estuary newsletter.

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