By Rachel Becker, CalMatters
State officials and the ranchers agree: A $4,000 fine isn’t much of a deterrent to prevent illegal water diversions during California’s droughts. The proposed fine would amount to about $50 per rancher.
A rural water association serving about 80 ranchers and farmers — facing mounting costs from hauling water and purchasing hay to replace dried out pasture — turned on their pumps for eight days in August to divert water from the Shasta River. State and federal officials said the pumping, which violated an emergency state order, threatened the river’s water quality and its salmon and other rare species.
Rick Lemos, a fifth generation rancher and board member of the Shasta River Water Association, said violating the drought order “was the cheapest way I could have got by … When you’re to a point where you have no other choice, you do what you have to do.” He said the alternatives “would have cost us, collectively, a lot more.”
The penalty — $500 per day for eight days of pumping — is the maximum amount the State Water Resources Control Board’s enforcers can seek from the group of Siskiyou County ranchers under the state’s water code. The proposed fine requires a 20-day waiting period or a hearing before it is final.
The small amount and the long delay underscore the limited powers that the state’s water cops have to speedily intervene in conflicts over diversions they have declared illegal.
“They obviously don’t have much enforcement power, because they showed up and told us, ‘Shut your pumps off right now.’ And we said no,” said Lemos. “You would think they’d get an injunction and shut the pumps off, wouldn’t they?”
Julé Rizzardo, the water board’s assistant deputy director of permitting and enforcement for the division of water rights, said the agency’s powers are limited.
“Unfortunately, there are circumstances such as this where the economic gains that folks can get by violating curtailment orders are greater than the potential penalties available to us,” Rizzardo said.
Karuk Tribal Council Member Arron “Troy” Hockaday was disappointed by the fine.
“The punishment doesn’t fit the crime… We’re fighting for the fish. The fish are our life,” Hockaday said.
The penalty, he says, sends a message: “Siskiyou County does not have to listen to what you guys have to say — we’re gonna do what we want. And nothing’s gonna happen to us.“
In addition, the ranchers could face fines of $10,000 a day for future violations.
Under the state’s water code, fines can be larger than $500 a day only after the water board finalizes a cease and desist order, which requires a 20-day waiting period or a hearing. In the case of the Siskiyou County ranchers, Lemos and his neighbors shut their pumps off almost three weeks before the penalty would have increased to $10,000 a day.
“We knew that was coming. That’s why we pumped the water before it happened,” Lemos said.
Jim Scala, a third-generation rancher who is president of the Shasta River Water Association’s board of directors, said he hopes the association agrees to not pay the fine and fight it instead.
“I don’t want to pay them a dime. I want to take them to court,” Scala said. “Because if we pay them $4,000 or $10,000, that’s like admitting that we were in the wrong.”
The fight began simmering in August 2021, when the water board adopted emergency regulations that allow curtailments of water pumping when flows dip below a certain level to protect the Shasta River’s salmon.
Facing dry conditions and dwindling flows, the state ramped up curtailments in the spring and summer of 2022. In early August, the Shasta River Water Association petitioned the board to continue diverting water to fill stock ponds.
But before the board had responded, the ranchers notified state water officials in an Aug. 17 letter that they planned to violate the curtailment that day.
The river’s flows dropped by nearly two-thirds and stayed there for a week until the farmers and ranchers turned the pumps back off — a “precipitous drop” that state officials said could jeopardize the river’s fish.
The state agency said that it recommends the maximum allowable fine due to the “significant volume diverted in a short period of time, … the impacts to the watershed, the sensitive timing of this violation” before salmon migration, and the continued pumping even after a violation notice and a draft cease and desist order were sent.
The river empties into the larger Klamath and is home to key spawning and rearing grounds for fall-run Chinook salmon and threatened Coho salmon. The water board’s notice Friday said that violating the curtailment resulted in lower flows that could “exacerbate negative water quality issues” and “limit fish mobility and survival.”
“This action has direct impacts on more senior water right holders and sensitive fisheries that the Emergency Regulation intends to protect,” the notice said.
Such skirmishes could flare more often as climate change brings more severe and frequent droughts to the state. But experts warn that the state’s powers don’t match the urgency of stopping illicit water use.
“The system still allows one rogue user to decide to pay a fine rather than comply with the law,” said Jennifer Harder, a law professor at the University of the Pacific’s McGeorge School of Law. “California is a world-class economy with world-class natural resources. The state agency charged with protecting its water resources should be given world-class tools.”
Rizzardo said the state doesn’t have the resources or data necessary to police 40,000 water rights holders, particularly during a severe drought.
“We empathize. We recognize the hardships. We have been out in the field, to try to understand the situation more holistically,” Rizzardo said. “But we also aren’t going to ignore the blatant violations.”
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