STOCKPONDS

REGULATION & GOVERNANCE OF YOUR NATURAL RESOURCES

While much has been written in the California Cattleman about water rights measurement and reporting requirements in the wake of SB 88 (2015) and its implementing regulations (2016’s Emergency Regulation for Measuring and Reporting the Diversion of Water), it has become increasingly clear over the past few years that the broader regulatory landscape governing livestock stock ponds is not universally well-understood in the cattle ranching community. This article is intended as a primer on regulations impacting livestock stock ponds (this article will not address other kinds of water diversions).

There are three major aspects to the regulatory landscape governing stock ponds: establishing a water right, measurement and reporting.

Under California Water Code section 1052, the diversion or use of water without a valid water right is a trespass against the state. Diverting water without a valid water right may subject a diverter to fines of up to $500 per day.

There is a common misconception among some ranchers that stock ponds are exempt from California’s water rights system because they do not directly “divert” water. However, under California Water Code section 5100(c), “Diversion…includes impoundment of water in a reservoir,” and stock ponds thus constitute a diversion of water for which a diverter must obtain a legal water right.

The legislature’s intent that stock ponds require a valid water right was clarified in 1974 with adoption of Assembly Bill 2483, which sought “to clear up many heretofore uncertain conditions of water rights which are the result of a large number of dams and other water impoundment structures which have been constructed for livestock watering use.” AB 2483 established Water Code section 1226.1, which states that “[t]he owner of any dam or other water impoundment structure…the capacity of which is not in excess of 10 acre-feet on January 1, 1975…is declared to have a valid water right…if that person files a claim of water right with the board.”

While there may be limited exceptions, for the most part, the State Water Resources Control Board views stock ponds as requiring a valid water right.

Thus, ranchers with stock ponds who have not filed for a water right with the SWRCB are likely in violation of the law.

There are a number of water rights that can cover stock ponds, briefly discussed below. They include stockpond certificates, livestock stockpond use registrations, permits/licenses and pre-1914 rights.

Under Water Code section 1226.1, “The owner of any dam or other water impoundment structure constructed prior to January 1, 1969, the capacity of which is not in excess of 10 acre-feet on January 1, 1975…is declared to have a water right…if that person file[d] a claim of water right with the board not later than December 31, 1997.” This water right is known as a stockpond certificate.

The major benefit of the stockpond certificate program was that it established a water right for small stockponds with no attendant fees; to this day there are no fees associated with stockpond certificates. Additionally, until 2016, when SB 88 took effect, certificate holders had never been required to report their diversion and use of water.

Of course, stockpond certificates have not been without their drawbacks: due to the casual nature of the water right, many diverters were not aware that their predecessor-in-interest had obtained a stockpond certificate, and some even forgot that they themselves had filed for the right. As a result, many stockpond certificate holders were among those who, on July 27, received a notice of deficiency for failure to file annual diversion and use reports in 2017 and 2018, resulting in a great deal of confusion among certificate holders.

Unfortunately, the stockpond certificate program was closed to new filings at the end of 1997. Those establishing water rights for stockponds no larger than 10 acre-feet have since been required to file for water rights via the livestock stock pond registration program.

Ranchers with stockponds no larger than 10 acre-feet in capacity are now required to file for a Livestock Stockpond Use Registration.

Unfortunately, unlike stockpond certificates, registrations do have associated fees. As of press time, the filing fee for a livestock stockpond use registration was $250, with a renewal fee of $100 every five years. In 2017, the SWRCB proposed increasing the annual fee by 400% by making the renewal fee $100 annually. CCA was successful in killing that proposal, but the SWRCB made it clear that the fees would ultimately be increased to better cover the costs of the registration program.

On September 20, the SWRCB considered a proposal to steadily increase livestock stock pond registration fees over the next three years, to $50 for Fiscal Year 2018-19, $75 for Fiscal Year 2019-20 and $100 for Fiscal Year 2020-21 and annually thereafter. The SWRCB proposed capping the fee for any one registration holder at five registrations—that is, a registration holder would be liable for no more than $250 for 2018-19, $375 for 2019-20 and $500 for 2020-21 and thereafter regardless of the number of livestock stockpond use registrations owned. CCA opposed the fee increase (as the hearing occurred after press time, stay tuned to future CCA publications for the outcome of the hearing).

One way that diverters can minimize the impact of the annual fees is to put multiple stock ponds on one registration. Up to five stockponds may be included on one livestock stockpond use registration so long as the total capacity of all the ponds on the registration does not exceed 10 acre-feet and the registrant does not exceed a ratio of one pond per 50 acres of land covered by his or her registrations (this ratio takes into account all registrations owned by the registrant, rather than each individual registration).

Typically, both the SWRCB and the California Department of Fish and Wildlife will place conditions upon registrations.

The registration form for a livestock stockpond use registration can be found at https://www.waterboards.ca.gov/waterrights/publications_forms/forms/docs/lsu_registration.pdf.

For stock ponds that are larger than 10 acre-feet in capacity, a permit or license is necessary. A water rights permit is the process by which a diverter applies for a right to appropriate water. A water rights license issues once the permitting process has been satisfactorily completed.

As with registrations, permits and licenses have attendant fees. The filing fee for a permit application is $1,000 plus $15 for each acre-foot beyond 10 acre-feet, capped at $534,155. As of press time, the annual fee for permits and licenses was $150 plus $0.069 for each acre-foot beyond 10 acre-feet, though on September 20 the SWRCB considered whether to raise that annual fee to $225 plus $0.073 for each acre-foot over 10 acre-feet.

Applications to appropriate water can be found at https://www.waterboards.ca.gov/waterrights/publications_forms/forms/docs/app_form.pdf.

As noted above, whether one must apply for a registration or a permit/license depends on whether or not one’s pond is larger than 10 acre-feet in capacity. For purposes of determining a pond’s capacity for registering a stockpond, the SWRCB suggests the formula [Capacity = Maximum Depth (ft) x Surface Area (ac) x 0.7]. If the resulting capacity is 10 acre-feet or less, a stockpond registration is likely appropriate.

If the estimated capacity exceeds 10 acre-feet, a permit/license will be required. Unfortunately, estimating the capacity of the stockpond will not suffice for filing the application for a water right; according to the SWRCB, licensing requires a number of field measurements, including a “survey of reservoir capacity by [a] registered engineer or licensed land surveyor.”

It is also possible to divert water to storage under a pre-1914 water right. Diverters with a pre-1914 right do not need a water right permit unless they have increased their use of water since 1914, though an Initial Statement of Diversion and Use must be filed with the SWRCB and annual water diversion and use reports must be submitted.

Stockponds are unlikely to exist under a riparian right. Because riparian rights extend only to the natural flow of water, the SWRCB explains that “water cannot be stored during a wet time for use during a drier time under a riparian right.” While water may be temporarily stored under a riparian right, it may be stored for no longer than 30 days.

Given the time, effort and significant fees that come along with filing water rights associated with stockponds, many ranchers wonder why they ought to go through the process at all. The answer, of course, is that the SWRCB can fine those diverting water without a valid water right $500 per day of the violation. If you’ve been diverting water to a stockpond for years—or even decades—without filing for a right, that penalty can become astronomical.

While enforcement actions for un-registered stockponds are not entirely common, they do happen, usually in the context of disputes among neighboring landowners where one party reports the other. They could become much more widespread, however. As Larry Forero, Director of UC Cooperative Extension Shasta County, recently put it: “With Google Earth, there are no secrets.”

If you are considering registering your stockpond, you need not be concerned about prior non-compliance: the SWRCB is more interested in bringing diverters into compliance than in penalizing them and has assured CCA in the past that they will not institute enforcement actions against ranchers who come forward to register existing stockponds. Should you elect not to register your ponds, however, you are accepting the risk of potential $500-a-day fines.

SB 88 required the measurement of all water diversions greater than 10 acre-feet per year and annual reporting of all water diversions (regardless of size). A brief description of the measurement provisions as they pertain to stockponds follows.

As noted above, SB 88 only required the measurement of diversions greater than 10 acre-feet of water per year. Thus, all stockponds covered by a certificate or registration are not required to measure their diversion of water. That said, these diverters still must report their annual diversion and use of water.

CCA, concerned that rights holders diverting less than 10 acre-feet of water annually would either be subject to steep fines for potentially inaccurate reporting or would have to measure their diversions despite being exempt from the regulations’ measuring requirement, sponsored AB 2357 (Dahle) in 2016, seeking regulatory relief for small diverters. In response, the SWRCB clarified that such small diverters “are not required to measure the amount diverted” and “may estimate the monthly quantity of water diverted using their knowledge of the stockpond, weather conditions, ranching practices, and other relevant information.”

Those with stockponds covered by a permit or license, however, are required to measure their diversion and use of water. The required frequency of measurement and the required accuracy of division measurement devices are based on the size of the stockpond as detailed below:

The easiest method for measuring diversion to a stockpond will be a staff gauge, a measuring tool similar to a yard stick that provides a visual indication of the depth of water in the pond. Using the staff gauge, a rancher can read the level of the water in the pond. To convert water level to water volume, ranchers will need to apply a formula based on the stockponds depth-capacity curve. According to the SWRCB, “Each licensed reservoir in California has data on file with the Division [of Water Rights] necessary to generate a depth-capacity curve. Licensed owners may contact the Division to obtain copies of depth-capacity curve data.”

For ponds under 100 acre-feet, ranchers are deemed by existing regulations as “qualified individuals” for installing the staff gauge or other measurement device. For ponds over 100 acre-feet, installation must be conducted by a professional engineer or certain contractors, or by a person who has completed an AB 589 course offered by UC Cooperative Extension.

For more details on diversions measurement requirements for stockponds, consult prior editions of California Cattleman or call Kirk Wilbur in the CCA office.

While diverters may measure water hourly, daily, weekly or monthly (or not at all, in the instance of stockponds no greater than 10 acre-feet), that information is only submitted to the SWRCB once annually. For those diverting pursuant to a certificate, registration or permit/license, annual reports are due for the calendar year by April 1 of the following year. For those diverting under a riparian or pre-1914 right, reports are due by July 1 of each year. Failure to file a report may subject a diverter to a fine of $500 a day for each day beyond the reporting deadline.

Reports must be submitted electronically at the SWRCB’s electronic Water Rights Information Management System Report Management System (eWRIMS RMS) at https://rms.waterboards.ca.gov/ using the Water Right ID associated with the stockpond(s) and a password provided by the SWRCB.

While reporting can be a cumbersome and confusing process, the SWRCB has released a series of videos that thoroughly explains the reporting process, available at https://www.waterboards.ca.gov/videos/rms.html.

Securing a water right, measuring diversion of water and reporting annually can be daunting, but they are required by California law. For more information on laws and regulations governing stockponds, and for help complying with these laws and regulations, please don’t hesitate to contact Kirk Wilbur in the CCA office.