Assembly Bill 2121 ("Protecting North Coast Fisheries") was signed into law in 2004. It called for the State Water Resources Control Board to issue a new draft North Coast Instream Flow Policy. (We discussed the poison pill in the new policy — watershed groups made up of moneyed diverters only — at length in these pages on January 2.) The draft policy is now circulating among local government agencies including the Mendocino County Water Agency. "Clearly, it's going to redefine water in Mendocino County," Water Agency head Roland Sanford told the Ukiah Daily Journal last week. Sanford added that the increases in water rights application processing requirements under the new policy might lead to grape growers pumping more groundwater rather than apply for diversion permits for Russian River water. "There are some really long range, far reaching land use issues connected with this policy that the [state water] board has not considered," Sanford said. At present the 45-day public comment period ends February 19 which the Water Agency and the California Farm Bureau want extended because the draft policy is 800 pages long and they say the February 19 deadline doesn't allow enough time to review it all.
It's true that the draft policy would impose new paperwork and study requirements on diversion permit applications, but the failure to approve the backlog of hundreds of pending permit applications so far hasn't seemed to stop more and more premium grapes from being planted, so it's not clear how imposing more permit bureaucracy will change the situation in the vineyards if the permits remain pending. You don't need a permit now, or under the new policy, to pump water for irrigation directly from streams running through your vineyard. And off-stream storage ponds are already being filled by water from the Russian River without permits. Diversion permits have more to do with registering a water right than they do with actual diversions.
In a late 2007 article in Terrain Magazine, reporter Kristi Coale confirmed the ineffectiveness of water diversion permits in her story, "Too Many Straws." "Wherever vineyards are being developed — Mendocino, Sonoma, Napa, Solano — that's where we're seeing lower flows," said Jeremy Sarrow of the California Department of Fish & Game told Coale. "These unauthorized diversions come in many sizes," continued Coale. "Sarrow, one of several Fish and 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 [actually they can take more than that because ponds up to 25-acre feet can be built without permits and once they're built and full nobody can prove where the water came from] — 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."
Ms Coale also reports that "that's just the queue for water rights and permit changes. [Water Board staffer Liz] 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 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,' Kanter said." We might add that frequently those complaints go nowhere because even when the Water Board investigates, they often take no action because it's very hard to prove that a diversion is illegal unless the diverter is caught red-handed, which doesn't happen much.
Turning the application processing burden over to well-financed groups of diverters — to be known henceforth as a "watershed group — as the new draft policy does at present, may shift much of the responsibility for permit processing away from the understaffed Water Board and over to the diverters themselves, but it isn't likely to change much on the ground.