ITEM: 2

SUBJECT: PROPOSED ORDER IMPOSING ADMINISTRATIVE CIVIL LIABILITY FOR UNAUTHORIZED DIVERSION OF WATER FROM AN UNNAMED STREAM TRIBUTARY TO BEAR CREEK IN MARIPOSA COUNTY

DISCUSSION: On June 15, 1997, the Executive Director issued an administrative civil liability (ACL) complaint, pursuant to Water Code section 1055(a), in the amount of $1,000 against Harvey and Donna Ridenhour for the illegal storage of water in a reservoir on an unnamed stream tributary to Bear Creek in Mariposa County. The Ridenhours initially requested a hearing in this matter. By letter dated October 21, 1997 the Ridenhours stipulated to the facts of the ACL and stated that they were not requesting a hearing but asked that they be allowed to address the Board at a workshop or Board Meeting. They wish to present their viewpoint and ask the Board to reduce or eliminate the civil liability.

The Ridenhours hold Permit 19095 (Application 27701) which authorizes the storage of six acre-feet in the reservoir. During an inspection for license, the reservoir was found to hold 20 acre-feet.

Between November 1992 and December 1995, four letters were sent to the Ridenhours advising them of the need to either lower the spillway or file an application for the excess reservoir capacity. No application was filed. In August 1996, the Ridenhours were again advised of their unauthorized diversion and were told that enforcement action would be initiated unless an application was filed or proof was submitted that the spillway had been lowered. There was no response from the Ridenhours.

In May 1997, the reservoir was inspected for compliance with the six acre-foot storage limitation of Permit 19065. The reservoir was found to be storing 15.8 acre-feet or 9.8 acre-feet in excess of the authorized storage volume. Consequently, an ACL complaint imposing a fine of $1,000 was issued in June 1997. In August 1997, the Ridenhours filed an application for the excess reservoir capacity.

The Ridenhours were alleged to be in violation of Water Code section 1052(a) for the 1996-97 collection season authorized by Permit 19065 (Application 27701) which began on November 1, 1996 and ended on May 30, 1997. An administrative civil liability of $105,500 ($500 per day x 211 days) could be imposed for this violation.

The staff costs associated with issuance of an ACL complaint, including voluntary compliance efforts, a field inspection, and review by the Office of Chief Counsel, are approximately $1,000.

POLICY ISSUES: Should the Board adopt the proposed order imposing the administrative civil liability in the amount of $1,000?

FISCAL IMPACT: The activity is budgeted within existing resources and no additional fiscal demands will occur as a result of approving this item.

REGIONAL BOARD IMPACT: None.

STAFF RECOMMENDATION: Staff recommends adoption of the proposed order.

12/22/97 DRAFT

By the Board:

1.0 INTRODUCTION

The Executive Director of the State Water Resources Control Board (Board) issued Administrative Civil Liability (ACL) Complaint No. 262.10-02 on June 15, 1997, pursuant to Water Code section 1055(a) against Harvey W. Ridenhour and Donna J. Ridenhour for the illegal storage of water in a reservoir on an unnamed stream tributary to Bear Creek in Mariposa County. The Ridenhours initially requested a hearing in this matter. By letter dated October 21, 1997 the Ridenhours stipulated to the facts of the ACL complaint and stated that they were not requesting a hearing but asked that they be allowed to address the Board at a workshop or Board Meeting. They wish to present their viewpoint and ask the Board to reduce or eliminate the civil liability. In consideration of the facts in this matter, the Board finds as follows:

2.0 BACKGROUND

The Ridenhours hold Permit 19095 (Application 27701) which authorizes the appropriation by storage of six acre-feet of water per annum for recreational uses in the reservoir which is the subject of the ACL. During an inspection for license, the reservoir was surveyed and found to have a capacity of 20 acre-feet or 14 acre-feet in excess of the permitted amount.

Between November 1992 and December 1995, four letters were sent to the Ridenhours advising them of the need to either lower the spillway to the permitted storage of six acre-feet or file an application for the excess capacity of 14 acre-feet. No application was filed.

By letter of August 31, 1996, Ridenhours were again advised of their unauthorized diversion and were told that enforcement action would be initiated unless an application was filed or proof was submitted that the spillway had been lowered. There was no response from the Ridenhours.

In May 1997, the reservoir was inspected for compliance with the six acre-foot storage limitation of Permit 19065. The reservoir was found to be storing 15.8 acre-feet, about 9.8 acre-feet in excess of the authorized storage volume. Consequently, in June 1997, an ACL complaint was issued.

In August 1997, the Ridenhours filed an application for the excess capacity of the reservoir.

3.0 JUSTIFICATION OF ACL AMOUNT

Section 1055.3 of the Water Code provides: "In determining the amount of civil liability, the Board shall take into consideration all relevant circumstances, including, but not limited to, the extent of harm caused by the violation, the nature and persistence of the violation, the length of time over which the violation occurs and the corrective action, if any, taken by the violator."

In this case the violation continued over a long period, and the Ridenhours took no action to correct the violation despite repeated warnings. Only after an ACL complaint was issued did the Ridenhours file an application. The staff costs associated with issuance of the ACL complaint, including voluntary compliance efforts, a field inspection to verify the diversion, and review by the Office of Chief Counsel, are approximately $1000. These costs could have been avoided if the Ridenhours had filed an application when the violation was first called to their attention.

While filing of an application is a step towards compliance, it does not justify the long period of violation before an application was filed. Nor does it bring the Ridenhours into compliance unless and until a permit is issued or the spillway is lowered. In these circumstances, a liability of no less than $1000 is appropriate. If the Ridenhours had not filed an application, a substantially higher liability would be justified.

4.0 CONCLUSION

Based on the above findings, the Board concludes that administrative civil liability in the amount of $1,000 is appropriate considering the numerous opportunities afforded the Ridenhours to file an application and the staff time expended in this matter.

IT IS HEREBY ORDERED that Administrative Civil Liability Complaint No. 262.10-02 is imposed in the amount of $1,000.

The undersigned, Administrative Assistant to the Board, does hereby certify that the foregoing is a full, true, and correct copy of an order duly and regularly adopted at a meeting of the State Water Resources Control Board held on January 22, 1998.

AYE

NO:

ABSENT:

ABSTAIN:

______________________________

Maureen Marché

Administrative Assistant to the Board