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Too much, too little, and at the wrong time in any amount, water can fall into any of these categories. Ag operations need access to water as a basic input to their operations. In the Midwest, we are largely immune to water shortage and spend more time diverting water and complaining about rain than looking to the sky for an uncontrolled input essential to success.

Other areas of the country aren’t so lucky. Water allocations can make or break an operation. Using the government to supervise these allocations is a natural reaction, but sometimes involving the government can have unnatural results.

Louis and Darcy Charon have rights to take water from a Trinity County creek. In error, they reported the wrong amount to the state water board. They reported using a trillion-acre feet of water each year from 2009-2013. An acre-foot of water is about 326,000 gallons, which is enough to cover one acre one foot deep. The amount they reported is probably more water than is available on the entire planet. When they were asked to take another look, they reported 21,383 acre-feet a year. 21,383 acre-feet of water would be enough volume to cover 21 acres more than 1,000 feet deep. By comparison, a family generally uses about ½ an acre foot a year.

The Charon’s have a riparian water right, which means they have access to water that runs adjacent or through their property without a hard number associated with it. Riparian water rights must be reasonable and beneficial however. The play they may have been making is to develop a record of their consumption so that that level of consumption would be in the record in any future attempts to regulate use of the water. This would make the consumption level’s they reported a watery gold mine in the event of limited water.

The Charon’s have been fined $10,000 for overstating the amount of water they diverted and can have it reduced further if they hire someone to report how much water they are taking. So, in the end, the Charon’s, who have a non-numerically defined reasonable and beneficial use are being fined for not providing a numerical assessment of how much they used, despite having no requirement do to so associated with the actual water right.

Drop in the Furrow and Face the Fine

In September 2018, The U.S. Attorney's Office, Environmental and Natural Resources Division, in California announced that a Goose Pond Ag, Inc of Florida has agreed to pay $5.3 million in civil penalties and costs to perform work to repair disturbed streams and wetlands for deep ripping the property. The intent was to move the property from pasture rangeland into Walnut Orchards. The issue steamed from the depth of the rippers. While the farm operation claimed 4-7-inch rippers were used, the government asserted 3-foot-long rippers were used, averaging a 10-inch penetration of the soil. While farmers are generally exempt from Clean Water acts prohibition on materials clogging waterways, the government has taken the position that deep ripping is not allowed.

Tuesday, March 26, 2019
  • Patrick B. Dillon
  • Jill Dillon
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Patrick B. Dillon enjoys finding solutions to legal issues and catching problems for clients. Pat practices in the Sumner office regularly represents clients in district, associate district and magistrate courts for agricultural, real estate, criminal and collection issues. He drafts wills and trusts, creates estate plans and helps clients through the probate process.
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Jill Dillon focuses on family law, estate planning and IRS matters. Jill is a University of Northern Iowa undergraduate (Political Science Cum Laude) and a Drake University Law School graduate. Jill spent extensive time advocating for low income tax payers in front of the IRS and the State of Iowa Department of Revenue while at Drake.

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