State Water Board adopts order limiting Marble Mountain Ranch diversions, requires diversion control and compliance plan

The State Water Resources Control Board on Tuesday adopted a proposed order directing Marble Mountain Ranch to install a diversion control that limits water taken from Stan Shaw Creek to amounts reasonably needed for beneficial use and to return nonconsumptive flows to the creek above the anadromous reach.

The measure, adopted unanimously with a change sheet, responds to a years‑old enforcement proceeding that examined whether diversions and the ranch’s hydropower operations constituted waste and unreasonable use and harmed public trust resources, including habitat for endangered coho salmon.

Hearing officer Sam Bivens of the Administrative Hearings Office told the board the proceeding dated to a hearing in November 2017 and was later assigned to the AHO for a proposed order. Bivens said the hearing record did not resolve every technical question raised by parties but supported finding that the ranch’s consumptive domestic and irrigation uses were not shown to be unreasonable on the record while the hydropower operations were unreasonable in the way they were carried out.

Bivens described the system studied in the proceeding: the ranch claims a pre‑1914 right to divert up to about 3 cubic feet per second (cfs) and roughly 2,000 acre‑feet per year from Stan Shaw Creek, which flows into the Klamath River; the ranch’s point of diversion is a rock dam that is adjusted by hand and conveys water by an earthen diversion ditch to either a potable system or a penstock for a small Pelton wheel. He said the Pelton wheel requires roughly 2 cfs to operate and that, historically, the diversion configuration at times routed more water than was actually consumed and discharged tailwater into a different tributary (Irving Creek) rather than returning it to Stan Shaw Creek.

The proposed order does not ban hydropower but requires the respondents to submit a compliance plan, to be approved through the enforcement process, that includes a diversion control mechanism “capable of limiting diversions to amounts reasonably needed for beneficial use” and that returns nonconsumptive flows to Stan Shaw Creek above the anadromous reach. The order’s authors said that approach gives flexibility for an engineering solution — for example, piped conveyance or other viable diversion controls — while addressing observed ditch failures, conveyance losses and sediment concerns.

Parties and stakeholders urged different remedies during the public record. Federal and state fishery agencies and some conservation organizations had recommended a bypass flow that would leave 90% of unimpaired flow in the stream’s anadromous reach and a 2 cfs minimum in non‑anadromous reaches; the hearing officer concluded the administrative record in this proceeding lacked the specific showing, and the necessary parties, to impose a system‑wide bypass flow in this adjudicative context. The hearing officer and several board members noted legal and practical constraints, including the rule of priority and the absence of some junior diverters from the record, which limit what the board may require in a single adjudicative order.

Conrad Fisher, a party and local resident, urged a stronger remedy and said piping the diversion and limiting diversions to actual place‑of‑use needs would protect salmon and reduce sediment; retired National Marine Fisheries Service hydrologist Margaret Tausser and other commenters urged adopting the bypass flow recommendation to protect coho. Respondent counsel Barbara Brenner told the board the ranch has made changes — including installing solar power — and raised feasibility and cost concerns about installing certain measurement or control devices at the point of diversion.

The board’s vote to adopt the order was unanimous. Board members said they wanted the order to proceed and expected the enforcement team, other resource agencies and the ranch to work through the compliance plan process, permits and site‑level engineering to implement protective measures. The enforcement team may, if future conditions or evidence justify it, bring additional proceedings or regulatory steps addressing flow quantification or other system‑wide remedies.

The order directs staff to accept a compliance plan from the respondents and authorizes enforcement staff and the Division of Water Rights to resolve implementation disputes as they arise. The board’s action closes the AHO proposed‑order phase and sets the compliance and permit process in motion.

Background: Stan Shaw Creek provides thermal refuge where cold tributary pools enter the Klamath River; the anadromous reach between Highway 96 and the river is a key habitat area. The administrative record includes testimony and technical submittals from the Karuk Tribe, National Marine Fisheries Service, California Department of Fish and Wildlife, conservation groups and local residents. The proceeding was filed after complaints alleging seasonal dewatering, excessive diversions for hydropower and sediment impacts; the proposed order focuses on preventing future wasteful diversions and addressing water quality and habitat risks via diversion control and returning nonconsumptive flows to Stan Shaw Creek.

What’s next: The respondents must file a compliance plan. The plan and any subsequent permits and technical work are expected to address diversion control, measurement and how nonconsumptive tailwater will be returned to Stan Shaw Creek. The enforcement division and Division of Water Rights will oversee implementation and may bring additional actions if needed.