The principal problem with water diversion and water pollution in the South Fork Trinity River basin occurs within the Hayfork sub-basin. The problem was described well in an environmental review document produced by Trinity County (1988):
"Hayfork Creek historically supported a large steelhead run. However, the large amount of water diverted from Hayfork Creek and its tributaries has seriously damaged the ability of Hayfork Creek, between the East Fork and Nine Mile Bridge, to support fish life during low flow periods. Reduced summer flows have resulted in increased water temperatures and decreased dissolved oxygen, making survival of salmonid species difficult, especially during relatively low rainfall years."
To remedy water quality and water quantity problems which are affecting salmonid populations, we must have a clear understanding of the laws governing water diversion, the extent and nature of existing diversions, the nature and source of water pollution problems, as well as the effects flow depletion and pollution have on anadromous salmonids. Most of the problems with water pollution are centered in Hayfork Valley at present. A shallow clay layer beneath the alluvial material that makes up the valley floor (SCS, 1970) stops deep percolation of water into underground aquifers. Consequently, the water, and any pollutants, are then flushed into Hayfork Creek. Water quality problems in the main stem of the South Fork Trinity River are principally related to sediment and were discussed in greater detail in Chapter IV.
Two types of water use are recognized under California law: riparian rights and appropriative rights (SWRCB, 1990). The State Water Resources Control Board (SWRCB) has jurisdiction over water use permits in California and acts as arbiter of all disagreements over water rights. All water rights in the state must meet reasonable beneficial use standards; wasteful use of water can be contested and unreasonable use can be stopped by order of the SWRCB (1990). Ground water taken from wells does not require a permit from the SWRCB unless the water taken comes from a clearly defined underground aquifer, however, the Trinity County Health Department has required a permit for all domestic wells since 1990. The California Department of Water Resources tracks some well log data, but information collected is confidential (Tom Stokely, personal communication).
Riparian Rights
Riparian rights are those where water is extracted for use on lands that directly boarder the stream. Any owner of a parcel immediately adjacent to a water course has the right to take water for domestic and agricultural use at any time unless specific deed restrictions are stated in the title to the land. Riparian rights do not require a permit from the SWRCB, however, the SWRCB requests that riparian water users file a statement of diversion and use.
Water may be diverted from upstream areas for delivery to downstream riparian lands as long as agreements are in place with the land owner at the point of diversion and no damage is inflicted on intervening land owners. Riparian rights are not superior by virtue of prior use, so proposed new reasonable use and streamflow diversions have equal standing under the law. Because of these statues, the SWRCB can not resolve differences between holders of riparian water rights. If insufficient water is available for all riparian users, ultimate recourse is in the courts. Water taken by virtue of riparian water rights cannot be impounded for deferred use. Riparian water rights also cannot be transferred to non-riparian owners.
Appropriative Rights
Any removal of water from stream side areas for delivery to non-adjacent parcels constitutes appropriative use, which requires a permit from the SWRCB. Appropriative water use prior to December 1914 has automatic standing as a permitted use. If challenged, a pre-1914 appropriative right must be documented both in terms of date of first use and continuing subsequent use. A "record of use" can be filed to document historical use of water and to preserve standing against future challenges. The record of use often comes from living memory of people who established such rights and if they die before such a record is made, substantiation of the appropriative right against later challenges may be difficult. Appropriative rights may be lost if not used for a period of five years. There were no documented pre-1914 appropriative water rights holders in Trinity County on record with SWRCB as of 1988 (Mike Meinz, personal communication).
Enforcement Actions and Determination by SWRCB
The SWRCB investigates and takes appropriate action when written complaints are filed alleging illegal diversion, violation of permits, unreasonable use, or violation of public trust. The public trust doctrine has traditionally been used to protect navigation, commerce and fisheries, but recent court decisions have expanded it to include rights to fish, hunt, swim, boat and recreate (Baiocchi, 1993). A legal process to determine ownership of water rights is known as adjudication. After adjudication takes place, water users in the effected area may request the California Department of Water Resources (CDWR) appoint a water master, who has the power to uphold the court order. Water users in an area under adjudication would then pay for the services of the water master in accordance with their level of use.
The supply of water in the Hayfork Valley in dry years is not sufficient for current users and to meet beneficial use under the public trust doctrine (Trinity County, 1987). This water supply problem has led to legal challenges between water users in thearea, studies of water availability, and to designation of the area by Trinity County as a Critical Water Resources Overlay Zone (CWR).
Critical Water Resources Overlay Zone (Trinity County,1987)
A principal finding of the Trinity County Planning Department report (1987) was that "the water resources in the Hayfork Creek Watershed as a whole are over-allocated as shown by streamflow data, well logs, the 1965 hydrologic study by DWR, and the 1970 USDA-SCS Hayfork Valley Water Investigation Report." The report further concluded that low streamflows have been found to damage fisheries and wildlife, restrict available water supply for fire suppression, limit water supply for residential, agricultural and industrial needs, and to lower water quality for other beneficial uses.
Only an estimated 13% of water currently diverted from Hayfork Creek and its tributaries in the CWR area have recognized permits (Trinity County, 1987). Most water users operate under riparian rights for which no statement of diversion and use has been filed. Build-out on existing undeveloped riparian parcels can be expected to double water demands. A survey of parcels owners who are currently using water indicated that they can be expected to increase their use of water in the future. Many survey respondents envisioned expanded water systems, new fences to increase pasture lands, and larger gardens in the future. The SCS (1970) reported that ground water is limited in the Hayfork Valley, so drilling of wells will be of limited utility in meeting future water needs.
In 1987, Trinity County declared the Hayfork watershed (from Little Creek to its headwaters above Wildwood) to be a Critical Water Resources (CWR) area. The Barker Creek, Carr Creek, and Tule Creek sub-basins had already been designated CWR areas prior to the 1987 designation of the larger Hayfork watershed. Within the 1987 CWR area, current riparian parcels will retain full riparian water rights under California law. However, no sub-division of parcels can take place unless a water supply is secured other than through riparian rights. The intent of this action was to reduce demand and pressure on already critically limited water supplies.
This ordinance supported the majority viewpoint of local respondents when they indicated that they planned to expand their own use, but thought that no additional extraction from new water users should be allowed. Unless a local ordinance is passed, or formal water rights adjudication takes place, additional use on existing parcels could still dry up Hayfork Creek and some tributaries. California water law does not disallow new riparian water use even if it dries up a stream and depletes flows to downstream, long-time riparian water rights holders.
California Agency Findings on Local Uses of Water
The agencies with jurisdiction over water and fisheries in California have made several significant decisions regarding water use and water rights. In 1956, a Department of Water Resources (DWR) decision denied application for a water right on Tule Creek based on a finding that there was no unappropriated water left in the basin. Tule Creek goes dry in its lowest two miles after June in most years (Trinity County, 1986).
The SWRCB (1986) investigated water use by Big Creek Ranch as a result of a protest lodged by Trinity County Water District #1 which supplies water to the community of Hayfork. The complaint alleged that the owner of the ranch was proposing to supply water for a planned biomass plant and that he had significantly increased the amount of diverted water, as well as ditch capacity. SWRCB (1986) findings included:
* Reasonable use of water was 1 cubic foot per second (cfs) for every 65 acres of land irrigated and a maximum diversion of 4.7 cfs.
* Areas to the west of Big Creek were flooded so deep that growth of desirable pasture grasses was impeded.
* Over-diversion in Big Creek unnecessarily reduced flows for fish, and the excess diverted water re-entered the channel at much higher temperatures.
* The pre-1914 right associated with Big Creek Ranch is riparian, not appropriative.
The report (SWRCB, 1986) concluded that:
" Use of excessive quantities of water coupled with large amounts of runoff on Big Creek Ranch during 1985, .... constituted an unreasonable diversion and use of water. Therefore, you are hereby directed to make changes to your diversion and use of water from Big Creek so as to prevent an unreasonable or wasteful diversion and use of water from occurring."
A memo from the California Department of Fish and Game about the Big Creek Ranch diversion (CDFG, 1985) described an uncooperative relationship with the landowner. The memo alleged that access to the fish ladder had been blocked by low flows, and that this condition prevented fish from reaching extensive areas of moderate habitat quality upstream from the diversion dam. Native materials in the channel were used to direct additional flows into the irrigation diversion. The memo concluded that "excessive diversion likely causes losses of thousands of steelhead annually.
Further Findings by Trinity County
Trinity County (1988b) prepared a Negative Declaration for additional water diversion at the Trinity County Fairgrounds in 1988. The report described general conditions in the Hayfork Valley, including problems caused by current diversion systems and their impact on water quality in Hayfork Creek. Leaks in irrigation ditches and over-irrigation were found to increase ground water pressure, which caused Sierra-Pacific ponds to leak and allowed substances from under a large log deck and from individual septic systems to leach into Hayfork Creek (see water pollution section).
The report also identified the East Fork Ranch Diversion of Hayfork Creek below Wildwood as the cause for significant water supply problems. The diversion had completely dewatered the creek during several months of 1987. This diversion may have been in violation of CDFG Code #5937, which requires that the amount of water flowing over any dam must be sufficient to allow for fish passage. The East Fork Ranch and Big Creek Ranch both were reported to be using flood irrigation and unlined diversion ditches that leaked excessively. The Trinity County report concluded that:
"The result of large amounts of water diverted in the Hayfork Creek basin without the benefit of water conservation methods, or compliance with Fish and Game Code #5937, has been a serious degradation of instream habitat, as well as [caused] conflicts between water users and unavailability of water for all beneficial uses.
Status of Water Issues During Report Period
The following information was gathered during field visits, by interviewing agency staff and by reviewing file information. Despite the SWRCB findings (1986) of unreasonable use by Big Creek Ranch, and orders to the land owner to change practices, there was no apparent follow up with enforcement. The conflict between Trinity County Water District #1 and the Big Creek Ranch was resolved, and this may have had some bearing on why the decision was never enforced. Big Creek Ranch has not decreased its diversion as requested by the SWRCB. Instead, storage ponds have been constructed for water taken under riparian rights. Big Creek Ranch has also initiated water transfers to non-riparian parcels in Duncan Gulch. Both pond construction and diversion to another drainage are not allowed for riparian water rights holders under California law (SWRCB, 1990). While the California Department of Fish and Game is recommending mitigation to control erosion from water diverted into Duncan Gulch, the Department holds that it does not have authority to stop the diversion (Phil Baker, personal communication).
CDFG is currently challenging the East Fork Ranch diversion dam under codes that prohibit structures that block upstream migration of fish. During the time the authors of this report were in the field in 1992, the East Fork Ranch diversion ditch, including sections that cross National Forest lands, was substantially modified. Explosives were used to rebuild the ditch. As a result, large amounts of sharp, angular rock were deposited on a rocky bench adjacent to the stream that receives high recreational use by swimmers. Large amounts of rock were also deposited in a deep pool at the base of a waterfall and in a bedrock chute upstream, which could be causing problems for migrating steelhead. Geologists who participated in the field tour found that the ditch modifications had greatly increased the risk of future erosion, slope failure and sediment delivery to Hayfork Creek
.The USFS was appraised of changes in potential slope stability, but contended that it had no jurisdiction because the existing water right was established prior to 1914 (Roger Jaegel, personal communication). However, State water codes stipulate that ditches for riparian use water diversions must not adversely effect the land over which they pass. Prior use has no bearing on these statutes (Mike Meinz, personal communication).
Direct observation during the summer of 1992 and interviews with CDFG staff, revealed that other streams in Hayfork Valley sometimes lack surface flow as a result of diversion. These streams include lower Salt Creek, some Salt Creek tributaries, Carr Creek, Tule Creek and Barker Creek. In more normal rain years, Barker Creek and Salt Creek usually maintain some surface flow (Tom Stokely, personal communication). Carr Creek has run underground in late summer as a result of aggradation following the 1964 Hayfork Summit fire (Claude McAlexander, personal communication).
Numerous small ponds were found to exist in gulches along tributaries to Hayfork Creek, which may be a violation of California water law. These impoundments may not be depleting flows enough to seriously impact salmonids, but many harbor warm water fish species which could escape to Hayfork Creek and the South Fork Trinity River and cause problems for salmonids (see Chapter III).
"Water quality in the middle reach of Hayfork Creekwas visibly poor. Dark sludge on the banks and foamfloating on the water were frequently observed, as weresewer outfalls. Sawmill pond seepage also enteredthe creek at the upper end of this reach. Algae growth covered most substrates, and large amounts of suspendedsolids were observed....Several dead fish includingsteelhead were observed." Frink et al. (1990)
In the summer of 1990, habitat typing crews could not conduct dive counts of juvenile steelhead in the vicinity of the town of Hayfork because of serious concerns for the health of the survey crew. Local residents told authors of this plan of severe skin rashes that resulted from exposure to the water in this reach. Older residents, however, remembered swimming in the cool creek in the early 1950's during the summer months. In the entire South Fork Trinity River basin, problems with water quality are mainly related to low flows and high stream temperatures, but a serious local problem exists in Hayfork Valley. The one operating mill in the valley has taken steps to reduce problems. The other mills in the basin are no longer operating, so the amount of pollutants entering the creek may be somewhat lower than in the past. Although the quantity of pollutants may not be great, decreased flows concentrate them and increase their impact on fisheries.
Industrial Sources
In the 1950's and 1960's, the lumber mill at Wildwood was the major source of water pollution in the South Fork Trinity River basin. Long time local residents describe a seven inch pipe that discharged industrial effluent and raw sewage into Hayfork Creek. Problems with pollutants and increased biological oxygen demand (B.O.D.) caused occasional fish kills. After passage of the National Pollution Discharge Elimination Act in 1973, the North Coast Regional Water Quality Control Board (NCRWQCB) began an in-depth investigation of problems with water pollution in Hayfork Creek and at Hyampom. Most of the information below is taken from NCRWQCB files (1973-1978).
The Sierra Pacific Mill in Hayfork was the subject of intense study by the NCRWQCB in the 1970's. A shift in the periphyton (algae) community was found below the mill because of nutrient input from bark residues. Sprinklers on the log decks at the mill caused leaching of water down to an impermeable, naturally occurring clay layer beneath the valley, and then into Hayfork Creek. Anaerobic bacteria deoxygenated the water and caused a chemical and biological reaction which lead to a bloom of iron bacteria. The NCRWQCB files stated that "heavy concentrations of iron bacteria and algae thriving in the nutrient rich water derived from wood waste significantly discolored Hayfork Creek and cause water quality degradation." This problem has been largely abated, since the log deck was paved and runoff is caught and recycled (Al Wellman, personal communication). In the past, a headwater swale of Dobbins Gulch was filled with mill waste. Decomposition and ground water percolation have created a nutrient enriched leachate problem similar to that formerly occurring at the log deck site (Al Wellman, personal communication).
The mill pond at Sierra Pacific is where recycled water from mill operations is currently stored. During large storm events, the mill pond has spilled into Big Creek and Hayfork Creek, although dilution probably prevented any serious harm to biota during these high runoff periods (CH2M Hill, 1988). The pond capacity has also been enlarged since the spilling occurred (Tom Stokely, personal communication). Excess ground water pressure caused by over-irrigation of adjacent agricultural lands and leakage from the upslope Jackson diversion ditch sometimes breaches the lining of the mill pond in summer (Trinity County, 1988). Seepage from the mill pond during low flows would be less diluted, and therefore more harmful, but potential problems related to this leak have not been studied. Trinity County has expressed concern about the sludge that builds up in the bottom of the mill pond and has required the mill owner to test it for toxics and dispose of it properly (Trinity County, 1988b).
The abandoned mill site at Hyampom has been recognized as a Federal Superfund toxic waste site (Tom Stokely, personal communication). The mill operated a dip tank for wood in an old dry kiln. The Trinity County Department of Health Services had to empty the dip tank after the mill went bankrupt to avoid a public health hazard. Contaminated soil still exists on the site. Soil and groundwater contamination at the abandoned SPI planer mill on Tule Creek were tested by the California Department of Health Services in 1988, but no PCP or TCP were found (Tom Stokely, personal communication).
Domestic Pollution Sources
The NCRWQCB (1976) studied Hayfork Valley septic systems and found that over 50% were not functioning properly. The shallow clay pan beneath the ground surface keeps septic leachates from percolating deep into the ground and instead directs it horizontally into surface waters. The problems noted by Frink et al. (1990) with water quality in Hayfork Creek are related, in part, to this phenomenon. Increased ground water pressure from the leaky Jackson Diversion Ditch compounds this problem (Trinity County, 1988b). Problems from leaching of septic systems may also be contributing to the high levels of E. coli bacteria found in Ewing Gulch, which flows through the town of Hayfork.
No study has been conducted, but problems could potentially arise from a recently retired land fill located in the gulch above the Trinity County Fairgrounds. Any problems will probably occur first in ground water. Given the nature of the underlying geology of the Hayfork Valley, however, any runoff from this site will flow along the clay layer and into Hayfork Creek. Chapter 6 continued