In 2015, a Nevada County man believed to be running a marijuana cultivation site hauled a 500-gallon tank into Yuba County and filled it by diverting water from the Yuba River, which is not illegal under current law.

Yuba County supervisors and the district attorney recently signed a letter of support for a bill that would amend the Water Code to address that type of situation.

“Water rights and water ownership is very legally complicated,” said District Attorney Patrick McGrath. “The way it sits now in California, water that is in the rivers is not subject to theft laws. It isn’t necessarily owned by someone, rather it’s considered to be owned by everyone.”

Following the incident involving the Nevada County man, McGrath reached out to the State Water Resources Control Board – which oversees state water rights for large scale diversions typically regarding agricultural disputes – to see if anything could be changed in the current law.

The state water board suggested McGrath and the county look at a bill related to cannabis cultivation – AB 1254 – to try and insert language that would add a provision to the bill addressing river water diversion.

McGrath submitted language to the author of the bill that would make unauthorized diversions a misdemeanor crime if the water is taken for the purpose of marijuana cultivation and the individual does not have the proper licensing.

“Our focus was really on the rogue growers that are bypassing the new commercial marijuana cultivation regulations and have chosen to not get a license or be regulated,” McGrath said. “If those folks are going to be diverting

water to assist their grow, then that would become a misdemeanor.”

During the recent drought, McGrath said officials from Butte County and Yuba County noticed more incidents where water was being diverted from major rivers by individuals that did not technically have water rights.

However, a recent California appellate case ruled that theft statutes could not be applied to the theft of river water, essentially taking legal tools away from prosecutors in both counties when trying to address “unlawful” diversions.

In a letter of support for the bill penned by the Yuba County Board of Supervisors Chairman Randy Fletcher and McGrath, the change in law regarding recreational marijuana has the potential for enhancing the problem of river water diversions in rural counties.

According to the letter, “AB 1254 will give local governments critical tools to ensure that local water resources are properly used by only those lawfully licensed to cultivate cannabis, and that violations can be effectively addressed at

the local level without the use of limited state resources.”

McGrath said if the bill becomes law, it would not only impact his office’s ability to address incidents involving river water diversions, but it would also benefit the farmers and irrigation districts that rely on specific river allocations for farming efforts.

“There are rights attached to flowing water, and somewhere along the line, when you do that, you are actually interfering with the water rights someone else has,” McGrath said. “Although we cannot call it stealing, you are unlawfully diverting the water.”

The bill is being reviewed in the Assembly Water, Parks and Wildlife Committee. If the committee approves the bill, it will then need to be passed by the Legislature before it is sent to the governor’s desk.

CONTACT Jake Abbott at 749-4769, and on Twitter (@JakeAbbott_AD).

 

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