THE STONY CREEK WATER WARS - DIVERSION LIMITS IN THE DECREE and EXCESS DIVERSIONS BY PLAINTIFF UNITED STATES OF AMERICA

THE STONY CREEK WATER WARS
Glenn County - Tehama County - Colusa County , California.
(c) 2009, Mike Barkley

DIVERSION LIMITS IN THE DECREE and EXCESS DIVERSIONS BY PLAINTIFF UNITED STATES OF AMERICA
(and Glenn-Colusa Irrigation District)

[Compiled from the sources indicated. This is a work in progress.

Important because shows the extent to which the Court (and its Water Master) favors the plaintiff in its supervision of the Decree. ]

OUTLINE:

1. DIVERSION LIMITS IN THE DECREE
- A. U.S. Government
- B. (Other) Decree Appropriation Rights Schedule
- C. Decree Riparian Schedule
- D. GCID
- E. GRAND TOTAL Allowed by the Decree

2. REPORTED DIVERSIONS OF STONY CREEK WATERS BY THE UNITED STATES OF AMERICA
- A. USA Decree limits compared with USA storage
- B. 1930 - 1947 USA Diversions reported via Water Master reports
- C. 1947 - 1970 USA Diversions reported via SWRCB Ap. File #2212, contrasted with actual irrigated acreage where available
- D. 1971 - 1980 USA Diversions reported via SWRCB Ap. File #18115, (NONE reported)
- E. 1970 - 1983 USA Diversions shown in 07/14/2009 response to FOIA Request to Reclamation, contrasted with actual irrigated acreage where available
- F. USA Diversions shown:
- - i. 1981 - 1990 In SWRCB Ap 18115 file, annual Progress Report by Permittee, contrasted with actual irrigated acreage where available
- - ii. 1991 - 2006, In SWRCB Supplemental Statement of Water Diversion and Use # S006353, contrasted with actual irrigated acreage where available
- - iii. in miscellaneous other places
- G. 1985 - 2008 USA Diversions shown on the Reclamation web site, contrasted with actual irrigated acreage where available
- H. 1991 - 2008 Diversions to USA's Tehama-Colusa Canal
- I . Diversions by U.S. Forest Service to Letts lake:
- J . Other Diversions by U.S. Forest Service & Bureau of Land Management in the Stony Creek Watershed
- K. Diversions to Others by USA
- L. Santa Clara Power Plant Operations
- M. Elk Creek Municipal Water System [Elk Creek Community Service District?] and the Lumber Mill
- N. The Decree does not provide for evaporation from the reservoirs
- O. Bar graph of excess Orland Project diversions (a part of excess USA diversions) for years for which we have net irrigated acreage

3. 1930 - 1960 REPORTED DIVERSIONS OF STONY CREEK WATERS BY GLENN-COLUSA IRRIGATION DISTRICT,

4. LIMITS & USAGE CONTRASTED WITH TOTAL ANNUAL STREAM FLOWS
- A. 1903 - 1955 Stream Flows per US Army Corps of Engineers, sorted in descending order
- B. 1955 - 1990 Stream Flows not yet found
- C. 1991 - 2008 Stream Flows per Reclamation contrasted with Stream Flows per DWR

1. DIVERSION LIMITS IN THE DECREE

The Decree limits all parties (including plaintiff) to "the rights specified, determined and allowed by this decree," etc., at pp. 177-178, in the first sentence of Paragraph XVII. The United States of America is the plaintiff, not Reclamation, and United States of America is the party bound by the Decree, not just Reclamation. That would seem to be USA, Reclamation, Army Corps of Engineers, Central Valley Project, Tehama-Colusa Canal Authority, Fish and Wildlife, the United States Courts, Congress, the Water Master, everyone and every entity in the United States government.

Diversions allowed by the Decree, amount slots with a "?" are open amounts to be furnished by proof, analysis and agreement, or Court Declaration:

A. U.S. GOVERNMENT: 85,050 acre-feet, United States of America (including Reclamation), Decree p. 137 Para. VIII(1) and p. 141 explaining (1) (3) (5) (6) and (7) [21000 * 4.05 = 85,050 which is exactly the number on pp. 137 & 142 of the Decree, exactly the number at pp. 203 & 236 of the Findings of Fact & Conclusions of Law, & exactly the number in USA expert testimony at Angle Transcript p. 4367 handwritten (4312 typed); 4.05 standard repeated in numerous other places, see compilation at http://www.mjbarkl.com/affirm.htm Up to 51,000 " - storage, p. 137, Para VIII(2) and p. 142 para. (b) Up to 133,650 " - diversion, p. 138, Para VIII(4) and p. 142 para. (b) - 250 cfs * 1.98 * 270 days maximum [rainfall] season (10/15 - 7/15) Less (184,650) in excess of 4.05 per acre for 21,000 acres (p. 137), although more may be allowed under the 2 Loopholes at p. 142 para. (b) if beneficial use during initial reclamation, or for one of the 4 use categories if from storage (p. 142), etc. (p. 141, not cumulative, or rather "do not accumulate") [see LOOPHOLE descriptions below] ---------- 85,050 acre-feet Project maximum ( 7,185.02) Less to get down to acreage for which subscriptions were actually sold per USA filing of 09/05/2008 Doc. #277-2 p. 13, 20,859 acres, (http://www.mjbarkl.com/277-1.pdf ) less non-project per plaintiff's Doc. #278 Exhibit 10 (http://www.mjbarkl.com/278-9.pdf) 1,633.08 acres, net of 19,225.92 acres, times 4.05 a-f per acre yields their current authorized allocation. ( ? ) Less reduction for urbanization and severance from Project delivery system (see complaint for instance at http://local.yahoo.com/info-21806926-orland-unit-water-users-association-orland ) ( ? ) Less taken for Tehama-Colusa Canal right-of-way ( ? ) Less taken for Interstate 5 right-of-way 6613.97 Add back 1,633.08 acres outside of project allowed in by Judge Karlton 02/11/2009, Doc #295 including 105.5 acres in Sections 27, 28 and 33 T22N R5W many miles outside the Project footprint (6,613.97 a-f ?), at 4.05 a-f/a.; to the extent that the average demand for the totality of this addition exceeds 4.05 a-f/a, other project lands will have to be reduced or USA will have to draw from rights purchased in the watershed outside the project to supply the excess. --------- 84,478.95 a-f Current Project allocation (including conveyance, waste, & spillage; = 20859 * 4.05) [Title to Hall & Scearce appropriations held by USA, see USA USCA 03/25/1992 brief p. 8 fn 7 & p. 9] 1,099 Hall maximum (or 1,198 a-f; 2396 a-f / 2, per sheet 5, 10/13/1925 Findings, not 1,099) * ( 734.5 ) Less reduction by settlement, Doc #211 attachment, limited to 4.05 acre-feet for 90 acres, 364.5 a-f; balance of land to be taken into Project * ( ? ) Hall stock watering per 10/29/1924 stipulation, Angle Archives box #6 Large Brown Envelope #2 24 Stock watering by settlement, Doc #211 attachment, 24 or 48 (Wackerman) 1,099 Scearce maximum (or 1,198 a-f; 2396 a-f / 2, per sheet 5, 10/13/1925 Findings, not 1,099) * ( 9.08) Less reduction by settlement, Doc #245 p. 4 (adding machine tape) -0- Transfer Water and Excess Water, Doc #245, pp. 6-7, are not authorized by the Decree * ( ? ) Scearce stock watering per 04/02/1926 stipulation, Angle Archives box #6 Large Brown Envelope #3 24 Stock watering by settlement, Doc #211 attachment, 24 or 48 (Reimers) ( ? ) Less relevant portions of lands taken, if any, in Docket #6290, USDC Northern District of California, for Shasta Tracy Transmission Line, USA v. Reimers, et al. (USA v. 199.4 Acres of Land in Glenn County), #6291 (v. 487.3 Acres...Tehama), #6293 (v. 336.93 Acres...Tehama); #8428 97.2 acres Tehama & Colusa; #8429 167.61 acres Tehama; USA v. Reimers, et al. (USA v. 115.85 Acres of Land in Glenn County), #8430 : 7.40 Acres of Land in Colusa & Tehama Counties, # ----; #8732 330.82 Acres in Tehama County, Vestal et al.; #8780 277.0 Acres Glenn County, Morrissey, et al.; etc. ( ? ) Less duplicate portions in Wackerman & Reimers settlements that are also in 1,633.08 acres outside of project allowed in by Judge Karlton 02/11/2009, Doc #295 [ see analysis in http://www.mjbarkl.com/brownel3.htm ; amount needs further proof ] 52.5 Grindstone Indian Reservation 18.75 U.S. Forest Service right 07/21/1870, via Kesselring Ditch purchased from Matlicks 12/26/1933 & 09/12/1936, part of Stonyford Properties right via Kesselrings & Pearson[?] Doc. #58, Murray Declaration & Kienlen Declaration ; 1937 water master report first shows 19 a-f for Mendocino National Forest 37.13 Forest Service from Schaefer & Shimmel 04/15/1890, assigned to Colusa County, Doc. #58, Kienlen Declaration, SWRCB Ap. #27382 on assignment for 40 a-f? [amount depends on 1) error in decree, both riparian & appropriative show same location? 2) which appropriation was abandoned, 3) whether or not an appropriation can be abandoned since it is decreed, etc.] ? Other U.S. Forest Service right purchases at Stonyford & Fouts Springs; 1932 water master report shows total Fouts 583.1, 1933 shows 583.1 total assigned to Matlick & Wells? 1936 report stops showing Fouts separately, and shows a drop of 435.1 a-f between Matlick & Wells; It is difficult to reconcile the various water master reports among themselves and with the historic Fouts right - is the Forest Service using water at Fouts that went from Stonyford Properties, Inc. to Kesselring to Matlick & Wells?; 138 water master declaration attached to Doc #75 also mentions Forest Service right for 138 a-f from J.O. Brittan [St. John's Outing Club, Brittan Ditch, from Virginia Creek, enters Middle Fork opposite Paradise Creek?] in addition to 583 a-f for Fouts Springs; Need to trace metes & bounds for Fouts & Kesselring? Reclamation & Forest Service letters attached to Doc #75 discuss SWRCB Aps 23498,23499,23500,23501 all filed 05/05/1970 & Letts Lake; the Reclamation letter mentions the 583.1 Fouts right ---------- 86,227.75 a-f, sub-total authorized Government allocation 05/29/2009 [but Project limited to actual acres irrigated x 4.05 ; For instance, per Reclamation 1989 report, 16457 acres * 4.05 totalling 66,650.85 a-f, for a year they reported to SWRCB project use of 95,826 a-f ] + ? Loophole #1, Excess required during initial reclamation, p. 142 + ? LOOPHOLE #2, p. 143 (favoring the Project, of course) which MAY increase Project allowances for beneficial uses FROM STORAGE ONLY, for "the aforesaid beneficial uses in excess of such basic requirements (p. 143)" - "necessary and beneficial uses of amounts of water in excess of such basic requirements, as demanded by (p. 142)": 1) changing crop conditions, such as more extensive cultivation of forage crops 2) heavier applications in times of drought or severe drying winds, 3) occasional maturing of additional cuttings of forage, 4) and the like ( meaning? ), limited to the lesser of 51,000 a-f MAXIMUM STORAGE or flow available for storage (and that's at the point of release, not diversion, so less transpiration & evaporation and less conveyance losses to point of diversion); Loophole #2 is in tricky language, but at the very least probably does not allow the massive waste spillage the project shows in Garland reports -- contrast this Loophole with the rigid standards applied against defendants. To monitor this excess would require monitoring usage for each of those 4 categories; the words "limited, as against the parties defendant herein" may be a deception, since the two "Loopholes" would seem to make the limitation somewhat open-ended. In no way does this increase USA allocation to cover Stony Gorge or Black Butte NOTE also that during loophole #1, "reclamation", diversions from natural flow may be as much as 85050+28350=113400 a-f, which may suggest a Loophole #2 limit of 5.4 a-f [113,400 / 21000 = 5.4; and yet NO upstream user was awarded more than 5.0 a-f plus conveyance regardless of soil type] for the whole project, but still, 2 or 3 of the 4 categories are parcel-specific. Reclamation has regularly affirmed a lower per-acre requirement for the Project, see affirmations collected at http://www.mjbarkl.com/affirm.htm . In the Angle Transcript and in the Decree Appropriation Schedule, no parcel in the watershed was awarded more than 5 a-f/a plus 25% conveyance so you quickly get to the conclusion Reclamation has been taking more than the Decree allowed and wasting it, all in violation of the Decree, the California Constitution, and the Water Code. Existing acreage at 4.05 a-f must be subtracted from both types of excesses to leave the balance chargeable against storage only, and the remainder must not be unreasonable - for Loophole #1, initial reclamation and for Loophole #2 the "use categories" 1, 3, & 4 listed above tallies of acreage and usage would need to be kept to monitor compliance, (for use #2 for wind, a log of days of that wind and wind velocity should be kept) and for those categories the standards used in the transcripts to arrive at the 4.05 a-f number would control, crop by crop, soil by soil, parcel by parcel, see for instance Angle Transcript pp. 3107-3129 (initial extensive USA expert proof of 4.05 a-f/acre at point of diversion, retranscribed at http://www.mjbarkl.com/harding.htm ); compilation of numerous affirmations of this expert proof at http://www.mjbarkl.com/affirm.htm . Every use of the loopholes MUST BE DEFENDED as a departure from USA's proofs. Having made and reaffirmed its proof and written its Decree, USA is bound by all that. Of course any annual tallies under this Loophole #2 would be offset by reductions down to the actual acreage irrigated in any specific year [acreage not irrigated * 4.05 a-f = reduction), which may produce a wash with the allowable excess or less, substantially less ---------- 86,227.75 a-f, Total authorized Government allocation ---------- B. (OTHER) APPROPRIATION RIGHTS SCHEDULE: 13,208 Adding machine tape of Appropriation Schedule, Decree, pp. 121-134, excluding GCID, Scearce, Hall, & USA Less rights taken by USA for Stony Gorge, for which assessments were never paid although those lands are apparently still being irrigated since they are inundated (Report of Water Master for 1931, Archive box 6 large Brown Envelope #2): ( 143) Bayley, Decree p. 127 ( 205) Gatliff, Decree p. 126 ( 99) Gollnick, Decree p. 127 ( 313) Johansen, all or part of 313, less 27 a-f per, Decree p. 124 27 Johansen part not under Stony Gorge, per 1944 Water Master report, Archive box 6, Large Brown Envelope #2 - [should be 24, not 27?] Decree p. 125 ( 434) True, Decree p. 124 ( ?) Mulford, Troxel, Provence, p. 123, all from Troxel ditch POD in the quarter/quarter where the Dam is [ NE 1/4 of SE 1/4 S16 T20N R6W MD B & M ]; how was that handled? * ( 165) Less 30 acres of Kesselring 61.4 acres Salt Creek entitlement given up on 01/14/1933 Archive box 5 file 23 of 39 , Decree p. 131 [compare appropriated vs. riparian? both are 30 acres in SE NE Section 32, of which at least 20 acres are duplicated but more likely all - gave up assessed appropriated part as redundant, since riparian lands were not assessed water master fees? so actually this should be less 165 a-f as redundant with riparian schedule] * ( 75) Less 15 acres of Retzloff given up on 03/09/1932, Decree p. 134 Less acquisitions by U.S. Forest Service (moved to government right, above): ( ? ) Fouts Springs [ is this in two places? both Fouts, & Wells & Matlick? ] ( 138) J.O. Brittan per water master declaration Doc #75 Forest Service right for 138 a-f [St. John's Outing Club, Brittan Ditch, from Virginia Creek, enters Middle Fork opposite Paradise Creek? Eriksen called it North Fork at Transcript p. 4276-8] * ( ?) Less reduction in Colusa & Forestry right in settlement, Doc. #94, net of Kesselring surrender portion which is open to question since they surrendered the appropriation, not the riparian duplicate right, although the riparian right may have been severed by subdivision & sale Less taken by U.S. Army Corps of Engineers for Black Butte Dam & Reservoir (US v. 3,595.98 Acres of Land , and related subsquent similarly named filings...in Tehama & Glenn Counties, U.S.D.C. Northern District California #8065, 8178, 8220, 8339, 8464, 8638 ; see U.S. Army Corps of Engineers Black Butte Project parcel maps at http://www.mjbarkl.com/bbl1.pdf , bbl1-a.pdf , and bbl2.pdf from USACE FOIA request ) ( 20) Mallon & Blevins, Decree p. 125 (USACE parcel 104) ( 25) G.W. Markham, Decree p. 132 (USACE parcel 116 - Left Bank) ---------- 11,618 Net remaining appropriation schedule (reduce for tributaries ---------- that dry up early, 1200 a-f/year, rough schedule at http://www.mjbarkl.com/dryup.txt) C. RIPARIAN SCHEDULE: 14,514.57 Adding machine tape of Riparian Schedule, Decree pp. 161-165, decreasing over time per pp. 166 - 168 ((acres irrigated + acres not irrigated) * per acre, extended, totalled) (Kesselring entry is ambiguous, and this total could be off a bit) Less taken by U.S. Army Corps of Engineers for Black Butte Dam & Reservoir (see Black Butte parcel maps cited above): ( 3,031.5) Brownell, estimated 645 acres of their 1,535 riparian acres, Decree p. 161-162 [see reconciliation schedule at http://www.mjbarkl.com/brownel3.htm] ( 310) Flanagan, at least 62 acres of 122 acres, Decree p. 162 (USACE parcel 100 and 101, not Section 29) ( 750) G.W. Markham, Decree p. 164 (120 a * 6.25, USACE parcel 116) ( 2,025) C.L. Simpson, p. 164 (USACE parcel 200) Less duplicate portions of 105.5 acres allowed into the Project by Judge Karlton 02/11/2009, Doc #295 in Sections 27, 28 and 33 T22N R5W outside of the Project boundaries: ( 47) Clemens - portion of Brownell 40 NWSW 27 T22N R5W (10 acres) ( 54.05) Siam - portion of Brownell 40 NWSE 28 T22N R5W (11.5 a) ( 35.25) Siam - portion of Brownell 40 SWSE 28 T22N R5W (7.5 a) ( 6.58) Siam - portion of Brownell 40 SESE 28 T22N R5W (1.4 a) ( ? ) Less other riparian lands severed from stream by subdivision & sale ---------- 8,255.19 Net remaining riparian schedule ---------- D. GCID: Up to 20,315 Glenn-Colusa Irrigation District (GCID), p. 170, "so much thereof as may be available"; traded to Reclamation under Contract 14-06-200-855A in violation of Decree? * [GCID often claims right to excess diversions, as in paragraphs 2.2 & 2.13 of doc 59 in 91-1128, but such right does not seem to be in the Decree? p. 170 language re 20,315: "that said right, however, is subsequent in point of time as to its call upon the waters of the stream", meaning? what call? 1907 GCID/Reclamation stip provided that all water in excess of 265 cfs & stored in East park for the entire Stony system belonged to GCID, but p. 170 of Decree recognized that as only between GCID & Reclamation and limited all GCID to 20,315 & 500 cfs] (20,315 ) This right was effectively stripped from GCID under Judge Levi's 10/08/1992 Order in USDC-ED CA 91-1128 in 1995, so it may be correct to simply delete this 20,315 a-f as an Angle allocation, doc 250 in Angle Record on GCID siphon not an abandonment of right notwithstanding. ---------- -0- Net remaining GCID right E. GRAND TOTAL ALLOWED BY THE DECREE: ---------- 106,100.94 Total current authorized allocations in acre-feet under ========== the Decree, all parties

Reduce for tributaries that are dry later in season to get actual annual limit (average of 1240 acre-feet, see rough schedule at http://www.mjbarkl.com/dryup.txt) ; Reduce for upstream allocations not actually used--fallowed land, "farmer fatigue", change in land use, right-holder declining in health or dying, etc.; no, these flows do not increase water available for USA.

* Reductions to defendant allocations, flagged "*", are not permitted by the Decree, and in most instances represent the history of the Court ignoring increased takings by USA while imposing decreases on defendants

2. REPORTED DIVERSIONS OF STONY CREEK WATERS BY THE UNITED STATES OF AMERICA

A. Compare limits above with Reclamation Storage permits, plaintiff Doc #277-2, pp. 4-5 (http://www.mjbarkl.com/277-1.pdf , page numbers are in the document, not pdf numbers):

50,900 a-f East Park Reservoir 50,200 Stony Gorge 160,000 Black Butte ---------- 261,100 Sub-total storage ? Capacity behind the 3 diversion dams [these amounts are part of the conveyance in the 4.05 a-f per acre initially shown under part 1. above] ? Capacity behind the TCC CHO dam 456 Letts Lake on Letts Creek to South Fork Big Stony ---------- 261,556 Total storage 86,227.75 a-f, Total AUTHORIZED Government allocation 05/30/2009 (above), annual allowable (but could be a lot less if less land irrigated, or more if loopholes defended) ---------- 175,328.25 amount which must be released (plus amounts equal to that ========== used from natural flow) each year reservoirs are full, without any United States of America use whatsoever, not Project, not CVP, not Cal-Fed, not sale, not gift, not transfer, not carryover, not recreation, not flood control, not anything

B. Contrast the following diversions with the 86,227.75 acre-feet annually allowed USA under the Decree (yes, it is appropriate to adjust for the reductions above in the years they occurred, but still, there are excess diversions in most years, often massive excess diversions). Since all these numbers are from reports by the USA, they might properly be regarded as underreported, especially 1984-1990:

Per Reports of the Water Master (including Hall & Scearce, Indian rights, and waste & spillage that were included in the decreed rights); numbers were furnished to the Water Master by the Project and then included in his reports:

In Angle Archives, box #6, large brown envelope #2, "Report of Water Master, Season of" (total of both Canals, Hall & Scearce, Indian Rights, Waste & Spillage):

Total USA Report Season Diversion Date of Water Master --------- ---------- ------ -------------- In Total USA 79,891.6 a-f 12/29/1930 1930 (E.T. Eriksen) Diversion: 65,152 a-f 12/01/1931 1931 "Spilled from 81,204.2 a-f 12/21/1932 1932 (E.A. Garland) North & 86,378.2 a-f 01/20/1934 1933 South Canals" 89,896.48 a-f 01/22/1935 1934 ------------- 80,375.1 a-f 01/29/1936 1935 3,760 107,384.2 a-f 03/23/1937 1936 10,291 89,071.21 a-f 02/23/1938 1937 6,982 98,030.59 a-f 04/04/1939 1938 12,954 96,046.26 a-f 12/06/1939 1939 4,055 100,799.5 a-f 02/07/1941 1940 10,271 "or wasted" 97,423 a-f 01/28/1942 1941 9,672 "or wasted" 94,795 a-f 01/07/1943 1942 10,430 "or wasted" 107,263 a-f 02/09/1944 1943 7,305 "or wasted" 108,619 a-f 02/06/1945 1944 5,556 "or wasted" 113,620.68 a-f 03/05/1946 1945 6,403 "or wasted" 124,094 a-f 03/13/1947 1946 7,635 "or wasted"

1946 was the last year the Water Master reported Diversion figures to the Court. Many years the "Spilled or Wasted" amounts exceeded the entirety of actual upstream diversions; those "waste" amounts should be part of the 4.05 a-f per acre since the 4.05 included conveyance losses.

C. In State Water Resources Control Board Application File #2212, Report of Licensee for Years [Reports every 3 years], "Licensee" being Reclamation:

1926 14,674 1927 14,681 1928 14,465 1929 12,950 1930 14,091 57,068.55 1931 13,895 56,274.75 1932 14,059 56,938.95 1933 13,946 56,481.30 1934 14,000 56,700,00 1935 14,000 56,700,00 1936 14,000 56,700,00 06/30/1943 field visit ----------------------- Project x 4.05 a-f = Acres Angle Limit Supplied [Max allowed] -------- ------------- 1938 14,978 60,660.90 1939 15,505 62,795.25 1940 15,534 62,912.70 1941 15,694 63,560.70 1942 16,082 65,132.10 Ap. 02212 ----------------------- Project x 4.05 a-f = Acres Angle Limit Supplied [Max allowed] -------- ------------- 1944 16,400 66,420.00 1945 16,600 67,230.00 1946 16,700 67,635.00 74,270 a-f year 1947 15,959 64,933.95 96,942 a-f year 1948 16,566 67,092.30 115,385 a-f year 1949 /s/ R.W. Hollis 16,566 67,092.30 estimate for Reclamation "(i.e. In 1949, 16,706 acres were irrigated, the total supply was 114,327 acre feet, and the net delivered to the land was 79,350 acre feet.)" OUWUA 10/17/1980 protest, SWRCB Ap. A26378 03/16/1950 - 10/25/1950 117/381 a-f for 03/17/1951 - 11/13/1951 114,454 a-f for 03/27/1952 - 11/13/1952 125,276 a-f for approximately 17,130 117,381 a-f year 1950 17,075 69,153.75 114,454 a-f year 1951 17,130 69,376.50 125,276 a-f year 1952 /s/ R.W. Hollis, 17,140 69,417.00 Reclamation 128,236 a-f year 1953 [LARGEST 17,261 69,907.05 DIVERSION] 115,631 a-f year 1954 17,243 69,834.15 91,907 a-f year 1955 /s/ R.W. Hollis, not yet known Orland Unit Water Users Association 123,477 a-f year 1956 17,275 69,963.75 108,641 a-f year 1957 17,326 70,170.30 101,477 a-f year 1958 not yet known 112,856 a-f year 1959 17,499 70,870.95 116,438 a-f year 1960 17,440 70,632.00 113,541 a-f year 1961 17,211 69,704.55 113,053 a-f year 1962 17,425 70,571.25 a-f 100,346 a-f year 1963 17,519 70,951,95 a-f 75,703 a-f year 1964 /s/ R.W. Hollis, 16,804 68,056,20 a-f Orland Unit Water Users Association But per #S006353 & A 2212 ------------------------- Project x 4.05 a-f = Acres Angle Limit Supplied [Max allowed] -------- ------------- 115,261 a-f year 1965 17,115 69,315.75 a-f 126,221 a-f year 1966 17,043 69,024.15 110,034 a-f year 1967 16,512 66,873.6 114,278 a-f year 1968 16,823 68,133.15 115,841 a-f year 1969 16,855 68,262.75 120,624 a-f year 1970 16,778 67,950.90 /s/ H.E. Horton, Reclamation

D. In SWRCB Ap 18115 file, annual Progress Report by Permittee for [year shown]

1971 Project lumped in with total, ap. 18115 file 1972 1973 1974 1975 1976 1977 1978 1979 1980

E. FOIA Request to Reclamation, response dated 07/14/2009:

Project x 4.05 a-f = Acres Angle Limit Supplied [Max allowed] -------- ------------- 1970 120,594 Table 24B [close to SWRCB Ap. 2212 File amount above] 1971 125,519 Table 24B 1972 98,516 Table 24B 1973 122,185 Table 23B 1974 126,488 Table 23B 1975 120,816 Table 23B 1976 79,295 Table 23B 1977 26,299 Table 23B (Ap. 2212 ) 10,341 41,881.05 1978 96,741 Table 23B (Ap. 2212 ) 15,914 64,451.7 1979 94,545 Table 24B (Ap. 2212 ) 17,086 69,198.3 1980 117,432 Table 24B (Ap. 2212 17,755) 16,700 67,635 OUWUA 10/17/1980 protest, Ap. A26378 1981 89,516 Table 23B [from below] 18,093 73,276.65 a-f 1982 96,301 Table 23B [from below] 17,673 71,575.65 1983 78,494 Table 23B [from below] 17,909 72,531.45

F. i. In SWRCB Ap 18115 file, annual Progress Report by Permittee for [year shown]:

Project x 4.05 a-f = Acres Angle Limit Supplied [Max allowed] -------- ------------- 1981 18,093 73,276.65 a-f 1982 17,673 71,575.65 1983 17,909 72,531.45 1984 Project 66,689 (Ap 2212 16,481) 15,481 62,698.05 1985 Project 71,193 [see below] 16,939 68,602.95 1986 Project 64,143, Amended? 87,789 [?] 16,855 68,262.75 [see below] 1987 Project 71,825, Amended? 95,698 16,751 67,841.55 [see below] 1988 Project 63,115, Amended? 85,854 16,721 67,720.05 [see below] 1989 Project 79,611 [see below] 16,397 66,407.85 1990 Project 95,826 [see below] 16,457 66,650.85

Thereafter, lumped in with other Application uses in SWRCB reports.

ii. But, listed on the filings for SWRCB Supplemental Statement of Water Diversion and Use # S006353:

1991 [a plug?] 20,000 81,000 1991 (using Ap. 2212) 17,179 69,574.95 1992 (Ap. 2212, 16,029 acres) 18,626 75,435.3 1993 (Ap. 2212, 16,131 acres) 18,843 76,314.15 1994 16,480 66,744 1995 16,983 68,781.15 1996 12,982 52,577.1 1997 15,424 62,471.25 1998 15,608 63,212 1999 17,469 70,749.45 2000 (Ap. 2212, 15,901 acres) 17,848 72,284.4 2001 15,648 63,374.4 2002 15,042 60,920.1 2003 13,970 56,578.5 2004 14,405 58,340.25 2005 13,095 53,034.75 2006 13,319 53,941.95

iii. (Some annual averages per Reclamation) In SWRCB Ap. 18115 files:
Category 20 Volume [3?], Transcripts and Exhibits :
Folder 4a, Items 5 & 6 :
- Item 5 - Exh. 2 - 10 :

GCID Exh 8 110860 Reclamation protest of Ap 19534 , Theo & Shirley - Weissich on trib. of Pigeon Creek, on behalf of Orland Project, project use "max 128,236 a.f 1953, average 111,035 a.f. 1913-1958;"

GCID Exh 10 042061 Reclamation protest of Ap 19901, 19902, 19903, - 19904 and 19905 Francis P. and Florence Masterson; project 111,200 a.f. average 1913-1960

In Ap. SWRCB 24758 Files:

Correspondence file, 010677 Reclamation Protest of Ap 24758 : The project works provide a full water supply for the irrigation of about 19.500 acres irrigable land [4.05 a-f * 19,500 = 78,975 maximum before applying loopholes, which must be defended]. The maximum quantity of 128,236 acre-feet was used in 1954. The quantity of water diverted annually to the Orland Project is approximately 111,000 acre-feet [ or 32,025 a-f over allowed].

Billy E. Manderscheid , Chief, Water Resources Branch, Bureau of Reclamation, Transcript of SWRCB Hearing, 04/26/1978 p. 52 : The average annual water requirement delivered to the project is approximately 125,000 acre feet. ["requirement"? based on what?]

G. On the Reclamation web site, http://www.usbr.gov/mp/cvo/deliv.html under each prior year, under "Central Valley Project Diversions (Table 30 to 1997, Table 21 thereafter), http://www.usbr.gov/mp/cvo/vungvari/ , the ORLAND PROJECT numbers show (source, OUWUA):

A18115 & S000653 reports -----(from above)------ Project x 4.05 a-f = Reclamation Acres Angle Limit Web page Supplied [Max allowed] ----------- -------- ------------- /85.pdf 1985 102140 [higher than SWRCB report] 16,939 68,602.95 /86.pdf 1986 97789 [higher than SWRCB report] 16,855 68,262.75 /87.pdf 1987 95698 [same as SWRCB report] 16,751 67,841.55 /88.pdf 1988 85854 [same as SWRCB report] 16,721 67,720.05 /89.pdf 1989 79611 [same as SWRCB report] 16,397 66,407.85 /90.pdf 1990 95826 [same as SWRCB report] 16,457 66,650.85 /91.pdf 1991 88876 [a plug?] 20,000 81,000 1991 (using Ap. 2212) 17,179 69,574.95 /92.pdf 1992 84754 18,626 75,435.3 /tab3093.TXT 1993 82595 18,843 76,314.15 /tab3094.TXT 1994 104774 16,480 66,744 /tab3095.TXT 1995 87386 16,983 68,781.15 /tab3096.TXT 1996 95440 12,982 52,577.1 /tab3097.TXT 1997 102284 15,424 62,471.25 /tab2198.txt 1998 62953 [a rare equivalence] 15,608 63,212 /tab2199.txt 1999 104160 17,469 70,749.45 /tab2100.txt 2000 101321 17,848 72,284.4 /tab2101.pm 2001 111208 15,648 63,374.4 /tab2102.pm 2002 114253 15,042 60,920.1 /tab2103.pm 2003 89240 13,970 56,578.5 /tab2104.pm 2004 103937 14,405 58,340.25 /tab2105.pm 2005 86550 13,095 53,034.75 /tab2106.pm 2006 91793 13,319 53,941.95 /tab2107.pm 2007 103376 /tab2108.pm 2008 108733

Presumably the United States of America would be allowed to carry over water from one year to the next, but since nearly every year above exceeds the total government allocation allowable that doesn't "compute" as an excuse.

Contrast the numbers above with the numbers of annual flow of Stony Creek, Exhibit A-1 attached to Doc. 301, which is from the Army Corps of Engineers' Black Butte Project Hydrology Manual, May, 1957, Chart 11, Part #4 below. I have re-sorted those numbers and left a break in the sort that equals the total authorized diversion basin-wide of 106,100.94 acre-feet tallied in Part #1 above. Note that in only 5 of the 52 years on that tally, the total upstream watershed runoff fell short. Certainly those years would be years for which it would be prudent for the USA to maintain substantial carry-over in storage, but the Decree does not allow that. The Water Master has allowed it, the Court has allowed it, but the Decree does not allow it, and remember, the Decree was written by the United States of America (paragraphs 6 & 9 of their 1928 BRIEF; findings, decree) so construction of the Decree wording is most strictly applied against them. Selective enforcement is obvious (Opinion, Doc 295, p. 12), Reclamation gets as much water as it wishes, all others upstream are held to limits, usually strict limits, and even suffered unpermitted reductions of their allocations in at least 7 instances.

Peak year in that schedule was 1940-41 - I believe but do not know for certain that the flows in 1955-56 (the year of the Yuba City Flood) and 1964-65 were much higher. I will try and locate those later flow numbers, but the listing below makes the argument: As the Angle Decree is written, NO PARTY TO THE SUIT may use the excess surface flow that occurs in 47 of every 52 years.

The Decree itself is waste (remember that USA wrote it), inherent waste, and anyone stating that the stream is fully allocated is mistaken or deceiving.

Then there is:

H. DIVERSIONS TO USA's TEHAMA-COLUSA CANAL:

Expando file, Glenn-Colusa Irrigation District v. U.S.A. et al., CVS-91-1128-LKK-GGH 07/02/1992 Doc. 66 F Deposition of George G. Wilson [Angle Decree Water Master] 05/18/1992, 85 pp.,:

pp. 70-71

"A...running some of it down the Orland project canals into Tehama-Colusa canal.
Q. That's been done recently; has it not?
A. Yes, within the last few years."

Where are the diversion points? What canals, what laterals, what locations, what volumes?

Is this it? Entries on the "Black Butte Daily Computations" sheets received via FOIA (below) show entries for "T.C.C.A" Intertie, following is totalled 10/01-09/30 annual season:

a-f 1991-1992 [incomplete FOIA response] 1992-1993 [incomplete FOIA response] 1993-1994 [incomplete FOIA response] 1994-1995 [incomplete FOIA response] 1995-1996 [incomplete FOIA response] 1996-1997 [incomplete FOIA response] 1997-1998 [incomplete FOIA response] 1998-1999 2,559 [most months blank]` 1999-2000 1,015 [most months blank]` 2000-2001 [incomplete FOIA response] 2001-2002 1,380 [most months blank]` 2002-2003 4,493 2003-2004 4,066 2004-2005 [incomplete FOIA response] 2006-2007 4,899 2007-2008 4,530

In Ap. 18115 file 9 of 12, just after 07/08/1996 Baiocchi memo is an undated TCCA memo that mentions on p. 13 a reference to the Lower Stony Creek Management Plan p. 3-7, "Lateral 40 Intertie". That Intertie is also mentioned in the 05/20/1988 "Cooperative Agreement Among California Department of Fish and Game, National Marine Fisheries Service, United States Bureau of Reclamation and United States Fish and Wildlife Service to Implement Actions to Benefit Winter-run Chinook Salmon in the Sacramento River Basin", p.4, "an intertie between the Orland Water Users Association Lateral 40 overpass and the TCC", copy filed as Exhibit 7 in USDC ED California 91-1074 Doc #10.

Where was that INTERTIE approved? Didn't SWRCB deny the linkup in D 1100?

From 11/13/1998 "Lower Stony Creek Fish, Wildlife and Water Use Management Plan, pp. A-3-2 & A-3-3: "E. Lateral 40 [para] Figure 3-2a (page 3-6 in Ch. 3) shows the releases from Black Butte, brought through the Orland South Canal and Lateral 40 (used for operational spills only) which can spill into the TCC. Orland project water from East Park and Stony Gorge is routed through Black Butte to the South Canal and on to the TCC. These waters are used as a return of exchange water to Reclamation for water borrowed out of Black Butte in their exchange agreement. The amount of water spilled into the TCC Lateral 40 averages from 300-700 acre feet per month during the irrigation season (Figure 3-2a). The flows of up to 2000 acre feet per month during 1991-1995 were used to supplement the TCC when gates were up at the RBDD and pumping capacity was limited. In 1995 Lateral 40 diversions were discontinued as it was determined it was not a legal point of diversion." If discontinued, why is it still being used for diversion? see also graph at Figure 3-2a of that Plan, "Lateral 40 Intertie Flows", and p. 3-12: "Water Wheeling. Reclamation also has used the South Canal diversion, under the exchange agreement, to convey contract water to Lateral 40 (built in the early 90's), which discharges into the TCC. This water conveyance through Orland's facility was typically used when water was not available to TCC from the RBDD, but is no longer used for this purpose." [except that it is used, see annual figures above.]

I. DIVERSIONS BY U.S. FOREST SERVICE TO LETTS LAKE:

456 a-f to fill? SWRCB ap 17872/lic 7706, 319 a-f plus 0.33 cfs (137 a-f) 04/01 - 10/30 for a total of 456 a-f; priority 02/17/1921? 01/07/1985 Doc 75 Declaration of Water Master re Water Rights and Associated Problems within Stony Creek Watershed [CHECK]

J. OTHER DIVERSIONS BY U.S. FOREST SERVICE & BUREAU OF LAND MANAGEMENT IN THE STONY CREEK WATERSHED

Per SWRCB records, 156 of them?

K. DIVERSIONS TO OTHERS BY USA:

In SWRCB Application File Volume #7 for Ap. 18115, Black Butte Storage & Diversion, 07/05/1995 letter Matt Brown/USFWS to Stony Creek Technical Team, re Stony Creek Hydrology; lists 3914 a-f [annually] downstream of Black Butte for bureau contracts ; What are these contracts?

L. SANTA CLARA POWER PLANT OPERATIONS

p. 6 of a letter from Matt Brown, USFWS Red Bluff to Stony Creek Task Force, "Hydropower operations by the City of Santa Clara have altered releases from Black Butte in the past. For instance, the Black Butte minimum fisheries pool was violated in fall 1994, when water passed through the South Canal and the Santa Clara South Canal Power Plant.... This water was then dumped from the South Canal and not used by the Orland Project." Isn't this supposed to be a non-consumptive use? If Santa Clara occupies property as a successor or assign from any party to the Decree, it's covered by the Decree.

The 2002 NMFS Biological Opinion, p. 9, mentions that as part of the construction of the City of Santa Clara Black Butte powerplant in 1988 "a weir was built across the Stony Creek Channel approximately 300 yards downstream of Black Butte Dam forming a large shallow afterbay above it. Flows are diverted from this afterbay into the South Canal Diversion intake...." The storage in that afterbay violates the Angle Decree.

SWRCB:
Aps 026378 Stony Gorge, 026379 Black Butte, & 027750 Highline Canal
Permits 19273 Stony Gorge, 19274 Black Butte, & 19086 Highline Canal
Licenses 13212 Stony Gorge,

[see many references to the re-regulating dam and afterbay in 26378.htm and 26379.htm ]

M. ELK CREEK MUNICIPAL WATER SYSTEM [ELK CREEK COMMUNITY SERVICE DISTRICT?] and the LUMBER MILL

Where are the state permits or the Angle Decree modification for this diversion?

SWRCB Ap. #A026378

Cat 1 Correspondence Vol. 3 file :
Elk Creek Water Main, Elk Creek Water Treatment Plant, shown on 08/10/1983 Drawing 1G3 City of Santa Clara Stony Gorge Hydroelectric Project, General, Project Site Plan,; drawing attached to 11/28/1983 Settlement Agreement between the City of Santa Clara, California & OUWUA, which in turn is attached to 03/14/1984 letter from Attorney Meith to Beig/Div WRights;
Cat 3 ENVIRONMENTAL DOCUMENTS VOL. 1 OF 1
Folder 3, Item ?
05??81 Stony Gorge Hydroelectric Project, Initial Environmental Study, - City of Santa Clara, Prepared by Resource Management International, Inc., Sacramento, California [is this the earliest environmental report on the watershed?]
2. Existing Dam and Related Facilities , p. II-2
"The outlet works also include an 18-inch pipe which supplies the domestic and industrial water supply to the town of Elk Creek. Releases for this pipe are controlled by a 12-inch gate valve and 10-inch needle valve."
Cat 7 FERC LICENSES AND REPORTS VOL. 1 OF 1
Folder 2, Item ?
10??81 Stony Gorge and East Park Powerplants, Orland Project - California, An Appraisal Report on Adding Hydroelectric Powerplants at Stony Gorge and East Park Dams, 10/1981, Unted States Department of Interior, Bureau of Reclamation
- Part II. Setting, Stony Gorge Dam and Reservoir, p. 5
"An 18-inch-diameter outlet pipe supplies water to the town of Elk Creek, located 1 mile downstream."

Folder 2, Item ?
102081 Before the Federal Energy Regulatory Commission, Application for License for Project No. 3193, The Stony Gorge Hydroelectric Project By the City of Santa Clara, California, Prepared by: Resource Management International, Inc. Sacramento, California and Sverdrup & Parcel and Associates, Inc., San Francisco, California; on cover, SCH "81011202"
- - - A. Consumptive Uses of Project Waters, p. E-31
"In addition to the primary irrigation and flood control purposes of Stony Gorge Dam the reservoir serves a small domestic water supply system to provide water to the town of Elk Creek. Elk Creek purchases water for their supply from the Orland Unit Water Users' Association."
Cat 20 Transcripts and Exhibits Vol. 1 OF 1
Folder 4, Item 4, Exh. 3
10??80 Before the Federal Energy Regulatory Commission, Application for Preliminary Permit for Stony Gorge Hydroelectric Project, Orland Unit Water Users Association, Orland, California, 10/1980, Tudor Engineering :
"In addition, an 18-inch outlet pipe supplies water to the town of Elk Creek. Releases for this outlet pipe are controlled by a 12-inch gate valve and a 10-inch needle valve."

SWRCB Ap. #A027382 file :

04/12/1983 Protest Elk Creek Community Service District Board of Directors; P.O. Box 117 Elk Creek, CA 95939, Environmental:
"The proposed development that water is to be diverted for, around East Park Reservoir, could eventually result in the contamination of our water supply from Stony Creek. Without the proper sewage treatment, contaminates that may reach our water treatment plant could not be removed by our present form of water treatment. This would make our water treatment plant virtually useless. [para] The Colusa County Board of Supervisors has declared that the ground water supply of Stonyford has been polluted by septic tanks. This polution drains through the highly porous gravels of Big Stony Creek directly into Glenn County, hence to Stony Gorge Reservoir; this places a strain on our water treatment plant. [para] This was brought to our attention on 04/09/1983." "Accept NDK" crossed off

- 06/03/1983 letter Bourez/SWRCB to Elk Creek CSD, protest not accepted:

http://edocket.access.gpo.gov/2008/E8-4089.htm

[Federal Register: March 4, 2008 (Volume 73, Number 43)]
[Notices]
[Page 11669-11677]
[40-year folded into item #2, 29 contractors....]
Completed Contract Actions
"3. (38) Elk Creek Community Services District, California, CVP: Interim renewal contract for up to 3 years to continue project M & I water service while the Operations Criteria and Plan consultations continue. Contract was executed August 20, 2007."

From http://www.usbr.gov/mp/mp140/water_contractors/latest.pdf

WATER USER ORGANIZATION ROSTER - MID-PACIFIC REGION [Reclamation] 2009 Page 10 of CENTRAL VALLEY Project and Unit: Elk Creek Community Services District P.O. Box 117 Elk Creek, CA 95939-0117 Phone: (530) 968-5249 Fax: (530) 968-5359 Term Expires Pres. Sandra Benamati, Elk Creek 2011 V-Pres. James Callahan, Elk Creek 2011 Plant Op. Arnie Kjer, Elk Creek Secy. Roberta H. Hunt, Elk Creek Treas. James Callahan, Elk Creek Atty. J. Mark Atlas, Frost, Krup & Atlas, Willows Dir. Brian Close, Elk Creek 12/2011 Roberta H. Hunt, Elk Creek 12/2011 Vanessa Lewis, Elk Creek 12/2011 James Callahan, Elk Creek 12/2011

http://www.gcplanupdate.net/general_plan/process/background_setting/sfbackground/water.htm
- GLENN COUNTY GENERAL PLAN 2007 - 2027
- Elk Creek Community Services District, which serves 130 customers with water from Stony Gorge Reservoir.

Following is from a contact within the government of Glenn County:

Subject: RE: Elk Creek Community Service District Date: Tue, 23 Mar 2010 15:39:33 -0700 From: To: "Mike Barkley" Cc: Mike Did a little digging and ran across the following: Resolution - Formation of Elk Creek Community Service District (ECCSD) - August 24, 1960 - Recorder Book 404 Page 473 Contract between the USA & ECCSD Providing for Water Service - dates back to 12/08/1965 Hope this Helps

From records of Glenn County LAFCO/Facilities Management:

Reclamation Contract #115r-107 (or I-15r-107) of 03/25/1936 with trustees of the unincorporated Town of Elk Creek, Glenn County High School District, Elk Creek Elementary School District, and Elk Creek Cemetery District, "...the furnishing of water by the United States to the Contractors for the aforesaid purposes will not, under the terms and conditions hereof, be detrimental to the water service for the Orland project, nor to the rights of any prior appropriators....install a four-inch outlet, four feet in length, in the bypass of the high-pressure gages in Stony Gorge Dam, and attach said outlet to a pipeline to be installed by...at which point the United States will furnish water as required by the Contractors for irrigation and for miscellaneous purposes on lots within the unincorporated Town of Elk Creek, at the grammar school and the high school in the unincorporated Town of Elk Creek, and at the Elk Creek Cemetery,...not, however, exceeding a total of forty-five (45) acre-feet in any calendar year." etc. 7 pp.

Reclamation Contract Contr-14-06-206-34 01/28/1953 increases to 100 acre-feet per calendar year, plus a new fee

Assignment of the above to the Elk Creek Community Services District, 01/02/1965

Reclamation Contract, R.O. Draft 12/8-1965 Rev. R.O. 4/7-1967; Contract 14-06-200-3462A, minimum of fifteen acre-feet of water per year, up to 100 a-f/year 08/21/1967 [copy missing even numbered pages]
06/18/2003 Letter Bultema/Reclamation to Varga/Glenn County Public Works Elk Creek CSD Diversions 1976 151 acre-feet 1977 107 06/10/2003 Letter Bultema/Reclamation to Varga/Glenn County Public Works Elk Creek CSD Diversions 1983 64 acre-feet 1984 77 1985 88 1986 96 1987 133 1988 98 1989 90 1990 98 1991 86 1992 91 1993 76 1994 85 1995 71 1996 79 1997 81 1998 61 1999 64 2000 66 2001 73 2002 61
- - - [LUMBER MILL AT ELK CREEK : ]

Reclamation Contract, R.O. Draft 8/25-1971 Rev. W.O. 11/15-1971, Contract No. 14-06-200-5749A; "Contract between the United States of America and Commander Industries Inc. Providing for Water Service and for Adjustment and Settlement of Certain Claimed Water Rights" 02/01/1972; Commander claims rights to natural flow of Stony Creek under Angle Decree, but does not specify them; base supply 164 acre-feet/year [is this Commander's claimed Angle rights, but from which award?]; plus project water 25 acre-feet/year plus unlimited additional water if available; delivered from Stony Gorge Reservoir; contract through 12/31/2010 plus 40 year renewals if agreed upon not later than 1 year prior to expiration
Subject to "a license with the Federal Government identified as Contract No. 14-06-200-5500A and dated" 02/01/1972;
[Is this "article" boilerplate, or recognition that the Angle Decree is not a stream adjudication, or something else? : ] Article 6(b) "Nothing herein contained is intended to or does limit rights of the Cotnractor against others than the United States or of the United States against any person other than the Contractor; Provided, however, That in the event the Contractor, the United States, or any other person shall become a party to a general adjudication of rights to the use of water of the Stony Creek system, this contract shall not jeopardize the rights or position of either party hereto or of any other person and the rights of all such persons in respect to the use of such water shall be determined in such proceedings the same as if this contract had not been entered into, and if final judgment in any such general adjudication shall determine that the rights of the parties hereto are different from the rights as [bottom of p. 6] assumed herein, the United States shall submit to the contractor an amendment to give effect to such judgment and the contract shall be deemed to have been amended accordingly unless within 60 days...." [para] (c) "In the event this contract terminates the rights of the parties to thereafter divert and use water shall exist as if this contract had not been entered into. The fact that as a compromise settlement of a controversy [litigation?] as to the respective rights of the parties to divert and use water and the yield of such rights during the term hereof, this contract places a limit on the total supply to be diverted annually by the Contractor during the contract term and segregates it into base supply and Project water, shall not jeopardize the rights or position of either party with respect to its water rights or the the yield thereof at all times after the contract terminates.... Neither....shall be construed as an admission that any part of the water used by the Contractor during the term of this contract was in fact water to which it would not have been entitled under water rights owned by it."

Binding Agreement No. 14-06-200-5749A-BA; "Binding Agreement for Early Renewal between the United States and Louisiana Pacific Corporation", 09/30/1997

Assignment of Contract, Acceptance Thereof and Consent Thereto, Contract No. 14-06-200-5749A, 09/22/1999 Louisiana Pacific assigned to Whitney Construction

Commander contract now with Whitney Construction; LUMBER MILL closed, and plant being used as a construction yard of some sort, Reclamation site: http://www.usbr.gov/mp/cvpia/3404c/lt_contracts/2004-05_foc/2004foc_whitney_04-19-04.pdf which as its predecessos also mentions Contract 14-06-200-5500A , whatever that may be

SWRCB Ap. #A013459 file, ponds for LUMBER MILL: Setzer Forest Products, Glenco Forest Products, Commander Industries, Louisiana Pacific, Whitney Construction:

05/16/1974 memo A.A. Chesler/Division of Water Rights;
"The Bureau of Reclamation delivers water from Stoney [sic] Gorge Reservoir to the reservoir when needed. Messrs. Langum and Greenhall said they have an agreement with the USBR in which the USBR acquired some of their water rights when the reservoir inundated lands, and therefore, USBR delivers a certain amount of water without charge to Commander Industries, Inc. and charges for any beyond that amount." [Which underlying rights in the Reservoir, & is this split off same line that feeds Elk Creek CSD? ]

I have not yet found any reference in SWRCB Ap File 2212 (the Stony Gorge Ap) to these M & I uses. At least since May 2009 those files have been upstairs at the Division of Water Rights for some unstated reason so early 2010 I asked for them and sent them out to be copied completely and I am working on indexing them. Spot checking progress reports shows no M & I reporting at all, just irrigation.

N. The Decree does not provide for evaporation from the reservoirs (only the portions of this pertaining to rights condemned within the reservoirs are per valid rights):

East Park 1,820 max surface acres Stony Gorge 1,274 max surface acres Black Butte 4,560 max surface acres ------ 7,654 Annual max evaporation, in vertical feet x 5 feet ------ Annual maximum total evaporation 38,270 acre-feet ======

O. Bar graph of excess Orland Project diversions (a part of excess USA diversions) for years for which we have net irrigated acreage : My brother put together this Microsoft Excel spreadsheet , a very preliminary bar chart of the excess diversions

3. REPORTED DIVERSIONS OF STONY CREEK WATERS BY GLENN-COLUSA IRRIGATION DISTRICT

The Decree limits Glenn-Colusa Irrigation District to 20,315 a-f and a maximum of 500 cfs. The following diversions are per Doc. #59 (twice) in USDC ED Case #91-1128, "7-223 (3-37) Bureau of Reclamation" "Source: Reports of Sacramento-San Joaquin Water Supervison":

Total or per Water Mar thru Nov Master Report 1930 2,225 a-f 4,450 1931 420 396 1932 2,180 2,161 1933 640 1,263.7 1934 2,911 2.199.13 1935 7,905 10,652.4 1936 8,573 8,829.6 1937 4,900 4,861 1938 32,897 34,343 1939 [blank] -0- 1940 8,707 8,710 1941 37,131 37,130.5 [only year equal] 1942 30,510 30,514 1943 13,560 13,582 1944 4,959 4,950 1945 4,978 4,969.8 last year of Water Master 1946 22,295 Diversion Report to the Court 1947 2,083 1948 11,920 1949 31,749 1950 9,501 1951 5,236 1952 71,397 1953 65,075 1954 32,056 1955 5,142 1956 64,726 1957 29,010 1958 53,336 1959 10,381 1960 18,997

4. LIMITS & USAGE CONTRASTED WITH TOTAL ANNUAL STREAM FLOWS

A. Army Corps of Engineers' Black Butte Project Hydrology Manual, May, 1957, Chart 11 (attached as Exhibit A-1 to Doc. 301), covering 1903-04 - 1954-55 [annual season totals in the Chart are 10/02-09/30], re-sorted leaving a break in the sorting that equals the total current authorized diversion basin-wide of 106,100.94 acre-feet; in thousand acre-feet:

1923-24 37.6 1919-20 77.3 1938-39 77.4 1930-31 78.8 1928-29 97.1 - Total allowed by Angle for entire watershed, 106,100.94 a-f 1932-33 121.8 1946-47 124.2 1947-48 125.6 1911-12 130.9 1954-55 147.0 1943-44 148.2 1917-18 156.2 1933-34 161.9 1949-50 196.1 1944-45 198.2 1922-23 206.3 1936-37 214.0 1931-32 220.0 1916-17 221.1 1929-30 231.6 1921-22 250.1 1948-49 275.1 1925-26 291.6 1918-19 305.0 1934-35 321.2 1912-13 326.7 1935-36 337.9 1945-46 360.4 1927-28 362.2 1953-54 368.4 1907-08 389.5 1942-43 391.8 1909-10 403.6 1950-51 406.6 1939-40 427.1 1924-25 489.2 1904-05 534.1 1952-53 542.3 1905-06 606.7 1920-21 619.6 Doc #301, Exhibit A-2, p. 1 1926-27 622.3 1910-11 630.0 1951-52 679.4 1941-42 765.6 1937-38 791.0 1915-16 834.6 1903-04 846.1 1906-07 863.1 1908-09 1001.9 1913-14 1014.1 1914-15 1321.1 1940-41 1424.7 Doc #301, Exhibit A-2, p. 2

B. [ For flow totals after 1954-55 , Freedom of Information Act Request to USACE not yet complied with ]

C. Flows 1991 & later:

Left-hand column: FOIA Request to Reclamation, response dated 07/14/2009, per "Black Butte Daily Computations" sheets, "B.B.L. Mean Inflow" which, of course, includes storage releases from upstream or excludes flow retained in storage upstream tending to smooth out the seasons and nudge storage from one season into the "flow record" of the next; season tallied for 10/01 - 09/30 to match USACE Chart 11 above (FOIA response incomplete):

Right hand column, tally of numbers on DWR website for Black Butte, http://leva.water.ca.gov/cgi-progs/queryDaily?BLB&d=29-Oct-2008+22:38&span=30days [now http://cdec.water.ca.gov/cgi-progs/queryDaily?BLB ]:

Season Reclamation DWR --------- ---------------------------------------------- --------- 1991-1992 217,314 [ total cfs * 1.98347 ] 1992-1993 [incomplete FOIA response] 1993-1994 [incomplete FOIA response] 1994-1995 [incomplete FOIA response] 1,108,987 1995-1996 [incomplete FOIA response] 554,216 1996-1997 [incomplete FOIA response] 609,224 1997-1998 [incomplete FOIA response] 1,253,571 1998-1999 415,236 356,592 1999-2000 345,215 339,220 2000-2001 [incomplete FOIA response] 178,265 2001-2002 391,224 [09/2001 negative inflow 387 a-f?] 340,349 2002-2003 486,666 [a-f totals on sheets starting 10/2002] 461,520 2003-2004 544,184 522,956 2004-2005 [incomplete FOIA response] 616,595 2005-2006 915,962 915,638 2006-2007 166,331 163,002 2007-2008 316,570 316,052

Both agencies apparently back into the inflow numbers: thus many days show negative inflow cfs numbers which casts doubt on the validity of the entire Black Butte reporting process - water did not start flowing back up the stream from Black Butte. On the state site, some blocks are just blank even with reservoir level changes so tallies may be less accurate than the Reclamation numbers; one date, 11/14/2001 shows 2.6 billion cubic feet per second, which would scour everything to the Golden Gate Bridge (that means it is obviously wrong and I left it out of these tallies).

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Return to Stony Creek Water Wars.

--Mike Barkley, 161 N. Sheridan Ave. #1, Manteca, CA 95336 (H) 209/823-4817
mjbarkl@inreach.com