Jeff Jardine: Fighting MID on water theft allegation

08/30/2014 6:45 PM

08/31/2014 5:38 AM

Floggings, tar-and-feathering and dunking used to be considered acceptable forms of public humiliation for misdeeds.

The Modesto Irrigation District revived the concept somewhat a couple of weeks ago. No, it didn’t dunk anyone. It’s a drought year, and the tank is only one-third full. But officials did publicly name six customers they deemed to be stealing water from the district by announcing their names and fines at a recent board meeting. The results of the meeting – including naming of names – were reported in The Modesto Bee and picked up by Sacramento-area TV stations.

When Casey and Diane Johnson found out they were among them, they were understandably mortified. Casey is a successful certified public accountant in Modesto whose clientele includes numerous farmers. Something like this can ruin a reputation and a business and affect friendships.

What’s frustrating to the Johnsons is that they were outed as water thieves at the same time they received a letter ordering them to pay a $1,500 fine to the district and telling them their rights to irrigation are terminated indefinitely. They said they received no written warning or notification, didn’t receive a visit or a phone call from district officials, and were not afforded any opportunity beforehand to plead their case or explain. Just the letter informing them of the fine and that they’d lost their water rights. Oh, yeah, and seeing their names in the paper and posted on MID’s website.

Having survived the initial gut punch, they decided to fight back. Diane wrote a letter to the district. No response, she said. No acknowledgment at all. So they hired attorney Robert Fores to do the same. He sent a detailed six-page letter to the district. Letterhead carries more weight, apparently, because he received an immediate acknowledgment. We’ll get into the details of his letter momentarily. First, some background:

The Johnsons bought their home on 2.2 acres along Garst Road eight years ago. They pay $200 a year to MID for irrigation water as so-called garden head irrigators.

They have three flood irrigation valves at the front of their property, and said they had used only about 1.5 acre-feet of water, which is less than half of their total allotment, before the district suddenly fined them and revoked their water right. But the valves in the front yard weren’t the problem. The issue for the Johnsons and others along Garst stemmed from the small pipe each has to tap into the canal behind their property. Like several other neighbors along the canal, the Johnsons used these pipes, which draw water using gravity. The Johnsons used it to water their small garden. The rest of the property is handled by the flood irrigation from the front gates, but a berm prevents that water from reaching the garden. The pipes have been there for perhaps 25 years or more, Casey Johnson said, and he said they were never told they were in violation. MID said they never were authorized.

The irony, the Johnsons said, is that eliminating the berm and flooding all the way to the back of the property would use far more water than they used from the gravity flow pipe.

And, Diane Johnson said, “I only used (the gravity pipe) during the times when we were watering on our schedule. That was only once a month (due to drought restrictions).”

Otherwise, she keeps the garden alive by using their garden hose and with water from their private well, which, Casey Johnson said, had to be lowered by 20 feet earlier this year because the area’s water table has dropped.

In his letter to the district, Fores wrote that MID employees knew the pipes were there “in plain view, open and obvious, at least 1,000 times from 2006 through Aug. 11, 2014, without ever informing the Johnsons that use of it was potentially illegal or unauthorized.” He also suggested that MID would have known about it before the Johnsons bought the property, and that MID workers actually reinstalled it after removing it to work on the canal in 2007.

“I’d called them because there was standing water on the lawn,” Casey Johnson said Friday. “They sent somebody out. They lifted the line out and set it on the canal bank. After they fixed the canal, they set (the pipe) back in.”

And Fores noted that in its punitive letter, the district cited 2.3.2 of its rules and regulations, which says the district will provide notification in writing to the landowner to remove an unauthorized source.

“MID has never provided any written notification to the Johnsons of any unauthorized encroachment,” Fores wrote.

Diane Johnson said that a few years ago, a ditch tender pulled into the driveway and told her the gravity pipe might be illegal.

“He said he was going to talk to his supervisor and get back to me,” she said. “He never did. We never heard another thing about it” until receiving the letter informing them of the fine.

MID spokeswoman Melissa Williams said the district long has maintained the right to terminate service for misuse. But earlier this year, with the severity of the drought, the board took a tougher stand by adopting the $1,500 fine.

“The board encouraged them to write letters,” she said. “The Johnsons did and hired a lawyer. We’re currently reviewing their situation and their letter.”

Casey Johnson, speaking only for himself and not for any of his neighbors, said he holds no ill will toward the board. “I don’t think the board was given all the information,” he said. “I don’t blame them.”

He said he doesn’t like water abusers, either, citing one violator caught with a submersible pump in the canal after his water had been cut off.

“I don’t have any sympathy for people who are taking water and don’t pay for it or are taking more than their allotment,” Casey said.

MID board member John Mensinger said he was among those who endorsed tougher enforcement. He said officials will be going over Fores’ letter. “It’s a complicated situation,” Mensinger said. “We’re still investigating.”

He said the district keeps records of the work it performs but has lost some of its institutional memory through retirements and other departures that might otherwise shed more light on what was known about the pipes over the years.

Even so, he said, the current water crisis demands tougher enforcement.

“It’s a new era,” Mensinger said. “I’ll read the Johnsons’ letter and I’ll read the staff’s response.”

One other thing that might merit a look: The Johnsons said that every year, at the beginning of the irrigation season, they find a copy of their watering schedule in their mailbox.

No stamp, no postmark. Unofficial mail in an official mailbox. Uh, wouldn’t that be a federal crime?

It would be, said Dan Meade of the U.S. Postal Service in Modesto.

The Johnsons aren’t after blood, though. They merely want their irrigation rights restored, the fine rescinded, their name removed from the MID website and an apology. He’d also like to see the district do a better job of investigating and communicating when such issues arise.

“We aren’t thieves. We aren’t stealing water,” Casey said. “We were under the impression (the gravity line) was otherwise sanctioned. Had MID asked us to remove the line, we would have been more than happy to have done so.”

No public humiliation necessary.

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