United States: California State Water Resources Control Board Issues Drought Regulations Restricting Certain Water Uses And Ordering Curtailments In Several Watersheds

According to the U.S. Drought Monitor, California is experiencing severe to exceptional drought conditions. On January 17, 2014, and again on April 25, 2014, California Governor Edmund G. "Jerry" Brown, Jr. issued proclamations regarding the State of Emergency related to the drought. The proclamations addressed water conservation, water transfers, fishery protection, water recycling, groundwater overdraft protection, water supply shortages and fire response. They also suspend the California Environmental Quality Act (CEQA) for certain activities, including adoption of emergency regulations by the State Water Resources Control Board (the "Water Board") pursuant to Water Code § 1058.5.

  • Water Code § 1058.5 grants the Water Board the authority to adopt emergency regulations in certain drought years in order to prevent the waste, unreasonable use, unreasonable method of use or unreasonable method of diversion of water to promote water recycling or water conservation, to require curtailment of diversions when water is not available under the diverters' priority of right, and to require reporting of diversions or use or the preparation of monitoring reports.
  • As of mid-June, the Water Board adopted emergency regulations and issued curtailment notices to:
    • all post-1914 water right holders in the Sacramento-San Joaquin River watersheds;
    • water right holders in the Russian River upstream of the confluence with Dry Creek with a priority date of February 19, 1954, or later; and
    • junior water right holders in the Scott River watershed to protect senior water rights held by the U.S. Forest Service.

Water Rights Affected by the Curtailments

  • The regulations permit the Water Board's Deputy Director for Water Rights to issue curtailment orders when flows are sufficient for some but not all diversions. Curtailments will be issued in order of water rights priority.
  • Riparian Water Rights. Generally, the curtailments will not affect riparian water rights. A riparian water right provides a right to a correlative share to the natural flow of a water body to which the land is riparian. Riparian land, generally, is land that touches a lake, river, stream or creek wherein the land drains back to that water body. If water drains in another direction, it is not riparian to that water body. Under a riparian right, only the natural flow of water may be diverted. Water that is imported from another watershed or stored during a wet time to be used during a drier time may not be diverted under a riparian right. Under a riparian right, a water user may not store water for use later in the year.
  • Appropriative Water Rights. Appropriative water rights permit the diversion of water for use on non-riparian land or to take and store water for use when it would not be available under natural conditions. An appropriative right holder may use natural flow and non-natural flows, such as imported water, irrigation return flows or stored water. Appropriative water rights are acquired on a first-in-time basis—that is, the more senior a right, the greater the ability to divert.

Effects of the Curtailment Notices

  • If a water user has received a curtailment notice, they have to refrain from using water under the conditions specified by the curtailment. They also are required to submit the required forms to the Water Board. Noncompliance with the curtailment notices will subject water users to a variety of penalties, including Administrative Civil Liability (ACL) of up to $1,000 per day and $2,500 per acre foot of water diverted for each violation and an immediate enforcement action preventing the water user from diverting further. In addition, if the Water Board issues a cease-and-desist order, the violation may result in an additional fine of $10,000 per day.
  • Under newly adopted regulation sections 875 and 878.3, drought emergency curtailments are authorized and reporting requirements are specified. If a water user has received a notice of curtailment, they will have five days in which to comply.
  • The curtailment notice for the Sacramento-San Joaquin River basins notifies holders of post-1914 appropriative rights to stop diverting immediately. Diverters are required to document receipt of the notice by completing an online Curtailment Certification Form within five1 days.
  • If the post-1914 diversion is the only source of water available for human health and safety purposes, the water user may contact the Water Board and provide information about the absence of other available supplies and conservation measures that have been implemented. The Water Board will address health and safety water on a case-by-case basis.
  • If the diverter has other sources of water not subject to the curtailment notice, such as riparian or groundwater, it may continue to use those sources but is required to specify these other sources on the curtailment form.
  • Minimum health and safety needs are that amount of water necessary for prevention of adverse impacts to human health and safety, for which there is no reasonable alternate supply. Generally, they are for domestic and municipal use of less than 50 gallons per person per day, not to exceed 10 acre-feet per year or storage of 4,500 gallons per day of direct diversions. In addition to municipal and domestic use, health and safety water may be used for vital energy supplies; fire protection; air quality purposes, e.g., dust control; and others on a case-by-case basis.
  • Specific actions applicable to all water users and uses prohibited by the regulations include the application of potable water to outdoor landscaping in a manner that causes runoff; use of a hose that dispenses potable water to wash a car, unless the hose has a shut-off nozzle; use of potable water to wash driveways or sidewalks; or use of potable water in a fountain or water feature, except where the device recirculates the water. These actions are subject to a fine of $500 per day.
  • Mandatory Actions by Water Suppliers. Retail water suppliers are required to implement their water shortage contingency plans that impose mandatory restrictions on outdoor irrigation of ornamental landscapes or turf with potable water, including irrigation of no more than two days per week ("outdoor irrigation restrictions"), or submit a request to the Executive Director of the Water Board for approval of an alternative plan that includes allocation-based water rate structures and which achieves a level of conservation superior to that achieved by implementing the outdoor irrigation restrictions. Retail water suppliers without contingency plans are required to impose outdoor irrigation restrictions or implement another mandatory conservation measure to achieve a comparable reduction in water consumption. By the 15th of each month, they also have to submit a monitoring report to the Water Board that includes the amount of potable water the water supplier produced, including water provided by a wholesaler for the preceding calendar month, comparing that amount to the amount produced in the same month in 2013. Commencing on October 15, 2014, they will need to provide an estimate of the gallons of water per person per day used by residential customers. Each distributor of a public water supply, as defined in Water Code section 350 that is not an urban retail water supplier, shall within 30 days take one or more of the following actions: impose outdoor irrigation restrictions or implement another mandatory conservation measure intended to achieve a comparable reduction in water consumption relative to the amount consumed in 2013.
  • A water right holder may file an objection with the Water Board regarding the curtailment order. The Water Board will consider the objections on a case-by-case basis.
  • The Water Board encourages diverters to work together to reach local voluntary agreements regarding water use and to address water shortages. If possible, developing a local plan can provide the greatest benefit.

Conclusion

If a diverter has received the curtailment form and has not filed the required certification, they should consider contacting their water rights consultant, if they have one, for assistance in filling out the form.

Footnote

1.There is some confusion as to whether the filing is due five or seven days later. The curtailment notice will specify the due date.

If you have any questions about this Alert, please contact Thomas M. Berliner, any of the attorneys in our Energy, Environment and Resources Practice Group, any of the attorneys in our Water Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

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