United States: State Water Board Significantly Expands Scope Of Authority To Investigate Water Rights

As widely anticipated, on March 17, 2015, the State Water Resources Control Board approved a resolution to impose state-wide mandatory water conservation measures, including restricting the number of days that irrigation of outdoor landscaping is permitted, prohibitions on irrigation runoff and irrigation of landscaping within 48 hours after measurable rainfall, prohibitions on serving drinking water at restaurants unless requested by the customer, and requiring hotels to give guests the option to forgo daily laundering of linens and towels.

But in a less-publicized resolution adopted the same day, the Board also moved to significantly expand its power to investigate the validity of claimed water rights. Calling its existing ability to obtain documentation of water rights and water use too limited, and finding that many recipients of curtailment notices in 2014 simply ignored orders to stop using water, the Board's new regulation broadens the circumstances in which it may require information from water rights holders. Section 879(c) of title 23 of the California Code of Regulations, as proposed, permits the Board to issue an order to any water right holder, water diverter, or water user to substantiate its claimed right to water, based only on the receipt of information indicating that the use or method of diversion may be unreasonable.

New Regulation Expands Board's Authority Over Water Rights Holders

Last July, the Board adopted regulations authorizing it to issue orders to senior water rights holders (i.e., those claiming riparian and pre-1914 appropriative water rights), requiring those water users to substantiate their water rights claim in two circumstances—(1) following receipt of a complaint alleging interference with a water right by a senior water right holder, or (2) upon receipt of information indicating an unlawful diversion of stored water. Then, on February 4, 2015, the Board issued orders to 445 different senior rights holders claiming a total of 1,061 rights, giving those parties 30 days to submit their 2014 and anticipated 2015 monthly uses of water, as well as documentation supporting the water rights claimed.  See State Water Board Launches Investigation Into Claims of Senior Water Rights.

The Board's new regulation, a re-adoption and expansion of 23 C.C.R. § 879(c), goes further. Under its new provisions, the Board may issue orders to any water rights holder, diverter or user to provide documentation as to an asserted water right and the amounts used, in response to: 

  • Receipt of information that indicates actual or threatened waste, unreasonable use, unreasonable method of diversion, or unlawful diversions. Regulations previously authorized informational orders only when unlawful diversions of stored water were suspected. 
  • Complaints of interference with water rights by other water right holders, diverters, or users. Previously, the regulations authorized the issuance of an order seeking information only from riparian and pre-1914 rights holders. 
  • Claims of previously unasserted riparian or pre-1914 rights in response to curtailment notices. In 2014, the Board issued curtailment notices to holders of more than 9,000 junior water rights, but many diverters either ignored the notices (the Board reports that the response rate was 38%), or continued diversions based on a claim of an unreported senior right underlying the curtailed junior right. 
  • Claims of a right to divert under a contract or water transfer not previously approved by or filed with the Board.

In any of these circumstances, the Board may issue an order requiring submission of the following information: 

  1. The claim of right; 
  2. Property patent date; 
  3. Date of initial appropriation; 
  4. Diversions made or anticipated during the current drought year; 
  5. Compliance with transfer law if the transfer diversion was not subject to approval of the Board or the Department of Water Resources; or 
  6. Any other information relevant to authenticating the right or forecasting use and supplies in the current drought year.

Failure to provide the information requested within 30 days (or any additional time extension granted) may subject the person receiving the order to civil liability of up to $500 per day for each day the violation continues. Moreover, a finding that a diversion is unauthorized could result in liability of up to $1,000 per day plus $2,500 per acre-foot of water unlawfully used.

The proposed emergency regulations must first be submitted to the Office of Administrative Law, which has 10 days to approve or deny the regulations. If approved, the regulations will take effect immediately and remain in effect for 270 days.

Read the full text of the proposed regulation authorizing informational orders, as amended.

Read the emergency conservation measures.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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