United States: State Water Board Launches Investigation Into Claims Of Senior Water Rights

Action Required

Parties identified on Attachment A of the  State Water Board's Order must provide the requested information no later than March 6, 2015, or face potential enforcement actions.

On February 4, 2015, the State Water Resources Control Board ("State Water Board") issued an order seeking information to substantiate water rights claimed by certain riparian and pre-1914 appropriative water rights holders. Exercising the authority granted to it under July 2014 emergency regulations, the Board issued Order WR 2015-0002-DWR ("Order") directing 445 riparian and pre-1914 water rights holders with claimed rights to the Sacramento and San Joaquin River watershed to provide additional information on their claimed rights.

Summary of the Order's Requirements

The Order requires the 445 water rights holders identified in Attachment A to the Order to submit the following information for each claimed right no later than March 6, 2015: 

  1. Monthly diversions in 2014 and the basis of the right authorizing these diversions; 
  2. Anticipated monthly diversions in 2015 and the basis of the right authorizing these diversions; 
  3. The location of each point of diversion and the associated place of use, purpose of use, and if applicable, acreage and crop type served; and 
  4. All documentation supporting the type of water right claimed. If a riparian right is claimed, the property patent date and patent map should be provided. If a pre-1914 right is claimed, the claimant should provide the appropriative right notice recorded with the county, the property deed and other information that demonstrates initial diversion and continued beneficial use of water.

If the current drought declaration is extended, the Order also imposes on these water rights holders monthly water use reporting requirements beginning in February 2015 through the end of the drought.  Read the full Order.

All water rights holders receiving the Order must comply and provide the requested information no later than March 6, 2015. Even water rights holders who responded to a prior request for information concerning their first year of use must respond to this Order. Failure to comply with the Order exposes the non-responding party to enforcement action by the State Water Board. 

Background/Basis for Order

On July 2, 2014, the State Water Board adopted an emergency regulation providing a framework for curtailment of water diversions to protect senior water rights, and authorizing its Division of Water Rights (the "Division") to impose such curtailments. This emergency regulation added Sections 875 and 878.3 and amended Sections 878.1 and 879 of Title 23 of the California Code of Regulations. Under Section 879, subdivision (c), as amended, if a complaint is filed alleging interference with a water right by riparian or pre-1914 water rights holders, the Division's Deputy Director may issue an order requiring these water rights holders to provide certain specified additional information. This Order is an exercise of the Division's authority under Section 879.

Dueling Complaints Challenging Water Diversions

Almost immediately after the adoption of the emergency regulations, the State Water Board received competing complaints claiming that senior rights holders were illegally diverting water. First, on July 23, 2014, the California Department of Water Resources ("DWR") and the U.S. Bureau of Reclamation ("Reclamation") filed a complaint alleging that landowners were illegally diverting water that had been stored and released from the State Water Project and Central Valley Project, as well as illegally diverting water acquired by State Water Project contractors through transfer and exchange agreements. DWR and Reclamation asked the State Water Board to use its new emergency powers to investigate water diversion practices by landowners and obtain proof of "assumed" water rights, and to curtail diversions if proof was not received. Although water users in the Delta are required to regularly report their diversions, DWR claimed the information was insufficient.

Shortly thereafter, on August 13, 2014, the California Sportsfishing Protection Alliance ("CSPA") filed a complaint alleging that DWR and Reclamation were illegally diverting water at their Sacramento-San Joaquin Delta pumping facilities, and that Reclamation was illegally diverting San Joaquin River riparian flow at its Friant Project. CSPA urged the State Water Board to investigate these diversions and require proof of DWR's and Reclamations right to divert. CSPA also asked the State Water Board to initiate, on its own motion, an adjudication of Central Valley water rights.

The State Water Board has not resolved the competing claims, but appears to be gathering the information it would need to investigate the claims and determine whether unauthorized diversions are occurring, or could potentially occur. On November 24, 2014, the State Water Board requested that certain riparians and senior appropriators identify their year of first use. Now, it is seeking more extensive information from 445 listed parties, including: 

  • Each diverter's monthly amounts of water diverted in 2014 and the basis of the right allowing the diversion for each month; 
  • Each diverter's anticipated monthly diversions for 2015 and the basis of the right allowing the diversion for each month; 
  • The method of diversion used to determine the amounts reported and the primary use of water; 
  • For direct diversions, the total amount diverted and the maximum rate of diversion each month; 
  • For diversions to storage, the quantity collected to storage each month; 
  • Identification and location of the point of diversion and place of use for the water right claimed; and 
  • Documentation supporting the claimed water right, including the property patent date and patent map for riparian rights; and, for pre-1914 appropriative rights, a copy of the notice filed with the county, property deed, and all other information pertaining to initial diversion and continued beneficial use.

Action Required

Parties identified on Attachment A of the State Water Board's Order must provide the requested information no later than March 6, 2015, or face potential enforcement actions. Additionally, all reports must be filed electronically at SWRCB-2014informational-order@waterboards.ca.gov.

Click here to view a sample copy of the online form provided by the State Water Board, under the heading "Online Informational Order Template."

If you have any questions, or need assistance in evaluating your legal obligations under the State Water Board's Order, please contact us. We would welcome the opportunity to assist you in navigating these challenging requirements.

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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