During the height of the 2022 drought, ranchers in Siskiyou County diverted Shasta River water in violation of the State Water Resources Control Board’s (SWRCB) Klamath River Watershed Drought Emergency Regulations (Emergency Regulations), which requires pumping cease under specific circumstances. The Emergency Regulations allow the SWRCB to enforce curtailments when summertime flows in the Shasta River drop below 50 cubic feet per second near Yreka.
The events of the Shasta River controversy served as a catalyst for California Assembly Bill 460 (AB 460) (Bauer-Kahan), a measure taking direct aim at unlawful diversions of water. Passed out of the Legislature on August 30, and currently sitting on the Governor’s desk, this bill amends sections 1845 and 1846 of the California Water Code to increase civil penalties for violating SWRCB orders, such as the Emergency Regulations. The increase in penalties, some up to 20 times the previous amount allowed by statute, will penalize diverters for violations of the following SWRCB measures:
- Cease and Desist Orders: Violations of Cease and Desist orders will result in a penalty of up to $2,500 for each day the violation occurs. If the violation occurs in a critically dry year immediately preceded by two or more consecutive below normal, dry, or critically dry years, or during a period when the Governor has issued a state of emergency due to drought conditions, the penalty can increase up to $10,000 per day.
- A violation of term or condition of a permit, license, certificate, or registration to appropriate water, a regulation or order, or a condition or reporting requirement for the diversion of floodwaters for groundwater recharge can result in a daily penalty of up to $1,000 for each day a violation occurs. If a diverter violates a curtailment order, the diverter can be liable for a penalty of up to $10,000 per day in addition to $2,500 for each acre-foot diverted in violation of the curtailment order.
These penalties may be imposed by the superior court at the request of the attorney general’s office or administratively by the SWRCB under Water Code section 1055. Section 1055 allows the SWRCB to issue an administrative civil liability complaint against a person or entity imposing civil liability, following a necessary hearing and adoption of an order setting such liability.
The increase in unlawful diversion penalties is best highlighted by comparing the Siskiyou County ranchers’ penalty, as assessed in 2022, with the amount of the penalty that could be imposed for a similar violation should AB 460 be signed into law by Governor Newsom. At the time of the Shasta River controversy, ranchers were assessed a $4,000 penalty in total, which came out to approximately $50 per rancher. Today, a similar violation could cost the group over $1.2 million.
State water regulators have long sought higher statutory penalties for unlawful diversions, particularly during times of drought when water resources are scarce. AB 460 addresses these concerns by giving the SWRCB authority to impose stiffer penalties. The Governor has until September 30 to sign or veto AB 460.
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