California’s Sacramento-San Joaquin Delta (Delta) is currently experiencing one of the driest years in recorded history.  The US Drought Monitor recently classified large portions of the Delta Watershed as being in a state of “Exceptional Drought,” while the remaining portions are in a state of “Extreme Drought.”  The California Nevada River Forecast Center also provides information that the to-date flows in nearly all streams in the watershed are between 20 and 40 percent of the annual average.  As a result, the water supplies for many users in the region are in jeopardy.

Governor Newsom’s Proclamation of a State of Emergency on May 10, 2021, directed the State Water Resources Control Board (SWRCB) to consider adopting emergency regulations to curtail water diversions in the Delta Watershed when it deems water to be “unavailable.”  On June 15, 2021, the SWRCB sent Notices of Water Unavailability to all water right holders in the Delta Watershed, alerting all post-1914 appropriative water right holders that water was unavailable and warning all pre-1914 appropriative and riparian water right holders in the Delta Watershed of impending water unavailability.  On July 23, 2021, the SWRCB released Draft Emergency Regulations (Regulations) and another Notice of Water Unavailability alerting certain previously-warned water right holders that water is now unavailable.  The SWRCB plans to consider adopting the Regulations at its August 3, 2021 Board Meeting.

What do the Draft Emergency Regulations state?

The Regulations, if adopted in their current draft form, add provisions to existing regulatory sections concerning the curtailment of diversions.  More specifically, the Regulations authorize the Deputy Director of the Division of Water Rights (Deputy Director) to issue curtailment orders to water right holders in the Delta Watershed, including riparian and pre-1914 right holders, in order of priority, when the Deputy Director finds that water is unavailable.  The Deputy Director may temporarily suspend a curtailment order if water becomes available due to improved stream flow conditions.  The Regulations also mandate that curtailed water right holders subscribe to the Delta Drought email distribution list and frequently check the SWRCB’s drought website to remain apprised of updates.

The Regulations offer specific exceptions to the curtailment orders.  The Regulations largely do not apply to non-consumptive water users, including appropriators in the Legal Delta irrigating land below sea level, as those diversions may continue – subject to certain conditions – even after receiving a curtailment order.  The Regulations also provide an exception to curtailment for minimum health and safety needs.  Additionally, the Regulations provide that water users may submit to the Deputy Director proposed alternatives to curtailment that achieve the purpose of the curtailment process.  The Deputy Director may approve the proposal if it “will not injure non-party legal users of water or result in an unreasonable impact on fish and wildlife.”  Notice of the proposals will appear on the SWRCB’s website and the Deputy Director may issue a decision prior to providing notice.

The Regulations also impose reporting requirements.  For example, water right holders that receive curtailment orders must submit to the Deputy Director, within seven days, a certification that they have either ceased their diversions or that their continued diversions are authorized.  Those water right holders that continue to divert must submit information (e.g., proof of compliance) to the Deputy Director on a schedule.

Lastly, the Regulations state that a diversion or use of water in violation of the provisions “constitutes an unreasonable use of water and is subject to any and all enforcement proceedings authorized by law.”  Moreover, a diversion or use of water in violation of the Regulations “is a trespass under Water Code section 1052 and shall constitute evidence of diversion or use in excess of a water user’s rights.”  Violators will be subject to penalties under Water Code section 1058.5, which includes fines of up to $500.00 for each day in which the violation occurs.

What happens next?

On July 27, 2021, the SWRCB held a Staff Workshop to provide the public with information and receive public input on the matter.  The SWRCB will consider adopting the Regulations at its August 3, 2021, Board Meeting.  If adopted, the Regulations could become effective by mid- to late-August and remain in place for up to one year, depending on drought conditions.

Interested parties must submit written comments related to the draft emergency regulation text to commentletters@waterboards.ca.gov, with a copy to Bay-Delta@waterboards.ca.gov by 12:00 noon on July 29, 2021, to be considered before the August 3, 2021 Board Meeting.  Those parties can also provide oral comment at the Board Meeting.

What does this mean?

The SWRCB’s adoption of the Regulations and the Deputy Director’s issuance of curtailment orders could result in more than 10,000 water right holders, primarily farmers, being barred from diverting and using water to which they are accustomed and on which they rely.  Based on the SWRCB’s analysis, water is currently “unavailable” to approximately 5,700 water right holders.  If the SWRCB adopts the Regulations and they come into effect by mid-August, water right holders whose supplies are “unavailable” can expect to receive curtailment orders shortly thereafter.

The State Water Board appears to be relying, at least in part, on the recent case of Stanford Vina Ranch Irrigation Co. v. State of California (2020) 50 Cal.App.5th 976 for its authority to issue the Regulations and curtailment orders.  In Stanford Vina, the Court upheld the SWRCB’s regulatory and enforcement actions on specific Sacramento River tributaries during the 2014-15 drought.  Given the breadth of the Regulations and potential curtailment orders, however, water users are likely to challenge the SWRCB’s authority to curtail their use in this manner.

Water users that are subject to the Regulations and receive curtailment orders may experience hardship and injury.  Attorneys at Somach Simmons & Dunn understand this area of the law and can help affected water users.  If you have any questions or concerns on this topic, please contact Kyler Rayden at krayden@somachlaw.com or Aaron Ferguson at aferguson@somachlaw.com.  Max Bricker is a contributing author and summer Law Clerk with Somach Simmons & Dunn.  He can be reached at mbricker@somachlaw.com.

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