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As discussed in our July 28, 2021, Policy Alert, the State Water Resources Control Board (SWRCB) recently adopted the Draft Emergency Reporting and Curtailment Regulation (Regulation), to authorize curtailments of water diversions in the Sacramento-San Joaquin Delta (Delta). The Regulation was approved by the Office of Administrative Law and became effective on August 19, 2021. While the Regulation automatically expires on August 18, 2022, one year after approval, the SWRCB is permitted to renew the Regulation if it determines that either (1) 2022 is a critically dry year immediately preceded by two or more consecutive below normal, dry, or critically dry years, or (2) the Governor has issued a proclamation of a State of Emergency based on drought conditions. It is likely that, if 2022 is declared a critically dry year, option (1) will be satisfied such that the SWRCB is authorized to renew the Regulation absent a new emergency proclamation.
On August 20, 2021, the SWRCB announced that it had issued curtailment orders to approximately 4,500 of 6,000 water right holders in the Delta, including holders of pre-1914 appropriative water rights and riparian water rights.
The duration of the curtailment orders varied according to the location of each water right diverter. Curtailments were ordered for the remainder of August for the following: (1) post-1914 appropriative rights in the Delta, (2) pre-1914 appropriative rights in the San Joaquin River watershed, (3) pre-1914 rights dated 1883 or later in the Sacramento River watershed, and (4) certain pre-1914 appropriative rights on specific tributaries to the Sacramento River with a priority date of earlier than 1883.
Additionally, curtailments will continue through September 2021 for the following: (1) post-1914 appropriative rights and pre-1914 appropriative claims in the San Joaquin River watershed, (2) riparian claims in the American River watershed upstream of Folsom Reservoir, (3) certain Central Valley Project and State Water Project rights in the Sacramento River watershed and the Delta, and (4) certain pre-1914 appropriative claims and post-1914 appropriative rights on specific tributaries to the Sacramento River.
While curtailments are expected to end on September 30, 2021, the curtailment orders may serve as an example of similar curtailment orders to be issued by the SWRCB in the 2022 irrigation season.
Curtailment orders were issued to two categories of diverters: those who use or have a right to divert less than 5,000 acre-feet per year (“Small diverters”), and those who use or have a right to divert 5,000 acre-feet or greater each year (“Large diverters”). All diverters who receive curtailment orders are required to monitor SWRCB Delta Drought online resources, subscribe to the Delta Drought email subscription list, and complete a Compliance Certification Form by September 3, 2021. Large diverters must also complete monthly reporting of water diversion and use information for prior months, as well as monthly reporting of projected demand data due no later than the 10th of each month, beginning on September 10, 2021.
Violations of the curtailment orders may subject violators to fines of up to $1,000 per day of violation and up to $2,500 per acre-foot diverted or used in excess of the amount authorized by a water right.
Delta diverters have several avenues to modify or challenge present or anticipated curtailments. These may be particularly important given the likelihood that the SWRCB will issue curtailment orders in the 2022 water year if supplies remain low.
As described in the Regulation, diverters may obtain an exception to curtailment if either their water right or claim is used only for a non-consumptive use, or water diverted under the water right or claim is the diverter’s only source of water and is needed for minimum human health and safety needs. Diverters are required to submit a request for an exception by September 10, 2021, even if they have not yet received a curtailment order.
If a diverter believes their curtailment order is based on incorrect information, such as an incorrect water priority date, additional information may be submitted within 14 days of receipt of the order.
Diverters are permitted to submit alternative water sharing agreements that would serve the purposes of curtailment at any point. Proposals must describe the setting, parties, actions, monitoring, record keeping and reporting, and benefits of the agreement such that the SWRCB may determine that the agreement will not injure legal users of water or have an unreasonable impact on fish and wildlife.
The curtailment orders advise that recipients may file a Petition for Reconsideration of the curtailment order with the SWRCB by September 20, 2021, 30 days following issuance of the order. Because the curtailment orders were issued by the Deputy Director of the SWRCB, diverters must file a Petition for Reconsideration to be permitted to file a legal action in court challenging the curtailment order in the form of a petition for writ of mandate. A writ petition must be filed within 30 days of the date the SWRCB acts on the diverter’s Petition for Reconsideration.
If you have questions or concerns about the Delta Curtailment Orders, please contact Ellen Simmons at email@example.com or Aaron Ferguson at firstname.lastname@example.org.
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