In the midst of the driest year in recorded state history, on January 17, 2014, Governor Brown declared a State of Emergency due to drought conditions in California.  Under state law, a “State of Emergency” is a condition of extreme peril to the safety of persons and property caused by, among other forces, drought, which is beyond the control of any one local government and requires mutual aid forces.  (Gov. Code, § 8625(b).)  The Governor’s declaration provides more flexibility to state agencies when dealing with water transfers.  It also highlights the Governor’s interest in the State Water Resources Control Board (State Water Board) exercising its regulatory authority with respect to curtailing water use consistent with the water rights priority system.

The Governor’s declaration suspends certain regulatory requirements.  Government Code section 8571 otherwise allows the Governor to suspend any regulatory statute during a statewide emergency.  The Governor directed the State Water Board to consider consolidating the places of use for the State Water Project (SWP) and federal Central Valley Project (CVP) so that water users can transfer water between these vast places of use without having to petition the State Water Board for permission to make such a water transfer.  In regard to this action, the Governor’s drought proclamation suspends Water Code section 13247 and the California Environmental Quality Act (CEQA) for the purposes of the State Water Board’s consolidation of the places of use of the SWP and CVP.  Water Code section 13247 requires state agencies to comply with existing water quality control plans when taking actions that may affect water quality.  CEQA would otherwise require environmental review of the specified actions, a requirement that could severely delay implementation of such actions.  The Governor’s proclamation also suspends Water Code section 13247 and CEQA for the purpose of the State Water Board modifying the regulatory requirements for reservoir releases and diversion limitations established to implement a water quality control plan.  The Governor’s proclamation directs the Department of Water Resources (DWR) and State Water Board to maintain on their websites a list of activities or approvals for which the CEQA and Water Code section 13247 are suspended.

The Governor is again seeking to streamline water transfers.  He again directed DWR and the State Water Board to expedite the processing of water transfers, consistent with the Governor’s May 20, 2013 Executive Order B-21-13 (http://gov.ca.gov/news.php?id=18048).  Specifically, Executive Order B-21-13 directs the State Water Board to expedite review of water transfer petitions, and the DWR to facilitate transfer proposals.  Executive Order B-21-13 also directs both agencies to make all efforts to coordinate the relevant federal, state and local agencies on review and approval of such transfers.

Importantly, the Governor directed the State Water Board to put water right holders on notice that they may be directed to cease or reduce water diversions based on water shortages.  To this end, on Friday, January 17, 2014, the State Water Board issued a Notice of Surface Water Shortage and Potential for Curtailment of Water Right Diversions (Curtailment Notice).  The Curtailment Notice states that, “if dry weather conditions persist,” it may be necessary for the State Water Board to “notify water right holders in critically dry watersheds of the requirement to limit or stop diversions of water under their water right, based on their priority.”  While the Curtailment Notice acknowledges that the most junior right holders will need to curtail diversions first, the State Water Board also notes that some riparian and pre-1914 water right holders may receive a notice to stop diverting pursuant to “Term 91,” which requires diverters downstream of reservoirs to stop diverting when stored water is being released and there is no natural flow available for diversion.  The State Water Board will likely follow any curtailment notices with field inspections to enforce the water rights priority scheme.

The Governor’s drought proclamation addresses other areas of interest to water users.  With regard to groundwater, the Governor’s proclamation directs DWR to “evaluate changing groundwater levels, land subsidence, and agricultural land fallowing,” and provide a public update by April 30, 2014.  The public update is to identify areas with shortages and gaps in monitoring.  Also, the Governor directed the Department of Fish and Wildlife to determine whether it will be necessary to restrict fishing in certain water bodies if the drought persists.

The Governor’s drought proclamation clearly anticipates using state resources for an emergency-type response.  The Governor directed the state’s Drinking Water Program to ensure that small communities in danger of running out of drinking water receive the technical and financial assistance necessary to provide drinking water to those in need.  DWR is to work with counties to ensure groundwater well logs are timely submitted so that the state may work with local authorities to notify areas that may experience problems with residential groundwater resources.  Consistent with this directive, California’s Drought Task Force is required to develop a plan to provide emergency food supplies, financial assistance, and unemployment services to areas that suffer from the drought.

For more information, please contact Aaron Ferguson at aferguson@somachlaw.com.

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