In January 2015, the State Water Resources Control Board’s (State Water Board) Division of Water Rights (Division) released a report reviewing its process of curtailing water rights in response to the drought.  The Dry Year Program Report (Report) reviews the State Water Board’s recent curtailment actions and the quantity and quality of data that informed its curtailment decisions to identify recommendations that will improve curtailment processes in future dry years.

In its review of the State Water Board’s current capabilities and needs to properly administer California’s water rights system, the Report identified problems with the Division’s ability to collect timely diversion data, the quality of that data, and the lack of updated analytical tools to make certain water supply and allocation determinations.  Accordingly, the Report recommends improving the accuracy and timeliness of water supply and demand data to timely determine existing water availability; increasing early and regular coordination and communication with water rights holders so that parties are aware of curtailments as early as possible and can plan to augment their water supplies; and developing additional tools and authorities for analysis and enforcement of the water rights system.

Throughout the 2014 water year the State Water Board complained about the accuracy and timeliness of water supply and demand data available when making curtailment decisions.  To address this situation and implement the above recommendations, the Report calls for several changes to existing measuring and reporting requirements so that the quantity and quality of water use data is reliable and accurate.  The Report recommends requiring riparian and pre-1914 appropriative water right holders to file annual statements of diversion and use, rather than requiring such statements be filed only once every three years.  The Report further recommends that reporting forms should be updated so that diversion data can be assessed to determine whether a diversion is a direct diversion or diversion to storage, and whether water is diverted according to a supply contract or transfer agreement.  In addition, the Report recommends that measuring devices based on best professional practices or best available technology should be required at all points of diversion, including for riparian and pre-1914 appropriative water right diversions; alternatively, the exemption from measuring-device requirements should be eliminated or at least further defined so that the statements for diversion and use of these water rights are better quantified.

The implementation of several of the recommendations included in the Report will require legislative action, especially those altering the State Water Board’s authority to require the installation of certain measuring devices and the annual reporting of riparian and pre-1914 appropriative water rights.  Somach Simmons & Dunn will continue to monitor and report on any administrative and legislative actions of the State Water Board.

For more information, please contact Jason Canger at jcanger@somachlaw.com.

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