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As predicted, from May 27 to May 29, 2014, the State Water Resources Control Board (State Board) sent out curtailment letters to junior water rights holders in the Sacramento and San Joaquin Watersheds notifying all holders of post-1914 appropriative water rights to immediately stop diverting water under those rights.  The two exceptions to curtailment include (a) if a post-1914 right is the only source for human health and safety or (b) if the diversion is for hydropower generation and all water diverted is returned to the stream.  In addition, on May 27, 2014, the State Board sent out curtailment letters to junior water right holders located upstream of the confluence of Dry Creek with the Russian River with a priority date of February 19, 1954 or later.  The same exceptions to curtailment apply on the Russian River.

The State Board may issue curtailment notices when the volume of water available in a surface water source is insufficient to meet the needs of existing water right holders and in-stream uses.  Notices of curtailment are based on California’s water rights priority system.  Although the State Board has issued curtailment notices on a watershed-specific basis with relative frequency, the last major statewide curtailments happened in the 1970’s and 1980’s.  The recent notices came following the State Board’s May 21, 2014 Workshop.  For information on that hearing, please see this article.  It remains to be seen whether the State Board will explore other options for curtailment, including the adoption of emergency regulations and curtailment of more senior water rights.

Failure to comply with a curtailment notice may result in administrative fines, cease and desist orders, or prosecution in court.  The State Board may levy fines of $1,000 per day of violation and $2,500 for each acre-foot diverted in excess of a valid right.  Moreover, failure to comply with a State Board cease and desist order can result in a fine of $10,000 per day.

For more information on the curtailment notices, please contact Richard S. Deitchman at (916) 446 7979 or rdeitchman@somachlaw.com.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.