On May 21, 2014, the State Water Resources Control Board (State Water Board) held a workshop to receive comments on proposed options for curtailing Post-1914 water diversions in the Sacramento-San Joaquin River Delta watershed during the current drought.  The proposed options engendered a significant response from water rights holders, both in the form of written comments and testimony at the hearing.  In light of this considerable response, the State Water Board ultimately directed staff to follow the option that respects the water rights rule of priority.

Curtailment Options

During the hearing, State Water Board staff outlined four curtailment options.

Option 1:  Under the first option, the State Water Board would use its existing authorities to issue curtailment notices when water is unavailable under a water right holder’s water right priority.  The State Water Board would issue curtailment notices according to the priority system by starting with the most junior diverters until supply and demand estimates are equal.  The curtailment notices under this option would not constitute enforceable orders.  To enforce these notices, the State Water Board could proceed to impose fines of $1,000 per day and $2,500 per acre foot after notice and a hearing on any illegal diversions.  Under this option, the State Water Board could also issue a cease and desist order to a diverter that it believes is diverting illegally.  Violations of a cease and desist order in this drought year could subject a diverter to a penalty of $10,000 per day.

Option 2:  State Water Board staff also proposed issuance of curtailment notices pursuant to emergency regulations.  (See Wat. Code, § 1058.5.)  Under this option, the State Water Board would require water right holders to curtail their diversions when natural flows in the Delta watershed are insufficient to support diversion under their priority, unless those diversions are necessary for health and safety purposes.  State Water Board staff offered that this approach would be more effective because violations of the emergency regulation would be immediately enforceable by the State Water Board.  In other words, in contrast to Option 1, the State Water Board would not have to proceed through a notice and hearing on a diverter’s particular diversion before issuing a fine for violation of the regulation.  Commenters expressed concern that this approach could result in diversions for “health and safety” being placed ahead of diversions needed for irrigation or other uses, regardless of priority.  Commenters also noted that Water Code section 1058.5 only authorizes curtailments when water is not available under a diverter’s priority of right, and that the State Water Board has yet to make such a showing.

Option 3:  The third option proposed by staff would use emergency regulations to expand “Term 91” to all post-1914 appropriative water rights in the Delta watershed.  The proposed Term 91 regulation would curtail diversions when natural flows are inadequate to meet prior water rights and Delta outflow requirements, unless the diversions are needed for minimum health and safety purposes, and alternative supplies are not available.  Currently, Term 91 is included in post-1965 water rights permits/licenses in the Delta watershed.  Term 91 prohibits diversions when upstream reservoir releases and unregulated flow equal in-basin demands and Delta exports and the Central Valley Project (CVP) and State Water Project (SWP) are releasing stored water to meet Delta water quality requirements.  Rather than Term 91 applying to water right holders that are junior to the CVP and SWP, the State Water Board’s proposed Term 91 regulation would prohibit all post-1914 water right holders from diverting when the CVP and SWP are releasing stored water to meet Delta water quality requirements.  Many commenters noted that this option would improperly side-step the evidentiary hearing that is required to assign responsibility for meeting Delta water quality objectives.

Option 4:  Finally, the State Water Board discussed an emergency regulation to implement the existing Term 91 permit conditions.  Instead of curtailing diversions of natural flows to meet Delta outflows and water quality requirements, the CVP and SWP would be responsible for meeting such flows.  Currently, the CVP and SWP are required to meet such requirements.  Many commenters expressed confusion about what this option was intended to accomplish, noting that this approach would appear to reach the same result as if the State Water Board simply imposed Term 91 on those with the term in their permit/license, absent a regulation.

Comments and Process Moving Forward

The majority of commenters recommended that the State Water Board follow Option 1, arguing that it was the only legal option for issuing curtailment notices because it would respect the water rights rule of priority.  State Water Board Executive Director, Tom Howard, with general State Water Board support, indicated that he will send curtailment notices to post-1914 water right holders in the next several days, consistent with Option 1.  The State Water Board indicated that there will be no further consideration of Options 3 and 4 this year.  The State Water Board, however, indicated that it would continue to evaluate whether emergency regulations, as set forth in Option 2, are needed this year.  The State Water Board indicated that it would begin reviewing when to send curtailment notices to pre-1914 water rights holders and riparian water right holders.

The State Water Board’s staff report for the curtailment workshop is here.

For more information concerning the State Water Board’s curtailment workshop, please contact Aaron Ferguson at aferguson@somachlaw.com.

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