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May 6, 2020  |  Written by Ellen M. Simmons

Term 91 Curtailments Expected; Other Water Rights Curtailments Unlikely for the Bay-Delta

During the May 5, 2020 State Water Resources Control Board Meeting, Staff and Board members provided an update on prospective water rights curtailments for 2020.

First, Staff discussed the potential for Term 91 curtailments.  Term 91 is included in permits and licenses granted after 1965 for diversion and use of water within the Delta watershed.  It allows the Board to give notice that water is not available for use under subject permits and licenses, thus requiring rights-holders to cease diverting waters.  Term 91 goes into effect when a calculation of net storage releases and imports to the Delta watershed, minus Delta exports, shows that the natural flow will not be sufficient to meet water quality standards, flow requirements, and/or in-basin demands.  Although the calculations currently indicate natural flow is sufficient, Staff indicated that conditions are likely to change in the next several weeks.  If it becomes clear that storage releases are required to maintain water quality and flow requirements in the Delta, Term 91 notices will likely be sent out in the near future.

Following the Staff presentation, Board members addressed the possibility of additional water rights curtailments.  Board Chair Joaquin Esquivel and Vice Chair Dorene D’Adamo both indicated that further water rights curtailments for Bay-Delta water users were unlikely to occur for the 2020 water year.  However, curtailments are likely for other portions of the State.  The April 28th U.S. Drought Monitor update indicates that portions of Del Norte, Siskiyou, Humboldt, and Trinity counties are presently experiencing Extreme Drought.  In light of these conditions, the Board is likely to proceed with curtailments for junior water rights holders in the Scott River watershed in Siskiyou County.  Those junior water rights holders were recently sent pre-notification emails from the Board Staff advising of the Board’s intent to issue formal notices of unavailability of water for their diversions.

For more information, contact Ellen Simmons at esimmons@somachlaw.com.  (This alert was updated on May 10, 2020.)

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