Drought Deepens – State Water Resources Control Board Adopts New Stricter Rules

In an effort to enhance the ability to investigate drought-related water right matters, last week the State Water Resources Control Board adopted new rules that would require water users to provide information related to the user’s asserted water rights and diversions. The Board also adopted more restrictive urban conservation rules and renewed emergency minimum flow requirements for specific tributaries to the Sacramento River. Each action was made pursuant to authority afforded by the legislature last year and based on findings that an emergency exists due to the ongoing severe drought conditions.

Based on experience conducting nearly 950 field investigations regarding curtailment notices issued in 2014, the Board found that many persons who received curtailment notices continued to divert under previously unclaimed rights or contracts. As the Board confronts continued dry hydrologic conditions in 2015 and intends to administer the water right system again by issuing curtailment notices, the new rules authorize the Deputy Director of the Division of Water Rights to issue orders against water right holders to obtain information on previously unclaimed rights, including the claim of right, property patent date, the date of initial appropriation and diversions made or anticipated during the current year. This is similar to the information that the Board required earlier this month from water right holders in the San Joaquin and Sacramento watersheds in response to complaints regarding alleged interference with senior water rights and unauthorized diversions of stored water. The regulation has been submitted to the Office of Administrative Law for approval and will become effective upon filing with the Secretary of State.

The Board also renewed and added to emergency urban conservation rules adopted last year. Noting that water conservation is the easiest, most efficient and most cost-effective way to quickly reduce water demand and save water supplies for next year, the new rules require urban water suppliers (those who serve more than 3,000 customers or supply over 3,000 acre-feet of water per year) to implement water shortage contingency plans that limit the number of days allowable for outdoor watering or to impose new rules that limit outdoor watering to no more than 2 days per week. Other public water suppliers must continue to limit outdoor irrigation to no more than two days per week or achieve a 20 percent reduction in water consumption relative to 2013. In addition, all water users in California must refrain from outdoor watering for 48 hours following measurable rainfall and restaurants may only serve water upon request. The rules also enhance reporting requirements to include descriptive statistics on water conservation compliance and enforcement efforts. The Board left in place water conservation standards prohibiting runoff from outdoor landscape irrigation and the use of potable water on driveways and sidewalks or in non-recirculating fountains.

Among its suite of emergency drought actions, the Board also extended minimum flow requirements adopted in 2014 for Mill and Deer Creeks and decreased baseflow requirements in Antelope Creek. According to the Board, these creeks are important for the survival and recovery of salmon and steelhead in North California and the flow requirements are designed to buffer the effects of drought on stream flow and water temperature requirements for these fish species.

Notably, however, the Board did not consider and no proposal has been made to renew emergency curtailment regulations that were adopted amidst vigorous debate last year. In July 2014, the Board adopted an emergency rule allowing the Deputy Director to issue immediately enforceable curtailment orders upon certain findings of water availability and demand without conducting individualized analysis or a hearing. To date the Board has not issued any curtailment orders pursuant to the new rule, which will automatically expire in April 2015. It is unlikely that the Board will issue any such curtailment orders in the waning days of the hotly disputed regulation.