Immediate Curtailment of Post-1914 Appropriative Water Rights
May 29, 2014
On May 27, the State Water Resources Control Board (“Board”) issued a notice of unavailability of water and immediate curtailment of all diversions under post-1914 appropriative water rights in the Sacramento and San Joaquin watersheds (“Notice”). The Notice also warns that the Board may curtail some pre-1914 appropriative water rights, and even some riparian water rights, in the future if current conditions persist.
Under the Notice, all holders of post-1914 appropriative water rights in the Sacramento and San Joaquin watersheds must immediately stop diverting water under those rights. The curtailment will last “until water conditions improve,” as determined by the Board, and applies even if water is physically available at a post-1914 water right holder’s point of diversion. Water right holders who are affected by the Notice are required to complete an online “Curtailment Certification Form” within seven days of receiving the Notice.
The Notice provides two key exceptions. First, diversions under post-1914 appropriative water rights may continue in cases where such diversions are the only source for meeting “human health and safety purposes.” Second, diversions may continue for purposes of hydroelectric power generation, but only if all water diverted is returned to the stream. Right holders who will continue diversions under either exception must provide that information in their Curtailment Certification Forms. In addition, those who divert water pursuant to settlement contracts (such as the Sacramento River Settlement Contractors, Feather River Settlement Contractors, and the North Delta Water Agency) may, with respect to their water rights included in the settlement, rely on their contracts to continue diversions and are not affected by the Notice.
Violating the curtailment order could result in serious penalties. Unauthorized diversion of water is a trespass against the state, and administrative penalties for unauthorized diversions can reach up to $1,000 per day and $2,500 per acre-foot, even if a cease and desist order has not been issued. Violation of a cease and desist order can reach up to $10,000 per day.
The order will potentially have a dramatic effect on water users statewide. We will be working with clients to determine the precise effect of the curtailment order upon their water diversions, and to identify and pursue potential practical and legal responses to the order, as well as to respond to any enforcement actions resulting from the order. If you have questions regarding the order’s effect on your water diversions or how you might respond to the order, Downey Brand attorneys will be pleased to assist you.