State Water Board Issues Emergency Regulations for Curtailments in Delta Watershed

August 17, 2021

The State Water Resources Control Board (“State Water Board”) issued emergency regulations on August 3, 2021, authorizing Board staff to curtail diversions and require informational reporting from water users in the Sacramento-San Joaquin Delta watershed (“Delta Emergency Regulations”). The regulations, which are expected to be finalized by the Office of Administrative Law in the coming days, set parameters for information gathering and determination of supply and demand in the watershed as well as the issuance of curtailment orders upon determination of water unavailability. The regulations also contain significant monetary and injunctive penalties for non-compliance.

Scope of Regulations and Water Right Holders Potentially Affected

Enacted in response to Governor Newsom’s May 2021 declaration of a drought emergency in 41 California counties, the Delta Emergency Regulations authorize the State Water Board’s Deputy Director to curtail direct diversions and diversions to storage of natural or abandoned flows in the Delta Watershed. (Delta Emergency Regulations, § 876.1(a, b).) Orders for curtailment would be triggered by a determination by State Water Board staff that flows in the watershed are insufficient to support all diversions, and would be based on priority of right, with riparian diverters presumed under the regulations to be most senior in the absence of any evidence to the contrary. In making decisions on the scope of curtailments, the Deputy Director will consider information related to the dates of priority for each right; monthly demand projections and data generated from reported water use in 2018, 2019, and 2020; and water supply projections. The State Water Board’s July 2021 Water Unavailability Methodology for the Delta Watershed, or “comparable tools” will guide the evaluation of supply and demand for the watershed.(Delta Emergency Regulations, § 876.1(d).)

In addition to curtailment orders, the regulations authorize the Deputy Director to issue informational orders requiring a water right holder, diverter, or water user to provide additional information related to diversion and use of water in the watershed. The requested information might include: additional reporting of water diversions and use; the basis of right with supporting documents or other evidence; property patent date for the place of use; the date of initial appropriation; anticipated or actual water transfer amounts; and historic use. Failure to comply with an informational order, as with curtailment orders, could subject the user to civil liability and penalties. (Delta Emergency Regulations, § 879(d).)

Application and Exceptions

Because the Regulations are limited to diversions of natural or abandoned flows, diverters who receive contract water or have a contract or right to previously stored water in the Delta watershed may continue to divert within the scope of those contracts or rights. Likewise, non-consumptive uses that do not decrease downstream flow may be exempt from curtailment, though such users must provide a certification demonstrating their eligibility for an exception. These potentially exempt diversions include diversions for hydropower, dedications to instream flow, and limited direct diversions within the legal Delta. (Delta Emergency Regulations, § 878).

Water users may also propose alternatives to curtailments that still achieve the goals of curtailment orders. Any proposed sharing agreement must be detailed in a proposal to be submitted to the Deputy Director, including sufficient information to demonstrate that the proposed agreement would not injure non-party water users and would not unreasonably impact fish and wildlife. In reviewing such proposals, the Deputy Director may request additional information and consult with relevant agencies, such as the Bureau of Reclamation, the Department of Water Resources, or the Delta Watermaster. Interested parties can provide comment or objections on a proposed agreement to the Deputy Director, and notices of both proposals and decisions on such proposals will be posted on the State Water Board’s Delta drought page “as soon as practicable.” (Delta Emergency Regulations, § 878.2.)

Enforcement and Modification

The Delta Emergency Regulations are subject to approval by the Office of Administrative Law, and are currently under review by that entity. Once approved, they will continue to be in effect for up to one year, or until the emergency conditions that prompted the adoption of the regulations (namely, the Governor’s declaration of a drought emergency) no longer persists.

Independent of the duration of the Regulations or general drought declaration, no later than October 1, 2021, the Deputy Director must review reliable information on water availability increases, demand reductions, and projected increases due to precipitation and consider whether any curtailments should be modified or suspended. That effort must then be revisited in no less than 30-day intervals for the remainder of the time the Regulations are in effect. (Delta Emergency Regulations, § 876.1(g).)

Once in effect, the Delta Emergency Regulations will include penalties for violations of the State Water Board’s curtailment or information orders, including civil fines of up to $500 per day for failure to comply. (Delta Emergency Regulations, § 879.2.) Users who receive a curtailment order should review it carefully, and take immediate steps to respond or seek additional counseling regarding their status under the order.

Our attorneys are tracking these developments, and stand by to answer your questions related to these and other drought year water supply developments.