A new California law requires water rights holders around the state to begin reporting pre-1914 and riparian water diversions to the State Water Resources Control Board (“Water Board”) by July 1, 2010 or face penalties of $1,000 and up to $500 per day. Previously, riparian and pre-1914 water rights holders could abstain from reporting without consequence, and diverters in the Sacramento-San Joaquin Delta (“Delta”) were exempt from reporting their diversions. The new law also includes an appropriation for twenty-five additional water rights enforcement personnel at the Water Board to enable the state to better investigate and halt unauthorized diversions. While ostensibly meant to address the “lack of information on the quantity and timing of diversions” in the Delta, these new reporting penalties and enforcement personnel will undoubtedly lead to increased scrutiny by the Water Board and downstream users over individual diversions, as well as by other agencies and citizens groups looking to restore instream flows.

California, unlike most states, developed a dual system of water rights that recognizes both appropriative and riparian water rights. With the Water Commission Act of 1913, the state established a permitting system, now run by the Water Board, for the appropriation of surface waters from late 1914 forward. But that system does not apply to riparian rights and was not retroactive to appropriative water rights vested before 1914. Consequently, the Water Board generally does not have jurisdiction to adjudicate riparian and pre-1914 appropriative rights; that jurisdiction is reserved to the courts.

Since 1966, the state has required most riparian and pre-1914 water rights holders to file statements of diversion and use. Given the Water Board’s limited jurisdiction and the absence of any consequences for failing to comply with these reporting requirements, however, many riparian and pre-1914 rights holders declined to file diversion statements. And diverters in the Delta were completely exempt from reporting those diversions.

In response to increasing frustrations over the lack of information gathered under the old reporting requirements, as well as concerns over unauthorized diversions in the Delta, the Legislature, in a November 2009 extraordinary session, passed Senate Bill X7 8 (“SB 8”). SB 8 imposes new civil liability on riparian and pre-1914 appropriative rights holders who, after July 1, 2010, fail to file statements of diversion and use. It also removed the reporting exemption for diverters in the Delta. These new penalties and reporting requirements do not provide the Water Board with additional regulatory powers, but together they will empower the Water Board and others to help monitor and eventually enforce the state’s water laws more effectively. Indeed, recent efforts by the Water Board to determine the validity of pre-1914 and riparian rights have already survived an initial court challenge. (Central Delta Water Agency v. State Water Resources Control Bd., Sacramento Co. Sup. Ct. Case No. 34-2010-80000520 (May 4, 2010).) In that litigation, the Water Board is asserting its jurisdiction to investigate and decide whether particular water diversions are authorized by riparian or pre-1914 rights, as well as its power to force the diverter to halt any unauthorized diversions or use.

The reports due July 1 require information such as the location of each point of diversion, the capacity of diversion works and storage reservoirs, the months water was diverted, the purpose of use, and the year the diversion was commenced. Separate reports must be filed for each point of diversion. The Water Board says that it will not accept the reports if the diverter does not specify the type of diversion that is claimed—whether it is under riparian or pre-1914 appropriative rights—and the reports must be made under “penalty of perjury.” Finally, beginning January 1, 2012, diverters must measure and report their monthly diversions using “best available technologies and best professional practices.”

The legislative analysis of this new law observes that, “in recent years, there has been a surge in water rights and reporting litigation, much of it focused on diversions from the Delta watershed.” Tellingly, the law also says that the diversion reports cannot be used as evidence to support a right to divert the water claimed, but it does not say the opposite—namely, that the Water Board and downstream users cannot use the statements against the diverter. Armed with this new information about diversions, as well as with the Water Board’s new enforcement resources, this “surge” in litigation over water diversions in the Delta and throughout the state will undoubtedly continue. Thus, it is more important than ever for water rights holders to accurately monitor and report their diversions and use, and to start preparing to defend their rights if and when they are challenged.

 
Peter Prows
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630

Disclaimer: In our Newsletters and Bulletins, Briscoe Ivester & Bazel LLP intends to present general information to the public and does not intend to provide legal advice pertaining to a particular situation.

 

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