New Regulations Up the Ante for California Water Diverters
Beginning next January, a new State Water Resources Control Board regulation will impose strict new measuring and reporting requirements for water rights holders across California—with stiff daily penalties for noncompliance. In total, the new regulation will impact approximately 12,000 water users, reaching down to those who divert just 10 acre-feet per year or maintain stockponds with a mere 10 acre-feet capacity. Failure to meet the host of new requirements could leave people liable for penalties of up to $500 per day.
This regulation affects the gamut of water users, including those claiming riparian and pre-1914 appropriative rights and persons authorized to appropriate water under a permit, license, registration, or stockpond certificate. Virtually anyone diverting or storing at least 10 acre-feet of water will have to measure his or her diversions and use, and report annually to the State Board.
The State Board can increase reporting requirements to monthly, daily, or even shorter intervals during times of insufficient supply—a standard loosely defined by the regulation, which leaves agency discretion to decide when “available supplies in a watershed are sufficient to support some but not all project diversion demands”.
The new regulation also eliminated a popular exception—utilized by approximately 75% of diverters under prior regulations—that excused compliance when “not locally cost effective”. Instead, users must now apply for what is called “alternative compliance”. Under this new exception, users can have their “alternative compliance plans” approved if “strict compliance . . . is not feasible, would be unreasonably expensive, would unreasonably affect public trust uses, or would result in the waste or unreasonable use of water”.
The regulation will phase-in over the next two years, with compliance deadlines based on total diversions or storage capacities. Those who divert or store the most face the shortest compliance deadline, beginning 1 January 2017. These large diverters must also comply with the strictest requirements: they must use the most accurate measuring equipment, have it installed by a professional engineer or contractor, and be capable of recording data on an hourly basis. The smallest class of regulated users—the approximately 5,000 people who divert or store 10 to 100 acre-feet—face a later 1 January 2018 phase-in date. The requirements for these users are also less-stringent, as they can use less accurate measuring equipment and can have it installed by “individuals experienced with measurement and monitoring”. Nonetheless, preparing for compliance could still cost thousands of dollars.
Questions remain as to what, exactly, all this new data will be used for, and who, precisely, will have access to it. One possibility can be gleaned from the regulation’s text, which, beginning in 2020, mandates that the largest diverters provide “telemetered diversion data via a public website that displays the data on at least a daily basis”. Another possibility is that State Board will use rapid reporting to determine who will receive curtailment notices—letters from the State Board demanding water rights holders stop or slow use. (According to some courts, the State Board’s use of curtailment notices can violate the constitutional right to due process, which requires prior notice and a hearing before depriving one of his or her property rights, including water rights. See e.g. West Side Irrigation District v. California State Water Resources Control Board, Sacramento Sup. Ct. Case No. 34-2015-80002121 (July 10, 2015).)
California water diverters should be prepared for compliance with the new regulation, and for any other impacts that may flow from it.
Click here to view the regulation in its entirety.
Peter Prows and Max Rollens
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630