SACRAMENTO — With the drought continuing to exact its toll, on Wednesday the State Water Resources Control Board (SWRCB) voted unanimously to adopt an emergency regulation that will require junior water right holders throughout the state to stop taking water once they receive a curtailment order from the agency.
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The decision came after a full day of hearing testimony on Tuesday followed by a half day of discussions on Wednesday.
SWRCB Chair Felicia Marcus repeatedly said the regulation was needed to ensure that those with senior water rights were protected. However, that statement seemed at odds with what SWRCB staff initially recommended, as they proposed that both junior and senior water rights users be included in the new regulation.
Junior water rights holders are generally those with water rights granted after 1914, when the current water right system was put in place. Senior water rights holders are those whose water rights existed before 1914 and those whose property abuts a water course (called riparian rights).
According to SWRCB staff, there are approximately 18,410 water users in the state with post-1914 water rights and 15,770 with pre-1914 and riparian claims.
The curtailment area where the new regulation applies includes the Sacramento River watershed, the San Joaquin River watershed, the Russian River above Dry Creek and Scott River.
SWRCB staff noted that many water right holders in the state have a mix of water rights as well as a mix of sources for water, such as contract water, surface water rights, groundwater and in some cases recycled water. Thus, even if some of their water is curtailed because it is post-1914, they may still have other sources of water to draw on.
Prior to the meeting, the agency sent out 9,437 curtailment notices to different water users. However, those users still have the right to appeal the decision or to request an exemption due to human health or safety concerns if no other source of water is available. Other exemptions also apply.
Staff said the new regulation was needed to put some teeth into the existing process as the one they now use takes too long to enforce. Currently a hearing is required before the agency can take action. Staff claimed that in some cases that delayed action by months or even years. The new emergency regulation allows them to immediately fine or take administrative action against those who fail to comply.
Fines associated with noncompliance will also go up. Currently, if SWRCB has to issue a cease and desist order to a water user, the penalty is $1,000 a day or $2,500 an acre-foot. This applies to both pre and post-1914 and riparian water users. The new regulation allows a further $500 a day fine against post-1914 water users if they continue to divert after being notified to curtail.
A matter of trust
While the SWRCB went on to approve most of what staff was recommending, it was clear board members were uncomfortable with the regulation as written in which all water rights were subject to curtailment and with other language in the regulation.
Chair Marcus initially said she was unsure a one size fits all regulation was the answer. However, she also speculated it might lead to a more robust water rights system.
Others on the board, however, expressed more severe reservations.
Board member Tam Doduc relayed a conversation she had with a close friend about how trust or the lack of it figured into the equation. “People don’t trust us,” she said, adding that she only favored proceeding with curtailing post-1914 rights for now while taking up riparian and pre-1914 rights later. Board member Steven Moore concurred, adding that a hydrology study should be prepared prior to considering any curtailment of pre-1914 and riparian rights.
Those comments ultimately led to revisions in the regulation along with warnings from the board that staff could soon be overwhelmed with requests for hearings to appeal the curtailment orders.
After the meeting, Tom Howard, the executive director of the State Water Resources Control Board, said they will only use the new regulation with those with post-1914 water rights, while the old two-step process will continue to be used when there are problems with riparian or pre-1914 water users.
“We have already sent curtailment notices to everyone in the Central Valley with a post-1914 right, but we did it using the existing regulations,” he said. “Now with the new regulations, if we do an inspection and find they are diverting water, we can issue them a fine immediately. We don’t have to wait any more.”
Howard said those with junior water rights will no longer be able to take water. However, if they have additional senior rights, and many agencies and individuals have multiple rights, he added, then they will be able to continue taking that water.
Questioned about the issue raised by some on Tuesday that the state was implementing the new regulation primarily to protect the water supply in federal and state reservoirs, Howard said all they were doing was implementing the state’s water right priority system.
“In the Central Valley, the State Water Project (SWP) and the Central Valley Project (CVP) have been ordered by the board to guarantee the flows necessary in the Delta to meet all the objectives,” he said. “Which means they have to release enough water to make up for all the depletions in the Central Valley that are going on that otherwise would reach the Delta. So we are using the water right priority system to curtail junior water right holders because the SWP and the CVP are the overall guarantors of water in the Central Valley and a lot of the time any curtailment of a junior water holder accrues benefits to the SWP and CVP because they have to release less stored water to meet Delta objectives. The ultimate consequence is it will result in the protection of project stored water. I’d also like to add that stored water is the most senior water in the valley. Under water law it’s property. So it’s the most senior water of all.”
As to the question raised by some in the hearing that the agency doesn’t have the authority to regulate pre-1914 and riparian rights, Howard said, “From our perspective, when someone is diverting unlawfully, it doesn’t matter if they have post or pre-1914 water rights. We have the authority to administer the water right system and can issue fines for unlawful diversions.”
The new regulation is expected to go into effect on or about July 14 and is good for 270 days. But Howard said if demand drops or supplies go up once the state gets rain later this year, then the agency would send out a notice saying the curtailment is lifted.
“It’s a critical drought,” he said. “People need to conserve water. There really isn’t water available for all the things people are used to and we all need to do what we can to conserve water.”
Contact Dawn Hodson at 530-344-5071 or firstname.lastname@example.org. Follow @DHodsonMtDemo on Twitter.