On July 2, the State Water Resources Control Board (“Water Board”) approved emergency regulations authorizing it to issue immediately enforceable curtailment orders to holders of surface water rights in California.
The new regulation authorizes the Water Board, upon determining that “flows are sufficient to support some but not all diversions,” to issue curtailment orders to post-1914 appropriative (a.k.a., “junior”) water right holders in order of water right priority, beginning with the most junior water user.
The Water Board may also issue curtailment orders to senior--i.e., riparian and pre-1914 appropriative--water right holders if it receives: (i) a complaint alleging that a senior holder is interfering with a water right, or (ii) information that a senior holder is unlawfully diverting stored water.
Because curtailment orders issued under the emergency regulation are immediately enforceable, water right holders who violate an order are subject to penalties that begin to accrue from the date of violation. By contrast, prior to adoption of the regulation, the Water Board could only issue notices of curtailment, which were not themselves enforceable, but rather required case-by-case investigations of alleged violations followed by commencement of administrative proceedings against the violator before an enforcement order could issue.
A water right holder who is subject to a curtailment order under the new regulation may petition the Water Board for reconsideration of the order. Within 30 days of receipt of the petition, the Water Board must conduct an initial review to determine if the petition raises “significant factual issues that are likely to merit reconsideration,” and if so, must immediately suspend the curtailment order until the petition is heard. Unless suspended by the Water Board, curtailment orders may remain in effect for up to 270 days.
The adopted emergency regulation will now be submitted to the Office of Administrative Law, and will likely take effect in mid-July. The proposed resolution adopting the regulation, as well as the final revisions to the resolution and regulation language, can be found here.
The Water Board makes information about its drought year water actions available on its website.