The fact that California is suffering its fourth year of drought conditions is not a new story — how the State should address this water shortage is the subject of much debate.

The California State Water Resources Control Board (State Water Board) has recently been flexing its muscles, determined to show water users and water diverters that it has significant enforcement power under existing Water Code provisions. After a Superior Court halted implementation of State Water Board Curtailment Notices issued in May through June, the State Water Board came out swinging in July with new sets of tried-and-true tools – Cease and Desist Orders and a Civil Complaint. Both weapons in the arsenal include proposed penalties.

Earlier in the month, a Sacramento County Superior Court had directed the State Water Board to stop enforcing thousands of Curtailment Notices issued by the State Water Board, on the grounds that the Curtailment Notices did not afford water users adequate due process. The Court went on to affirm the State Water Board’s enforcement powers, but warned that it could not use the prior curtailment notices as a basis for such enforcement actions.

On July 15, 2015, the State Water Board “clarified” the prior Curtailment Notices (referring to them as “advisory” in nature) and reissued Water Unavailability Notification Letters entitled “Partial Rescission of April, May and June 2015 Curtailment Notices and Clarification of State Water Board Position Re: Notices of Unavailability of Water for Those Diverting Water in the Sacramento River Watershed, San Joaquin River Watershed and Delta, and Scott River” (the “July 15 Clarification”). While rescinding the curtailment portions of the prior notices, the State Water Board, on the substantive issue of water availability, reinforces the notification that there is insufficient water in these particular rivers and watersheds to serve the needs of all potential water users. It also states that “Diversion when there is no available water….. is an unauthorized diversion and use and is subject to enforcement by the State Water Board.”

And the State Water Board began enforcement proceedings:

• On July 16 and 17, the State Water Board issued two Draft Cease and Desist Orders following the issuance of water unavailability notifications. The recipients of the Cease and Desist Orders (the West Side Irrigation District of Tracy and a private landowner in Trinity County face penalties of up to $10,000 a day.
• On July 20, the State Water Board issued a Draft Administrative Civil Liability Complaint alleging that a local irrigation district willfully disregarded the State Water Board’s advisory when it diverted water from a river for its own customers’ use. The potential cost? The State Water Board contends it could seek a penalty of more than $5 million, but instead proposes a $1.5 million fine be imposed on Byron-Bethany Irrigation District for its alleged improper water diversion.

A challenge will likely center on the role the earlier Curtailment Notices play in the current enforcement action. Byron-Bethany received a June 12, 2015 Curtailment Notice which the Superior Court found did not afford the recipients adequate due process. Byron-Bethany received the July 15 Clarification. The complaint is clear that the alleged improper diversion of water occurred between June 13 and June 25, 2015.

A draft complaint puts the Byron-Bethany matter in an administrative, quasi-judicial arena with heightened exposure. The Water Code classifies unauthorized diversion of water as a trespass, and assesses $1,000 for each day of trespass plus $2,500 for each acre-foot of water diverted or used in excess of the diverter’s water rights.

The subjects of the Cease and Desist Orders and the draft Complaint have 20 days to request a hearing before the State Water Board. By early August we will know if these proceedings will take place. In the meantime, we expect the State Water Board to continue exercising its enforcement muscle through Cease and Desist Orders and Civil Administrative Complaints.