California’s water cops on Wednesday approved emergency drought regulations aimed at forcing water users to act swiftly when told to stop diverting water from streams.
The State Water Resources Control Board, after meeting for nearly 12 hours over two days, voted unanimously to approve the new rules package. The emergency regulations mean that for the next nine months, the board can follow a streamlined process to force some water-rights holders to stop diverting from rivers and streams.
The action came after the board was told that only 31 percent of nearly 10,000 water-rights holders statewide have responded to curtailment notices issued over the past six weeks.
Existing regulations require the board to carry out a complicated quasi-judicial hearing process before forcing these water users to comply, proceedings that can take months or even years. The new regulations allow the board to take enforcement action without a hearing. The diverter still can request a hearing after enforcement actions have begun.
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“Since we got a fairly poor showing, we felt we needed to amp up our enforcement capacity and make it a little quicker ... to show that we’re serious,” said board chairwoman Felicia Marcus.
The board members, who are appointed by the governor, agreed to limit the new regulations only to so-called “junior” water rights, or those issued after 1914, when the state began regulating water diversions. Holders of senior water rights, issued before 1914, still will be subject to the more cumbersome existing rules. But under the new regulations, senior water-rights holders could be ordered to promptly provide information about their water use if an allegation arises that they are taking more water than they have a right to.
The point of curtailments is to ensure that state law is followed in regard to water-right priority. In times of drought, junior water-rights holders are required to reduce or halt their diversions to ensure that limited supplies are available to diverters with senior rights. Water rights are ranked even within the “junior” category, with earlier rights having higher-priority access.
The board was empowered to adopt streamlined enforcement measures by emergency drought legislation signed in March by Gov. Jerry Brown.
The new regulations allow the board to impose fines of $500 per day for failure to comply with a curtailment order. Although this is lower than fines available under the conventional enforcement process – which are $1,000 per day – the board can impose these fines quicker to bring about faster compliance. It also does not preclude following the usual enforcement path separately and imposing the steeper fines.
With the new rules in hand, it is likely many diverters who have received a curtailment “notice” will now receive an official “order,” with the potential for fines to pile up fast. The board added language so curtailment orders better explain each diverter’s hierarchy in a particular stream, and the justification for the order based on water supply in that stream.
Marcus said the board opted to limit the new rules to junior rights largely as a way to manage workload. Policing just the junior curtailments will tax the board’s small enforcement staff.
“It’s basically making sure that people only use the water to which they are entitled,” Marcus said. “I think people want to comply with what they’re asked to do. But they want to understand it, and they want it to be fair.”