By Wesley A. Miliband and Kristopher T. Strouse
At its August 3, 2021 Public Meeting, the State Water Resources Control Board (State Water Board) considered whether to adopt emergency regulations that would instate certain reporting requirements and allow for the curtailment of water rights in the Sacramento-San Joaquin Delta Watershed (Delta Watershed). As the public meeting came to an end, the State Water Board ultimately decided to adopt these Emergency Reporting and Curtailment Regulations, passing them on to the Office of Administrative Law who approved the Regulations as of August 19, 2021. With these new Regulations coming into effect, thousands of water users either have been or are expected to be issued curtailment orders to cease water diversions under their curtailed water rights.
Emergency Regulations as Adopted: Curtailment of Diversions due to Drought Emergency
The Emergency Regulations, as adopted, add to Title 23 of the California Code of Regulations, Division 3, Chapter 2, Article 24 §§ 876.1 and 878.2. The Emergency Regulations will also amend 23 CCR § 877.1, 878, 878.1, 879, 879.1, and 879.2.
Beginning with the newly added 23 CCR 876.1, this section applies to water diversions within the Delta watershed and authorizes the Deputy Director to issue curtailment orders, subject to: (a) the several exceptions provided in §§ 878, 878.1, and 878.2, and (b) to the considerations provided in § 876.1(d). This section also provides a process to request a correction to a water right’s priority date or to propose that curtailment may not be appropriate for a specific diverter or stream system. Initial Orders issued pursuant to this section will require reporting under § 879 and will either require curtailment or will instruct right holders regarding procedures for potential future curtailments. Furthermore, § 876.1(g) authorizes temporary suspensions of curtailment orders in the event that water availability increases. Finally, § 876.1(h) provides that by October 1, 2021 the Deputy Director must consider the suspension, extending of suspensions, or reimposition of curtailments, and must continue to do so every “by no more than every 30 days thereafter.”
As noted above, several exceptions to these curtailment orders are laid out in §§ 878, 878.1, and 878.2. First among these exceptions, diversions solely for non-consumptive use may not be required to curtail in response to a curtailment order if their diversion and use of water does not decrease downstream flows and if they submit to the Deputy Director a certification describing the non-consumptive use and evidencing how the use does not decrease downstream flows. Second, under § 878.1, diversions that are necessary for minimum human health and safety standards may not be required to curtail, so long as several conditions are met that vary based upon whether the diversions are less than or greater than 55 gallons per person per day. Lastly, § 878.2 provides an exception for water users under alternative water sharing agreements that achieve the purposes of the curtailment process and that are submitted to and approved by the Deputy Director.
In addition to the requirements imposed by curtailment orders issued pursuant to the Emergency Regulations, reporting requirements are also established, with water rights holders of rights in excess of 1,000 acre-feet annually potentially subject to more stringent and continuous reporting requirements.
Initial Orders in the Delta Watershed
On August 20, 2021, the day after the Emergency Regulations were approved, the State Water Board sent out Initial Orders to diverters in the Delta Watershed. These Initial Orders came with strict reporting requirements for such diverters, demanding a Compliance Certification be submitted by diverters no later than September 3, 2021—a turnaround of only two weeks. Furthermore, larger diverters (i.e. diverters in excess of 5,000 AFA) are subject to enhanced reporting requirements, including monthly reporting for water diversions and use and monthly reporting of projected demand data.
In addition to the reporting requirements detailed in the Initial Orders, the orders also point out that any diverter seeking to utilize an exception as either non-consumptive use or necessary for human health and safety standards must submit a request by September 10, 2021, regardless of whether such water right has been curtailed as of this time.
Conclusion and Implications
The Initial Orders sent out by the State Water Resources Control Board will have major impacts on water users within the Delta Watershed. Thousands of users are expected to curtail diversions for the latter portion of August as well as for the duration of September, with many of these diverters facing the potential for further curtailments into October and beyond. The reporting requirements will certainly have water users’ hands full in effort to maintain compliance. In any event, it seems just as likely that the State Water Board will face legal challenges to these new Emergency Regulations as water users scramble to respond to curtailment orders.
For more information on the Emergency Regulations and curtailments, readers can access the State Water Board’s Sacramento-San Joaquin Delta Watershed Drought & Curtailment Information webpage at:
