By Miles Krieger and Steve Anderson
In May 2002, the State Water Resources Control Board (State Water Board) readopted emergency regulations authorizing the board to curtail diversions in Sonoma and Mendocino counties to protect drinking water supplies and migrating fish in the Russian River watershed. The State Water Board subsequently provided notice of its proposed rulemaking for the revised emergency regulations, which the board submitted to the Office of Administrative Law on May 18th.
Background
The Russian River begins in Mendocino County and flows south over one hundred miles into Sonoma County before emptying into the Pacific Ocean. Water stored in Lake Mendocino is released to maintain flows in the upper section of the Russian River. Supplemental water from the lake is used for the benefit of municipal, agricultural, and environmental uses.
In April 2021, Governor Gavin Newsom issued a drought state of emergency and recommended modifications to reservoir releases and limitations and curtailments of diversions within the Russian River watershed to redress acute drought impacts and to protect the availability of drinking water. The 2021 proclamation directed the State Water Board to consider adopting:
. . .emergency regulations to curtail water diversions when water is not available at water rights holder’s priority of right or to protect releases of stored water.
Accordingly, the State Water Board adopted emergency regulations on June 15, 2021, which are set to expire on July 12, 2022.
The 2022 Russian River drought emergency regulations seek to renew the State Water Board’s emergency authority related to the 2021 regulations. However, the 2022 regulations make novel amendments to the 2021 regulations.
Emergency Conditions in the Russian River Watershed
In proposing to adopt the 2022 regulations, the State Water Board found that an emergency continues in the Russian River watershed due to the third consecutive year of severe drought conditions. The State Water Board determined that it was unable to address the situation through non-emergency regulations given the ongoing drought emergency. The State Water Board further reasoned that it was immediately necessary to reassert the board’s authority to prevent the unreasonable use of water in the Russian River watershed in light of “severely limited water availability.” According to the regulations, the State Water Board has regulatory jurisdiction over permitted water rights issued after 1914, but also has jurisdiction to regulate the reasonable uses of water regardless of the basis of right, including riparian and pre-1914 water rights.
Curtailment of Water Diversions
The primary objective of the State Water Board’s emergency regulations is to authorize curtailment of water diversions due to decreased natural flows so water will be available for: 1) senior water right users; 2) minimum flow requirements for fish and wildlife; and 3) minimum human health and safety needs. The 2022 emergency regulations apply to the entire Russian River watershed, as opposed to the Lower Russian River watershed as occurred in the 2021 regulations. The regulations authorize the State Water Board to issue curtailment orders to water rights holders requiring the limitation or cessation of water diversion.
New in the 2022 regulations is a “curtailment status list.” Specifically, the State Water Board will publish and regularly update a curtailment status list showing all water rights for which diversions are required to cease or be reduced due either to insufficient flows in the Russian River watershed or to diversions unreasonably interfering with augmented stream flows or releases made in certain Russian River tributaries. Notably, updates to the curtailment status list constitute binding orders from the State Water Board to cease or limit diversions. Such orders are effective the day after they are posted. In other words, water rights holders are responsible for checking the curtailment status list daily in order to avoid potentially violating a curtailment order should their water right or rights be included in the curtailment list the day before.
In updating the curtailment status list, the State Water Board is required to consider the priority date of a water right, monthly water demand projections, water availability projections, and any other pertinent information. To that end, the regulations provide for the use of a Water Rights Allocation Tool, which automates calculations of water availability at certain points along the Russian River via mathematical formulation of sub-watershed supplies; user demands and dates of priority; and maximization of water allocation in accordance with the formulations document for the Water Rights Allocation Tool dated January 2022. The State Water Board would also continue to send curtailment orders to each water right holder, claimant, or agent of record on file with the board.
Riparian rights users are also subject to curtailment orders by the State Water Board if their use of water is deemed unreasonable. Specifically, “uncoordinated diversions” of surface water under riparian claims constitute an unreasonable use of water. The regulations do not specify what constitutes “uncoordinated” diversions. However, diversions pursuant to riparian rights are required by the regulations to be incorporated into the water availability analysis described above. Riparian users who disagree with an assigned water budget based on the water availability analysis and associated curtailment orders have 14 days to inform the State Water Board of their actual planned diversion and use under the riparian claim, and must include information estimating planned diversion quantities by month over the following 12 months, a summary of water uses, and previous water usage data. Riparian users who previously failed to inform the State Water Board of their planned uses, and who also failed to report diversions and use for the 2017 through 2019 period, are treated as having junior-most priority for the duration of the emergency regulations’ effect.
Finally, the emergency regulations allow for voluntary water sharing agreements in lieu of a curtailment order. Specifically, water rights holders in the Russian River watershed may propose a voluntary water sharing agreement that authorizes an exception to curtailment and would thus allow a water rights holder whose water right is listed in the curtailment list to continue diverting water under the terms of the sharing agreement. The State Water Board must approve the agreement, which requires that the board find the agreement will not adversely affect the availability of water for non-signatories in Mendocino and Sonoma counties. Water made available by a signatory to a water sharing agreement is not available to non-signatories to the agreement and is treated as a prohibited unreasonable use of water.
Conclusion and Implications
The State Water Resources Control Board’s Russian River emergency regulations employ new data analytics to determine water availability, maintain a list of water rights subject to curtailment, but allow for voluntary agreements that allow listed water rights holders to continue diverting under the terms of the agreement. Specifically, riparian rights holders might be best positioned to continue diverting under the curtailment orders if they can coordinate water diversions through voluntary agreements. Water rights management in the drought-stricken Russian River watershed appears to be increasingly automated yet offers the prospect of flexibility based on the negotiating acumen of individual water rights holders. The Revised Notice of Proposed Rulemaking is available at: https://www.waterboards.ca.gov/drought/russian_river/docs/2022/russian-river-revised-notice-proposed-rulemaking.pdf
