By Jeanne Zolezzi
If you divert and use water from a surface water source, California law requires you to report your diversion and use to the State Water Resources Control Board, Division of Water Rights (SWRCB or State Board). While this has historically been a requirement for most water rights, it was seldom complied with, as there was no penalty for noncompliance. That all changed in 2015 with the passage of Senate Bill (SB) 88, which required that all water right holders who have previously diverted or intend to divert more than ten acre-feet per year (riparian and pre-1914 claims included), or are authorized to divert more than ten acre-feet per year under a permit, license, or registration, measure and report the water they divert. Compliance with these requirements is now a condition of every registration, permit, or license, and the new law imposes civil fines in an amount not to exceed $500 per violation, per day.
The SWRCB argues that having a Statement on file is beneficial for several reasons.
The information collected from the Statements helps the State Board to protect the rights of existing and known diverters, and to evaluate whether there is a reasonable likelihood that water is available for appropriation for new applications.
If the State Board has a record of an active Statement with your contact information, the law requires the State Board to notify you about applications to appropriate water that might affect your supply.
Water use reported on Statements and in reports required under the appropriation process will also help the SWRCB to ensure the proper allocation of the state’s water resources.
If the water user meets the following three criteria: 1) diversions and filings are in compliance with the Water Code; 2) diversions occur under a valid water right; and 3) Statements includes accurate monthly diversion amounts, then Statements create official documentation of compliance with water right laws. (See:
https://www.waterboards.ca.gov/waterrights/water_issues/programs/diversion_use/)
Some of this is actually true; however, reporting water use also provides public information about your water right that can be used against you in the future.
Annual Reporting Requirements
Water use reports must be filed on an annual basis, and must document diversions made during the prior calendar year. Water use reports for permits, licenses, registrations and certificates must be filed annually before April 1, while Statements of Water Diversion and Use must be filed annually before July 1.
Monthly Reporting Requirements
During the 2011-2015 drought, the SWRCB also adopted emergency regulations that required California’s largest water suppliers—collectively representing the state’s 400 largest water suppliers that serve approximately 90 percent of the state’s population—to track and report monthly water usage. In May 2018, the Governor signed into law water efficiency legislation that authorized the State Board to issue permanent mandatory monthly water use requirements on a non-emergency basis. In dry years the State Board may require monthly or more frequent reporting from all water users.
Forfeiture Concerns
Aside from avoiding fines, the best reason to file annual reports is to document your water use. The Water Code provides that if a water right holder fails to beneficially use all or a portion of a water right for a period of five years, “that unused water may revert to the public and shall, if reverted, be regarded as unappropriated public water.” Water Code § 1241. Under the Water Code, forfeiture of a water right and the reversion of that water to the public is not automatic—the SWRCB has the discretion to find that the holder of a water right has valid justification for its nonuse of water; therefore, the State Board may choose not to revoke the right. As stated in Order WR 81-17:
A right to appropriate water obtained from this board or its predecessor does not expire merely from the passage of the prescribed time. A permit or license remains in effect until revoked in the manner prescribed by the Water Code.
Historically however, the SWRCB has stated that Water Code § 1241 applies only to an appropriative right acquired after December 19, 1914. The application of forfeiture to pre-1914 water rights is unsettled. The State Board has opined that the five-year period applicable to forfeiture of pre-1914 rights occurs, by operation of law, stating in Order 2002-10:
Based on the plain language of Water Code section 1240 and former Civil Code section 1411, interpreted in Smith v. Hawkins, forfeiture occurs by operation of law. . . . Accordingly, a court can confirm whether forfeiture has occurred, but a court does not effectuate forfeiture.
The SWRCB’s historical opinion, therefore, is that forfeiture of pre-1914 rights occurs automatically upon non-use, while post-1914 rights continue to be valid until the State Board actually determines there has been a forfeiture. In several Orders the Board has confirmed that forfeiture of a post-1914 water right pursuant to Water Code § 1241 is discretionary with the State Board.
Two recent appellate court opinions, however, have held that in order to establish forfeiture of a pre-1914 right the challenger must prove that the water user failed to use some portion of its water entitlement over the five-year period immediately prior to the plaintiff’s challenge. In Millview County Water District v. State Water Resources Control Board, 229 Cal.App.4th 879 (2014), the Court of Appeal found that what is required for forfeiture is not merely nonuse by the rights holder but also “the presence of a competing claim” by a rival diverter who is prepared to use or is using the water.
While the law governing forfeiture is far from certain, continued reporting of water use provides a water user with a defense to forfeiture.
Defenses to Forfeiture Requiring Documentation
There are also several exceptions to forfeiture for non-use that depend upon accurate water right reporting.
Water Code Section 1011
Water Code § 1010(a) provides that a right to the use of water will not be lost due to the cessation in use of water under an existing right as the result of water conservation efforts. However, Section 1010(a) also provides:
The board may require that any user of water who seeks the benefit of this section file periodic reports describing the extent and amount of the reduction in water use due to water conservation efforts. To the maximum extent possible, the reports shall be made a part of other reports required by the board relating to the use of water. Failure to file the reports shall deprive the user of water of the benefits of this section.
Since 1980 the Reports of Licensee forms have included the following specific questions related to Water Code section 1011:
Describe any water conservation efforts you may have started:
If credit toward beneficial use of water under this license for water not used due to a conservation effort is claimed under Water Code Section 1011, please show the amount of water conserved (acre feet or mg):
The 2020 statement of water diversion and use form has added questions regarding conservation efforts. For example, the 2020 form states that if you want to credit the amount of conserved water towards the water use authorized under a water right, you have to report monthly conservation amounts in acre-feet. Additionally, the 2020 form now asks for a description of the baseline water use and time period that provides the basis for how amounts conserved were determined, the methodology and associated calculations used, and lastly, whether the conserved water was applied to another beneficial use.
In order to take advantage of the exemption to forfeiture, the water use must properly document its use of reclaimed water. In Order 99-12 the State Board discussed these reporting requirements with regarding to a forfeiture challenge against Natomas Central Mutual Water Company:
DWR and the State Water Contractors argued that Natomas failed to comply with the reporting requirements that are contained in section 1011. The Report of Licensee forms originally submitted by Natomas did not report its conservation. Natomas later amended its Report of Licensee forms to reflect information concerning its conservation efforts. The SWRCB finds that, under the circumstances of this case, the reporting requirement has been satisfied by the amended reports and the substantial documentation in the record confirming that Natomas reduced its diversions by approximately 17,200 ac-ft due to deliberate conservation efforts. At p. 6.
The SWRCB noted the importance of accurate reporting:
It also merits note that Natomas’s failure to report conservation efforts in a timely manner called into question the credibility of its claim to have conserved water. Late reporting raises the question whether the nonuse of water was in fact due to conservation efforts, or if the water user is attempting to characterize nonuse that occurred for some other reason as water conservation in order to obtain the protections of section 1011. Conversely, reporting water conservation in a timely manner, while insufficient in itself to prove water conservation, would tend to support a claim that the nonuse of water was the result of water conservation efforts. For this reason, it is in every water user’s best interest to report water conservation efforts in a timely manner. In this case, however, Natomas has overcome the credibility problem posed by its failure to timely report its conservation efforts by submitting convincing evidence in a public hearing that it has in fact conserved water due to water conservation efforts. Id. at pp. 6-7.
If a water user has not properly documented its use of reclaimed water, it will have a heavy burden to overcome its failure to properly complete the Report of Licensee forms. However, a water user should put this information together and 1) file amended forms, and 2) make sure that all reports filed in the future include information required by this section.
Water Code Section 1010
Water Code § 1010(a) provides that a right to the use of water will not be lost due to the cessation in use of water under an existing right as the result of the use of reclaimed or polluted water. Again, however, § 1010(a) also provides:
. . .the board may require any user of water who seeks the benefit of this section to file periodic reports describing the extent and amount of the use of recycled. . .water.
Since 1980 the Reports of Licensee forms have included the following specific questions related to Water Code § 1010:
27. Are you now or have you been using reclaimed water from a wastewater treatment facility or water polluted by waste to a degree which unreasonably affects such water for other beneficial sues? YES [ ] NO [ ]
28. Are you now or have you been reclaiming or reusing any of the water appropriated under this right? YES [ ] NO [ ]
29. What is present availability or current potential for using reclaimed water from a wastewater treatment plant or polluted water in place of the appropriated water to satisfy all or part of your water needs?
The language in Order WR 99-012 applies equally to meeting the requirements of § 1010, and the importance of: 1) documenting water conserved and 2) filing that information with the State Board on the reports of licensee. Without completion of these sections, a water user will have a heavy burden to overcome its failure to properly complete the Report of Licensee forms. Again, a water user should put this information together and: 1) file amended forms, and 2) make sure that all Reports of Licensee filed in the future include information required by this section.
Delta Reporting
Water use reporting, and measurement, in the Sacramento-San Joaquin Delta is inherently problematic: much of the water that is diverted is drained back into Delta waterways, and measuring both diversions and drainage can be costly. Some landowners and managers in the Sacramento-San Joaquin Delta have significant technologic and hydrologic barriers to the application of conventional measuring devices, data collection equipment, and telemetry specified in SB-88. To address these issues, in the fall of 2016, the State Board Office of the Delta Watermaster initiated sponsorship of the Delta Measurement Experimentation Consortium to develop a path toward the implementation of SB 88. The Freshwater Trust has developed a Remote Sensing-Based Measurement Method that would fulfill reporting requirements through the development and validation of a new measurement method for determining water diversion in the Delta. This method employs participant-supplied crop, irrigation, and management data; local weather data; and remotely-sensed spatial data, and applies multiple analyses for the calculation of water diversion for each program participant.
Duplicative Reporting
There is a serious problem with duplicative reporting, described by the Delta Watermaster as follows:
Because most pre-1914 claims have also never been adjudicated, many diverters claim that parcels patented before December 19, 1914 and continuously irrigated since then have “overlapping” pre-1914 water rights and riparian water rights. Because annual diversion and use under riparian and pre-1914 claims are both reported in the same “Supplemental Statement” form, there is no double counting of this water. The issue of double counting the diversion and use of the same water—often from the same points of diversion (PODs), for the same use, on the same POUs—arises because the same water is reported both in Reports of Licensee and in one or more Supplemental Statements. (Consensus Strategy for Avoiding Duplicative Reporting of Water Diversion and Use in the Delta February 1, 2021)
While some water users with overlapping rights do not indicate that fact on their reports, many water right holders do, thus putting the State Board on notice of the duplication. The law provides that an existing valid riparian or appropriative right will be neither strengthened nor impaired by a permit to appropriate water issued to the owner of such right. Barr v. Branstetter, 42 Cal.App. 725, 184 (1919). The SWRCB suggests that an application to appropriate water may be filed by such owner, however, in the following instances: 1) to initiate a right to additional unused water where water is available for further appropriation in excess of that covered by the existing right; and 2) to establish a new right to water already in use by applicant where the validity of the existing right has not been adjudicated or is in doubt.
California Code of Regulations, Title 23 § 731, requires that an applicant for a permit list all claims to existing rights for the use of all or part of the water sought by the application. A permit, if issued, will limit the water to be appropriated so that existing rights, combined with the permit will not yield a right to use an unreasonable quantity of water. In 1985 the State Board made some observations about the interrelationship between pre and post-1914 water rights:
To prevent the establishment of water rights in excess of available water and in excess of the reasonable needs of the user, diverted water is credited to the senior right to the limit of that right. See Water Code §1201; Cal.Const. Art. X, Section 2. Only diversion in excess of the senior right can be credited to the junior right. Order 85-4 at p. 5.
Therefore, the fact that a water right holder files an application for a permit with the State Board does not itself have an adverse effect on its prior rights. State Board Standard Permit Term 21B is to be used:
. . .[i]f applicant claims an existing right (e.g., riparian, pre-1914, or prescriptive) for the same place of use but the right has not been adjudicated or otherwise finally determined.
The term states in relevant part:
During the season specified in this permit, the total quantity and rate of water diverted and used under this permit and under permittee’s claimed existing right for the place of use specified in the permit shall not exceed the quantity and rate of diversion and use specified in this permit. If the permittee’s claimed existing right is quantified at some later date as a result of an adjudication or other legally binding proceeding, the quantity and rate of diversion and use allowed under this permit shall be the net of the face value of the permit less the amounts of water available under the existing right.
Therefore, the SWRCB should be able to identify overlapping rights, determine which right is senior, and then follow its own rules to determine total water use. However, the State Board is apparently not able to utilize that approach, and instead has developed the following preferred approach to address duplicative reporting in the Delta:
1. Water users in the Delta agree to voluntarily report water diversion and use under the most senior claim before reporting diversion under any available more junior right (usually a license).
2. If all water diversions for use within a place of use can be accommodated within the senior claim (usually a riparian or pre-1914 claim), then licensees will report a nominal ‘1’ acre-foot diverted for the junior licensed right covering the same place and purpose of use.
3. Water users individually, voluntarily and without waiving any rights, agree to adopt this method for Reports of Licensee due on or before April 1, 2021 and for Supplemental Statements of Diversion and Use due on or before July 1, 2021. Reporting under this method will require coordination between license holders and constituent senior water right claimants.
4. Following submission of reports of water diversion and use for calendar year 2020, this consensus approach to avoiding duplicative reporting will be reevaluated based on experience.
If this method of reporting proves beneficial in addressing the problem of duplicative reporting, the Delta water user community, in association with the Office of the Delta Watermaster and the Division of Water Rights, may seek State Water Resources Control Board action to assure that reporting under this method over multiple years will not be construed as evidence of abandonment or forfeiture of licensed rights.
There are problems with this proposed solution. First, it is inherently risky for a water right user to not report water users under a right, or to report a nominal “1” acre foot of diversion. For the reasons discussed above, forfeiture of water rights is a real issue. While this can be accommodated for a one-year trial period, it will not be valid as a long-term solution to the duplicative reporting problem because water users will not risk forfeiture of a water right simply to make the State Board’s job easier. There has been discussion of the State Board adopting an order stating that it will not pursue forfeiture against a water right holder that uses this approach to prevent duplicative reporting; however, if this is not done property, and quickly, the SWRCB’s preferred method will not be voluntarily followed by water users. Second, applying this proposed solution to duplicative reporting only in the Delta does not solve the instances of this same issue throughout the state.
Water Reporting and Curtailments
The major shortcoming of the SWRCB’s water right curtailments in 2015 was that they were based upon inaccurate data and assumption about water availability and water use. Improved water reporting was intended to remedy that shortcoming, but there is no evidence that has occurred. The State Board recently issued its Water Rights Drought Effort Review, in which it reported on a series of interviews with water users and managers to gather input on actions during the last drought. Some key points in the WARDER report reveal that despite the State Board’s efforts to gather more data, not much has improved regarding real time water user and forecasting. Some take-aways from the report:
Participants consistently indicated the need to improve the data systems used to collect, manage, and share water right and reporting data. Technology should be leveraged to simplify, clarify, and improve the quality of electronic data submissions. Participants unanimously recommend the Division collaborate with stakeholders to develop transparent statewide methods to estimate and display water supply conditions, define environmental flow needs, and estimate water availability in near real-time.
The Division generally does not verify the validity of riparian and pre-1914 appropriative water right claims (or accuracy of claimed quantities, among other details). As a result, the volume of water that may be diverted pursuant to these most senior claims can be highly uncertain. This uncertainty can make estimating water availability and implementing the priority system challenging, particularly in watersheds where diversions made pursuant to riparian and pre-1914 claims represent a large portion of demand.
There are significant challenges with the Division’s data management. Most of the state’s water right records still only exist in paper format and can only be accessed by retrieving the file from storage at the State Water Board’s headquarters in Sacramento, and as a result staff and the public cannot easily access water right files or information. In addition, RMS and eWRIMS do not have features found in many modern data management tools that would prevent submittal of clearly erroneous or poor-quality data.
The Division relies on annual diversion and use data reported by water right holders to develop estimates of water demand. These reports include the volume and rate of water diverted each month, and additional information may be required based on the type of right, permit conditions, or beneficial use of water. Reporting and interpreting these data can be challenging because right-holders may divert water from a single location for multiple types of rights or sources and a single water right may use multiple points of diversion.
Conclusion and Implications
The practice and procedure of water use reporting is far from perfect. The State Water Resources Control Board has requested annual, and in some cases monthly, data to be reported, yet it does not have the staff to make meaningful use of this data. The legal process for determining water rights is uncertain, and water right holders should take all action necessary to preserve their rights, including duplicative reporting. Nevertheless, reporting water use to the State Board is a requirement of law and a condition of all water use. Water users should take advantage of that requirement to document their water use, including protecting against forfeiture by accurate reporting use of reclaimed water and conservation efforts.
Jeanne M. Zolezzi is a Partner at the law firm of Herum\Crabtree\Suntag. Jeanne is a recognized expert in California Water Rights. This expertise is acknowledged by her leadership role in the American Bar Association and Association of California Water Agencies. Her practice includes counseling, administrative matters and water rights litigation. For nearly 30 years she has represented public agency and private clients in the acquisition and confirmation of water rights. She handles state and federal litigation against the State Water Resources Control Board and the U.S. Bureau of Reclamation.
Jeanne has appeared as amicus curie before the Nevada Supreme Court, arguing that the public trust doctrine should be affirmatively applied to Nevada water rights adjudication matters and has represented parties in water right adjudications, both surface water and groundwater, in both northern and southern California.
