On March 17, 2015, the State Water Resources Control Board (“Board”) adopted requirements that expands upon the Board’s current power to investigate water usage (“New Regulations”).

(1) Background.

In July 2014 the Board adopted Section 879(c) of title 23 of the California Code of Regulations, which allows the Board to order a holder of a riparian or pre-1914 appropriative water right (“Senior Water Right”) to provide information in support of their water right claim when: (1) another water user claims that a Senior Water Right is interfering with her use; or (2) the Board receives information that there has been an unlawful diversion of stored water. The Board exercised this new authority by issuing an expansive order to 445 Senior Water Rights on February 4, 2014.

(2) Impact of the Proposed Regulations.

The New Regulations take Section 879(c) even further. Rather than limiting the Board’s jurisdiction to Senior Water Rights, the Board can now order additional information from any water right holder, diverter or user. The Board is able to apply the additional reporting requirements to a water user who defends a curtailment order by claiming a right to divert through a contract or water transfer that the Board has not specifically approved.

The New Regulations also broaden the Board’s scope by allowing the Board to issue an order for more information when it receives information that there has been actual or threatened waste, unreasonable use, unreasonable method of diversion or unlawful diversions of water by a water user or diverter. Currently, the regulations only apply to Senior Water Rights when the information indicates unlawful diversions of stored water.

The New Regulations add that the Board can order information regarding a water user’s compliance with water transfer laws if a water transfer has not been approved by the Board. The Board can also order “any other information relevant to authenticating or forecasting use and supplies in the current drought year.”

The New Regulations shorten the timeframe to respond to an order to thirty (30) days versus fifty (50) days. If an individual fails to provide the requested information within thirty (30) days, the Board can impose a fine of $500.00 per day until the information is received.

If you have any questions relevant to the New Regulations, please contact Barbara Brenner.