On Friday, June 26, 2015, the State Water Resources Control Board (“State Water Board”) issued a Notice of Unavailability of Water and Immediate Curtailment (“Notice”) for senior water right holders in the Merced River and Upper San Joaquin River watersheds. The Notice requires water right holders to cease diverting immediately and complete a Curtailment Certification Form (“Form”) within 7 days.

(1)  2015 Curtailment Background

In January 2015, and again in April 2015, the State Water Board issued a Notice of Surface Water Shortage and Potential for Curtailment due to dry conditions throughout the State. These notices were based on Governor Brown’s declared state of emergency regarding the ongoing state-wide drought due to drinking water shortages, diminished water for agriculture production, degraded habitat for fish and wildlife, increased wildfire risk and the threat of saltwater contamination to fresh water supplies in the Sacramento-San Joaquin Delta, initially enacted on January 17, 2014 and extended on April 1, 2015, through Executive Order B-29-15. Following the Governor’s Executive Order, on April 23, 2015 and May 1, 2015, the State Water Board issued curtailment notices to all post-1914 appropriative water rights in the Sacramento and San Joaquin River watersheds due to insufficient projected water supplies. Following that, on June 12, 2015, the State Water Board issued a curtailment notice to all pre-1914 San Joaquin watershed diverters with a priority date of 1903 or later.

(2)  New Curtailment Notices to Pre-1914 Appropriative Water Rights

Based on updated water supply projections provided by the Department of Water Resources, the State Water Board notified pre-1914 water right holders within the Merced and Upper San Joaquin River watersheds that, due to ongoing drought conditions, there is insufficient water in the system to service their claims. On June 26, 2015, the State Water Board notified appropriative right holders with a priority date of 1858 or later within the Merced River watershed, and all pre-1914 water right holders within the Upper San Joaquin River watershed of the need to immediately stop diverting. The curtailment will continue until water conditions improve and the State Water Board will notify right holders when it determines water is legally available for diversion.

The only exceptions to curtailment are for: (1) hydroelectric generation by direct diversion if all water diverted is returned to the same stream system; (2) previously collected water stored in a reservoir covered by a pre-1914 claim of right prior to this curtailment notice; or (3) if the water users must comply with directives issued by the Division of Drinking Water (DDW), or local health or drinking water regulations to provide continued water service to meet minimum health and safety standards. However, if water is diverted under a claim of right to meet human health and safety needs, the right holder must still complete the Form identifying health and safety needs, whether there is an applicable DDW, state or local regulation and all attempts at securing alternate water supplies.

(3)  Implications from These Curtailment Notices

Under the Notice, holders of identified pre-1914 water right claims are required to complete the online Form confirming cessation of diversion by Friday, July 3, 2015. Completion of the Form is mandatory to avoid administrative penalties, cease and desist orders, or prosecution in court. If the State Water Board finds that a person or entity has diverted or used water unlawfully, the State Water Board may assess penalties of $1,000 per day of violation and $2,500 for each acre-foot diverted or used in excess of water available to the water right priority. (See Water Code, §§ 1052, 1055.) Additionally, if the State Water Board issues a cease and desist order against an unauthorized diversion, violation of any such order can result in a fine of $10,000 per day. (See Water Code, §§ 1831, 1845.)

For questions regarding the curtailments and their implications, please contact Barbara A. Brenner at Churchwell White LLP: (916) 468-0625 or barbara@whitebrennerllp.com.