The State Water Board has the responsibility for regulating drinking water, protecting water rights, and protecting water quality. In recent years, the State Water Board’s rules and regulations have expanded as a result of new legislative mandates while at the same time, complaints of water rights violations have been trending up, increasing the workload for staff. While the Board does have a water quality enforcement policy which was adopted back in 1996, there is no comparable enforcement policy for water rights.
Over the past few weeks, board staff has conducted scoping meetings to solicit input from the public on what should be included in an enforcement policy, such as how should the Board staff prioritize their investigations and enforcement efforts, how to develop appropriate penalties, and if a special section addressing commercial cannabis cultivation is needed. The goal is to develop a transparent consistent flexible enforcement tool that clearly articulates to diverters what their obligations are and what the consequences of non-compliance will be.
Public comments are due by April 15 and will inform a draft policy that staff expects to have ready for public review in the fall of 2019.
It’s important to note that water rights are only managed by the Division of Water Rights in Sacramento; the regional boards do not have jurisdiction over water rights.
California’s water rights system is inherently complicated. It is a blend of two very different types of rights: riparian and appropriative; there are other water rights that exist in California, such as pueblo, prescriptive, adjudicated, and reserved. All of these different water rights have their own rules, regulations, terms, conditions, and varying priorities.
In recent years, the State Water Board’s rules and regulations have expanded as a result of new legislative mandates. In 2010, statement filing requirements changed, resulting in changes to the frequency that annual diversion and use reports had to be submitted. From 2011 to 2016, California suffered from the most severe drought on record, and as a result, in 2014, the emergency drought regulations were adopted. In 2015, all diverters were now required to submit their diversion and use reports annually. In 2016, the measurement regulations went into effect. And recently, the cannabis cultivation policy was adopted by the State Water Board, and more recently amended.
WHY IS THIS POLICY NEEDED?
Staff noted that Water Code 1825 states that it is the intent of the legislature that the state vigorously enforce water rights.
“As we move into the future, the Division is receiving an increased volume of complaints, the demand for water continues to grow, and our regulations continue to expand and change,” explained Skyler Anderson, Senior Environmental Scientist. “In order for the Division to ensure compliance with our regulations, protect the environment, and protect the water rights priority system, we need to develop a process to optimize our enforcement efforts. We feel the best way to do so is development of a water rights enforcement policy with involvement from our stakeholders and the public.”
Water Board staff are envisioning the potential water rights enforcement policy to be broad in scope and generally applicable to all water rights violations. The enforcement policy would serve as a flexible guidance document and could determine future and present decisions as it relates to compliance and enforcement. The policy would not create new requirements for diverters, Mr. Anderson said.
Mr. Anderson presented a list of proposed policy elements that staff feels would provide a strong foundation for a water rights enforcement policy; he noted that these elements are included in the Board’s water quality enforcement policy.
“We know there are a lot of things that could benefit from further guidance,” said Mr. Anderson. “The way we set our priorities, set penalties, and use our enforcement tools is not as transparent as it could be. The intent of developing a water rights enforcement policy is not to create a rigid process; our goal is to create a flexible tool that serves as guidance both internally and externally.”
“The goal of the water rights enforcement policy is to achieve maximum prior right protection and protection of the environment,” he continued. “Enforcement also creates an even playing field, ensuring that those who follow the law are not placed at a competitive or economic disadvantage by those who violate or choose to ignore the law. Establishing a water rights enforcement policy will provide the regulated community with a clear expectation for what happens if they are not following the law.”
The goal of enforcement is compliance which could be achieved by developing an enforcement policy that focuses on maximizing compliance through education and outreach. Compliance assistance is needed to ensure that those that are regulated understand what their responsibilities are and what they can do to stay in compliance. If compliance is not achieved through education and outreach, then more formal enforcement may be required, he said.
Enforcement should deter future violations, it should compel compliance, and enforcement actions should be related to the nature of harm caused by the violation.
HOW TO PRIORITIZE INVESTIGATIONS?
Prioritization is about what complaints are investigated and ensures that enforcement resources are used on things that matter to stakeholders and to the public. Enforcement priorities could be determined by a process for the board to identify statewide, regional, and program specific priorities based on input from the public, stakeholders, staff, and regional boards, Mr. Anderson said.
Since 2010, the Division has conducted more than 5000 investigations. Some of the types of investigations are the result of new legislative mandates and some of the types of investigations have been around for a very long time. The workload created by complaints can be very large, and it can be even larger during times of drought. There are a number of options: prioritized by first in time or high value resource watersheds or Wild and Scenic Rivers, or adjudicated water bodies or impact to public resources? Staff would like feedback on that issue.
HOW TO DETERMINE PENALTIES?
Staff are also looking for input on developing appropriate penalties. “The water code says we need to look at these very specific factors and at the same time, it says we need to consider all relevant circumstances,” said Mr. Anderson. “The challenge we face is how do we combine these considerations consistently into a proposed penalty amount while recognizing that each violation is unique? A method for assigning the appropriate weight to relevant factors in calculating a proposed penalty amount will provide an objective, transparent, repeatable process at setting penalties. Penalties should be fair and consistent, they should eliminate the economic advantage obtained by noncompliance, and they should deter future violations.”