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As widely anticipated, on March 17, 2015, the State Water Resources Control Board approved a resolution to impose state-wide mandatory water conservation measures, including restricting the number of days that irrigation of outdoor landscaping is permitted, prohibitions on irrigation runoff and irrigation of landscaping within 48 hours after measurable rainfall, prohibitions on serving drinking water at restaurants unless requested by the customer, and requiring hotels to give guests the option to forgo daily laundering of linens and towels.
But in a less-publicized resolution adopted the same day, the Board also moved to significantly expand its power to investigate the validity of claimed water rights. Calling its existing ability to obtain documentation of water rights and water use too limited, and finding that many recipients of curtailment notices in 2014 simply ignored orders to stop using water, the Board's new regulation broadens the circumstances in which it may require information from water rights holders. Section 879(c) of title 23 of the California Code of Regulations, as proposed, permits the Board to issue an order to any water right holder, water diverter, or water user to substantiate its claimed right to water, based only on the receipt of information indicating that the use or method of diversion may be unreasonable.
Last July, the Board adopted regulations authorizing it to issue orders to senior water rights holders (i.e., those claiming riparian and pre-1914 appropriative water rights), requiring those water users to substantiate their water rights claim in two circumstances—(1) following receipt of a complaint alleging interference with a water right by a senior water right holder, or (2) upon receipt of information indicating an unlawful diversion of stored water. Then, on February 4, 2015, the Board issued orders to 445 different senior rights holders claiming a total of 1,061 rights, giving those parties 30 days to submit their 2014 and anticipated 2015 monthly uses of water, as well as documentation supporting the water rights claimed. See State Water Board Launches Investigation Into Claims of Senior Water Rights.
The Board's new regulation, a re-adoption and expansion of 23 C.C.R. § 879(c), goes further. Under its new provisions, the Board may issue orders to any water rights holder, diverter or user to provide documentation as to an asserted water right and the amounts used, in response to:
In any of these circumstances, the Board may issue an order requiring submission of the following information:
Failure to provide the information requested within 30 days (or any additional time extension granted) may subject the person receiving the order to civil liability of up to $500 per day for each day the violation continues. Moreover, a finding that a diversion is unauthorized could result in liability of up to $1,000 per day plus $2,500 per acre-foot of water unlawfully used.
The proposed emergency regulations must first be submitted to the Office of Administrative Law, which has 10 days to approve or deny the regulations. If approved, the regulations will take effect immediately and remain in effect for 270 days.
Read the full text of the proposed regulation authorizing informational orders, as amended.
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