State Water Resources Control Board Announces One Month Enforcement Grace Period for Annual Filings Due April 1, 2020

The State Water Resources Control Board (Water Board) announced on March 26, 2020, that it does not anticipate bringing enforcement actions against water rights holders who are required to make annual filings by April 1, 2020, provided that required filings are made by May 1, 2020. This de facto reporting extension – an apparent response to the disruptions caused by the COVID-19 pandemic – applies to any water right holders who are required to file an annual report to describe the water diversion and use associated with their appropriative rights, stockpond certificate, or registration.

The Water Board requires various types of water rights holders to report their water diversion and use in annual filings. The reporting deadline for appropriative rights, stockpond certificates, or registrations is April 1 each year, while the deadline for statements of water diversion and use and groundwater recordation is July 1. Annual reports for appropriative rights, stockpond certificates, and registrations must include water use information such as the types of beneficial use, and most reports require disclosure of monthly diversion amounts including diversion to storage and the amount used. Depending on the circumstances, the Water Board has authority to wield a variety of enforcement powers to discharge its oversight obligations, including imposing administrative civil liability, issuing cease and desist orders, and even pursuing water rights revocation.

The Water Board's March 26 announcement made clear that both upcoming deadlines, April 1 and July 1, would remain in effect. However, recognizing that these are "uncertain times", the Board clarified the following regarding enforcement for late filings:

The State Water Board exercises enforcement discretion in pursuing enforcement of its requirements and considers relevant factors in deciding when to pursue enforcement and what remedies are appropriate. All water rights holders are encouraged to file their water use reporting information by the deadline to the full extent possible. In this instance, we do not anticipate enforcing on reports that are due April 1, 2020 if they are filed by May 1, 2020.

The Water Board's announcement has effectively granted a one-month enforcement grace period for filings due by April 1.

It is important for water rights holders with imminent filing obligations to recognize that the Water Board's announcement does not relieve the filer from potential penalties associated with a late filing. The Water Board did not alter the April 1 filing date, and the Board retains discretion to decide whether to pursue enforcement actions. Water right licensees, permitees, and certificate holders should comply with the April 1, 2020, filing date if possible to avoid exposure to potential liability for late filings. Water rights holders who cannot comply with the April 1 filing date should consider proactively explaining their good cause for delay to the Water Board after filing.