Rights vs. Reason in Severe Drought Conditions

August, 2014






Responding to one of the most severe and persistent droughts in the history of California, state agencies are now moving to shut down water diversions that harm fisheries and wildlife, using a mixture of unusual and unprecedented measures.

The State Water Board is issuing “curtailment notices” to registered water rights holders in many areas. Both the State Water Board and the Department of Fish and Wildlife have been given new staff to go after unregistered diversions associated with marijuana cultivation. Both agencies now have new powers to issue steep fines to punish scofflaws and polluters.  The fundamental authority and responsibility of the state to regulate water diversions, especially to protect fisheries, has also been reaffirmed in a ringing ruling from the state Court of Appeals.

For the first time in a generation, the State Water Resources Control Board (SWRCB, or just “the State Water Board”) has determined that water supplies in parts of the Sacramento, most of the upper Russian River, and most of the Eel River watershed are “insufficient to meet the needs of senior water rights holders,” and ordered everyone in those areas with post-1914 water rights to immediately stop diverting.

There are narrow exceptions for hydroelectric diversions that return water to the same stream and diversions that are the sole source of water for human health and safety, but even in those cases, diverters must contact the SWRCB to avoid potential legal sanctions. The State Board may fine illegal diverters up to $1000 per day of violation; if it issues a Cease and Desist Order, failure to follow its instructions could yield fines of up to $10,000 per day.

While these formal notices apply only to people who have registered their water diversions and rights, the logic they express has broad implications for all water users, particularly for tributaries like the South Fork of the Eel—which apparently was not subject to a curtailment order because so few water rights are recorded in the South Fork. However, the South Fork is at least as thickly settled, and hosts even more marijuana growing operations of every dimension, than the Eel’s other tributaries.

Whether the thousands of actual diversions in the South Fork are registered or not, the legal right of people to use surface water depends fundamentally on whether such use is reasonable under the circumstances. As the California Court of Appeals has just reaffirmed, the question whether a given use is reasonable is for the State Water Board to decide (more on this below).

The curtailment notices issued to date make it clear that any diversion from surface waters this summer would be unreasonable, and is thus inherently illegal, whether properly reported and registered or not.  Because the drought is so severe and demands so far outstrip supply, many tributary streams will dry up altogether. The greatest challenge is how to limit the already substantial harm to fisheries, which have taken the first and by far the largest reductions of any “users.”

A recent decision by the California Court of Appeals, Light v SWRCB, upheld the State Water Board’s regulation of wine grape growers’ diversions from the Russian River watershed to spray grape buds to protect them from early spring frosts. The decision is a powerful affirmation of the water board’s authority to regulate water diversions to maintain water quality, particularly to protect stream flows for fish and wildlife. Water rights, particularly riparian rights, are usufructory: they are rights to use water, not to own it, subject themselves to other rights. As the Light court states clearly, there can be no property right in an unreasonable use of water.

The restatement of state water law is useful, but also significant. The ruling extinguishes theories advanced by the Farm Bureau and Pacific Legal Foundation that would treat water rights as a species of absolute property right, and not incidentally define as an unconstitutional taking of property any attempt to regulate water diversions to protect public trust values. If upheld, such a doctrine would give senior water rights holders, which is to say Big Ag, even greater leverage over California water policy than they already hold. Experts estimate there could be as many as five gallons of ‘paper water’ claimed across California for every gallon of water actually available. Wildlife agencies and the public would be left to pay exorbitant ransoms for the return of our water to its stream. 

Meanwhile, on the North Coast, the SWB and DFW have turned to the growing problem of unreported water diversions associated with large-scale marijuana cultivation, with a new mandate from the Assembly and new tools to persuade those who would prefer to ignore water laws.

The most important of these tools is DFW’s announcement that, for the duration of the present drought emergency, people who self-certify that they meet the basic conditions for installing water storage tanks can get the required five-year permit without the normal inspections. Dana Stolzman of the Salmonid Restoration Federation, who helped convince the agencies to approve the program, put it well: “There is no better time to register your water storage than now.”

But the agencies’ new tools are not carrots alone. As noted above, the SWRCB now has the power to fine diverters who ignore curtailment orders. Where it finds diversions associated with cultivation of controlled substances, DFW now has the power to fine directly as well. The new law distinguishes between trespass grows and those conducted on private land with the owner’s knowledge, but the potential $8,000 per day fine for illegal diversions on private land is not much lower than the $10,000 per day potential fine in trespass cases. In both circumstances, the fines for serious pollution are more than twice that for diversions alone. Communities that, until now, have charted their own course on water use are going to need to report and coordinate their water use.