From Paper to the Real World: Stopping Illegal Water Diversions in California

Elliott Rector, Legal Intern, EDF

On June 29, the California State Assembly Water, Parks, and Wildlife Committee approved SB 565, an encouraging first step towards reforming the illegal use and diversion of water in California. This important bill will next be taken up in the Appropriations Committee, possibly next week.

Looking back to move forward
SB 565 is sponsored by Fran Pavley (D-Agoura Hills) and co-sponsored by Senate President Pro Tem Darrell Steinberg (D-Sacramento) and Assemblyman Jared Huffman (D-San Rafael). This same group of key legislators made California’s water crisis and the Sacramento-San Joaquin Bay-Delta their priority policy agenda in 2009, passing a robust policy reform package in November. But the final policy package did not address the dilemma of illegal water diversions. These legislators, along with conservation organizations like EDF and NRDC, are working to provide the State Water Resources Control Board (Board) with enforcement tools that will go a long way toward reducing illegal water diversions.

The Problem: Stealing water without consequences
All water in California is committed to a specific purpose as authorized by the Board. The Board is also tasked with protecting flows for the environment. Therefore, anyone diverting water to which they are not legally entitled is harming either legal water rights holders or the environment.

The problem is that the State Board doesn’t currently know that much about how much water is being illegally diverted, and the penalties for diversion are quite mild. The Board currently lacks the necessary enforcement authority to deal meaningfully with illegal water diversions due to outdated water rights administration, enforcement, and penalty provisions of the California water code. At a time when the Governor is calling for billions in new water infrastructure, it seems like a commonsense first step would be to get a handle on who is using water in the state and for what purpose, and to ensure that water is not being used illegally or wastefully. “More information about current use and diversions in current law is needed for better and more comprehensive and most importantly fairer use of water among all water users,” said Wade Crowfoot, Environmental Defense Fund West Coast Political Director at the June 29th hearing.

The Solution: From paper requirements into meaningful real world results
Consistent with Governor Schwarzenegger’s Blue Ribbon Delta Vision Task Force, SB 565 addresses the problem of illegal diversions by providing the Board with three necessary enforcement tools to ensure fair and balanced water usage.

If Passed, SB 565 Would:

1. Ensure proper reporting of water use and diversion by requiring monitoring by all water users and diverters while minimizing undue burden.
   • The Board needs to know how much water Californians are currently diverting for lawful use so that they can make informed allocation decisions.
   • The Board may request new technical or monitoring program reports only from large water users or diverters (>200 acre feet per year). 
   • The Board may inspect diversion facilities, but only with the owner’s consent or a properly issued warrant.
   • The Board may authorize monetary penalties for monitoring and reporting violations.
2. Protect legitimate water rights holders by increasing fines for illegal use or diversion of water that reflect the current value of water. The fines for illegal activity established by existing law have not been changed since 1991. Currently, it’s an economically wiser decision to steal water even if you get caught since the value of water illegally diverted is often substantially greater than the fine.  
   • The “market value” penalty is limited to repeat offenders or first time offenders who use or divert extremely large amounts of unauthorized water (>1,000 acre feet on any given day).
3. Establish reporting incentives that encourage all water users and diverters to participate in a system that has clear, meaningful penalties for illegal activities, thus ensuring legal water uses and diversions are respected.

“These are not new or novel requirements,” said Natural Resources Defense Council Senior Attorney Kate Poole. “All this bill does is turn them into meaningful requirements rather than paper requirements that are unenforceable in the real world.” We hope the legislature takes on this critical piece in water policy reform for the State.