Delta Watermaster: State Board Should Ramp Up Enforcement Against Unreasonable Agricultural Water Use And Promote Transfers of Conserved Irrigation Water

The State Water Resources Control Board (State Board) should create a new unit to police the efficiency of agricultural water use and should make it easier for farmers and water districts to transfer conserved irrigation water, according to Delta Watermaster Craig Wilson.

The Delta Watermaster recommendations appear in a new report titled Reasonable Use Doctrine & Agricultural Water Use Efficiency. The report recommends that the State Board create a “Reasonable Water Use Unit” staffed with full-time positions already earmarked for water rights enforcement under the 2009 state water legislation.

“There are proven measures and technologies available now to make agricultural water use more efficient,” the report said. So long as such measures are “economically justifiable, locally cost effective and not harmful to downstream agriculture and other environmental needs,” then persons who fail to employ them “are simply using water unreasonably,” the report said.

The authority to stop unreasonable water use derives from Article X, section 2 of the California Constitution and various provisions of the California Water Code, the report said. Among other things, the state Constitution provides that “the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented . . . .”

The new State Board unit should have the authority to compel more efficient agricultural water use by individual farmers and their water districts, according to the report, which recommends streamlining the procedures for enforcement actions targeting inefficient water use. The State Board also should be able to issue a Cease and Desist Order without first holding a hearing, the report said. To determine whether a given agricultural water use is unreasonable, the State Board should assess whether the enforcement target’s water use is higher than “similar uses in similar locations or circumstances,” according to the report.

The State Board should require irrigation districts to update their “infrastructure and operation so that more efficient water use may take place,” the report said. That includes modifying district water distribution systems to enable farmers to receive irrigation water “on-demand,” which would allow more efficient irrigation practices, the report said. Financial incentives, like grants, could help pay for water system updates, the report said.

Although the 2009 state water legislation establishes a program requiring agricultural water suppliers to develop water management plans, the report cites that program’s limitations, observing that “individual farmers are not required to evaluate and implement more efficient practices.” Individual farmers should look at their agricultural activities to evaluate whether more efficient practices are appropriate, the report said.

Further, agricultural water rights holders who must submit Statements of Diversion and Use1 under Water Code section 5100 et seq. should be asked to submit a checklist of efficiency practices for State Board review, the report said. Efficiency practices would include measures like changing the variety of crops grown, changing the type of irrigation method (sprinkler instead of flood irrigation methods), and using deficit irrigation practices (intentionally reducing irrigation of crops during stress-tolerant growth stages). The checklist would help recognize those agricultural water rights holders who are already employing efficient irrigation practices, the report said.

The report observes that more efficient water use can be encouraged by making transfers of conserved water easier. To that end, the report recommends that the State Board reexamine and ease regulatory burdens on the transfer of conserved irrigation water. Under current regulations and State Board precedent, a potential transferor faces a heavy burden to prove the amount of water available for transfer as a result of carrying out conservation measures. Uncertainties about how to calculate water savings from agricultural conservation measures “should be resolved in favor of promoting transfers,” the report said.

The report proposes that the State Board convene a Reasonable Water Use Summit and/or hearings on the Delta Watermaster’s recommendations. First, however, the State Board is scheduled to receive the Watermaster’s report at its January 19 Board meeting.

The Delta Watermaster was established by the Sacramento San Joaquin Delta Reform Act of 2009. In July 2010, the State Board appointed Craig Wilson as California’s first Delta Watermaster for a four-year term. Wilson was an attorney with the State Board for almost 30 years and served as its Chief Counsel from 2000 to 2005.

The Delta Watermaster’s report is available online at: http://www.waterboards.ca.gov/board_info/agendas/2011/jan/011911_12_reasonableusedoctrine_v010611.pdf.

If you have any questions or concerns, please contact the following from our office, or the attorney with whom you normally consult.

Eric Robinson or Danielle Teeters | 916.321.4500

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1It is worth noting that emergency regulations recently issued by the State Board require holders of water rights permits and licenses to annually file forms that report actual water use by month. Previously, water right permittees and licensees were required to file a form once every three years reporting use “during each year.”