Media call: State Water Board officials discuss recent enforcement actions

Earlier today, State Water Board officials held a media call to discuss the recent water right enforcement actions, and to provide media the opportunity to ask questions.

On the media call today, is Andrew Tauriainen, the attorney prosecuting these matters on behalf of the Division of Water Rights; John O’Hagan, Assistant Deputy Director for the Division of Water Rights; and Kathy Mrowka, Enforcement Chief for the Division of Water Rights.

Here’s what they had to say.

George Kostyrko, Director of Public Affairs for the State Water Board, opened the media call by reminding of the media call on May 22 discussing the riparian rights holders’ voluntary proposal of 25% reduction. “At that time, media asked questions about how the Division of Water Rights follows up on reports of allegations of priority of right abuses, and what our enforcement approach would be. We told you at that time that our inquiry and investigative process was confidential, but if we found that allegations had some merit, and enforcement actions would follow, which would then be public, which in this case, the complaints that are on our website as well as the press release are the public piece of that. These are the first such enforcement actions for 2015 and have moved from an inquiry to an investigation and then to a public enforcement action. Expect more enforcement actions in the coming weeks and months.”

He then turned it over the Andrew Tauriainen.

ANDREW TAURIAINEN, Prosecuting Attorney for the State Water Board’s Division of Water Rights

First I want to share some background on the State Water Board’s water right enforcement authority and process, then I’ll talk about the recent drought activities and investigation, and finally I’ll discuss the recent enforcement cases, including the one issued this morning.

Section 1052 of the California water code provides that the diversion of water when no water is available pursuant to a diverter’s water right is an unauthorized diversion and a trespass. The State Water Board’s Division of Water Rights has a number of tools under the water code to address unauthorized diversions. The Division can issue a draft cease and desist order when there is an ongoing or threatened unauthorized diversion. Cease and desist orders are a type of administrative injunction that direct parties to stop or to prevent unauthorized diversion. The Division can also issue administrative civil liability complaints to address past unauthorized diversions. Administrative civil liabilities are monetary penalties for past unauthorized diversions.

In 2014, the legislature approved and the Governor signed an enhanced penalty structure for unauthorized diversions during drought emergencies. Unauthorized diversions during drought emergencies are subject to penalties of up to $1000 per day, and $2500 per acre-foot of water diverted without right.

Parties named to draft cease and desist orders or to administrative civil liability complaints may request a hearing before the State Water Board, provided that they make the hearing request in writing within 20 days of receiving the draft order or complaint. If the party does not request a hearing, the division will issue the final order directly. If the named parties do request a hearing, then the Division of Water Rights hearing team will set a hearing schedule before the board.

I want to make it clear that any enforcement order, whether a draft cease and desist order or an administrative civil liability order, would become final only after notice and an opportunity for hearing by the defendant. This is the standard process that the Division of Water Rights has followed throughout its history.

Due to the acute nature of this drought and the unavailability of water, particularly this year, this process has attracted appropriate attention.

Earlier this year, water rights holders were notified that due to conditions stemming from the drought, and projections on water availability in key watersheds, notifications would be issued that would water would soon be unavailable for certain classes of water right holders. These initial notices were sent in January and again in April. At that time, water right holders were informed that water was unlikely to be available and to seek out alternative sources if an uninterrupted supply of water was needed.

In April, May, and June of this year, the Division of Water Rights began to notice water right holders in key watersheds such as the Sacramento, San Joaquin, and the Delta that water was unavailable for certain priorities of rights. So far this year, more than 9300 junior and senior water right holders have been told that water is unavailable under their priority of right. In these notices, water right holders were reminded that diversion is always subject to water availability limitations and diversions under specific affected water rights may be subject to enforcement, should the State Water Board find such diversions are or were unauthorized.

Since that time, the State Water Board has continued its drought year inspections to determine whether diverters are using water to which they are not entitled. So far, the Division has conducted approximately 250 inspections in 2015. A number of parties who received the notices from April, May, and June have filed lawsuits against the board, challenging those notices. Byron Bethany Irrigation District filed a lawsuit challenging the June 12 notice that was issued to pre-1914 water right holders. I can’t speak to the specifics of each of the individual cases, but I can generalize that in these cases, the plaintiffs have all generally asked the board to not enforce the water right notices that were issued in April, May, and June, but instead to use the traditional water right enforcement process, which is what I described to you at the top of my statement.

Recently the parties to one of the lawsuits, not Byron Bethany, sought and obtained a temporary restraining order prohibiting the State Water Board from enforcing the April, May, and June notices. However, in issuing the temporary restraining order, the judge specifically stated that the Board remains free to enforce against violations of the water code, including for unauthorized diversions. On July 15, last week, the State Water Board issued a clarification to those earlier notices, rescinding the portions of those notices that the court found to be objectionable. So in effect, the April, May, and June notices simply put the recipients on notice that the Division of Water Rights has done the math and has concluded there is no water available to serve the various water right categories addressed in each notice. The notices themselves are not enforceable orders, but parties who divert water knowing that no water is available for them remain subject to enforcement for unauthorized diversion.

Later last week, the Division of Water Rights issued two draft cease and desist orders, one to the West Side irrigation District, located in the Delta, and one to a riparian water right holder and property owner in Trinity County who was alleged to be illegally obtaining and hauling water from a stream for bulk water sales.

This morning the division of Water Rights notified Byron Bethany Irrigation District that the Division is issuing an administrative civil liability complaint, alleging that Byron Bethany diverted water after June 12, when it knew that water was not available to serve its priority of right. The Division began investigating Byron Bethany Irrigation District shortly after the June 12 notice, and found evidence that Byron Bethany continued to divert water, despite knowing that no water was available under its priority of water right. The Byron Bethany administrative civil liability complaint is the first to be issued seeking penalties under the new enhanced penalty structure adopted last year. The complaint proposes a penalty of just over $1.5 million dollars for the alleged unauthorized diversion.

It’s highly likely that additional enforcement actions relating to violations of priority of right and unauthorized diversion will follow in the weeks and months ahead. The Division of Water Rights expects that the recipients of all these enforcement actions will request hearings before the board. The State Board’s hearing unit will schedule those hearings and set each for schedule at a later date.

Question and answers (highlights)

Question: Do you feel that the water board currently has enough authority to do what it needs to do to enforce all of these actions and drought measures, or do you feel like you need more, and if so, what would it be?

Andrew Tauriainen: “In terms of does the State Board have enough authority, the water code provides significant authority to enforce against unauthorized diversion. The legislature and the Governor provided some additional tools or additional penalties for drought last year, which has been very helpful, it allows for a bigger threat for these monetary penalties for unauthorized diversion. I am a prosecutor, I can’t necessarily speak to bigger policy questions about what other tools we might need or be able to use, but I can say that given the resources that we have, and the legislature has provided some additional resources to us this year, we’re doing all the investigations we can and we’ll bring about all the enforcement actions that we can.”

Question: Is the enforcement action against Byron Bethany Irrigation District related to water being diverted to Mountain House? And why does the action end on June 25 – did they stop diverting?

Andrew Tauriainen: “We don’t have any evidence at this time about how much water Byron Bethany may have been diverting for Mountain House during the period of June 12 through the 25^th. The reason we include June 13 through the 25 is that those are the days for which we have evidence so far that they were diverting. It appeared based on the amount of their diversion that they were diverting for their normal irrigation purposes and not simply to deliver water to Mountain House. I expect this to be an issue that comes up in the hearing on this civil liability complaint.”

Question: How do choose who to inspect? What goes into that thinking?

Kathy Mrowka: “We have a programmatically decided we are going to do inspections. We have a list of questions we ask ourselves for all the parties that we’re going to inspect – what is the size of their diversion, is it their current diversion season, questions like that that we look at. We’re scheduling the inspections; we are trying to schedule 1000 inspections for this particular diversion season, so quite a large number of the diverters will be inspected this year. Last year we inspected 950 diverters, so we have a very active program. What you’ve seen here in this action came about as a result of a lot of research of the facts and information that we were able to gather.”

Question: Why were the penalties for Byron Bethany Irrigation District reduced and not the maximum possible?

Andrew Tauriainen: “The statutory maximum penalty in a case like this would be fact allegations, is just about $5 million. The water code also requires consideration of all appropriate circumstances in both proposing and adopting civil liability penalties. In the complaint, we describe the circumstances that the prosecution feels are appropriate and why the $1.5 million is an appropriate penalty. This is a process that we do for all administrative civil liability complaints, not just these drought related ones, and although cases are considered on a case by case basis, the process here that we’ve done with this complaint is largely in line with others that we’ve done in the past. I do want to make it clear though that if this case goes to hearing before the State Board, the State Board has discretion to issue a penalty of any size it sees fit, or no penalty, up to and including the statutory maximum. So this is the first case of this kind that will likely go to the board. Certainly the first case under the new enhanced penalty structure, and I do expect the board to take a very close look at all the circumstances surrounding this diversion and others that may come before it when it decides what size penalty to come up with. I wouldn’t be surprised if the Board came up with a penalty much higher than what is proposed here.”

Question: What kind of enforcement did you do last year? Did you have any enforcement actions based on last year’s letter?

Andrew Tauriainen: “A large category of the folks that received those letters last year claimed they had senior rights that weren’t curtailed, and that, given the nature of the way water rights records are kept and the fact that a lot of these senior rights are really, really old and aren’t necessarily on record with the State Water Board, because we only really have detailed records about the post 1914 water rights, it requires a lot of additional investigation to develop those cases. There are, I’m sure, several cases of folks who were diverting when they shouldn’t, and there were many who stopped diverting because they didn’t have water available to them. Our resources are somewhat limited here and we’re taking the cases as we can get them and as we can develop them, and there’s a lot that goes into working out each of these cases and setting the priorities.”

John O’Hagan: “I want to point out that last year, the notices of unavailability of water went out to post 1914 water rights only, and most of those water right holders are familiar with our process and the junior nature of their rights, and our enforcement resources for that are out in the field act as a deterrent to unauthorized diversions so that is one of the purposes of having resources out in the field on a regular basis is to make a showing of field presence so that the diverters know that we are watching. … ”

Question: In the Byron Bethany case, will the Board have to prove that water was unavailable?

Andrew Tauriainen: “Any of these enforcement actions that we issue, any of the fact allegations that are stated in them are allegations that the prosecution has to prove and the Board will have to consider and make findings on. In the case of everything we did last week and this week, specifically includes the question of whether or not water is available at a specific diverter’s right. … The Division of Water Rights has done the math and determined the water is not available. In order to issue an enforcement order, whether it’s a cease and desist order or administrative civil liability order, the Board will have to make specific findings regarding water availability and we the prosecutors have to prove that up in these cases.”

Question: Are these three actions a result of complaints filed by third parties?

Andrew Tauriainen: “We can take enforcement action based on information that we get from a number of sources including third party complaints or complaints from the public, or as happened in this case, from our own inspections and our own investigations. I’m not sure about the Trinity County case because I’m not the prosecutor on that case, but the West Side and the Byron Bethany cases are both the result of inspections from Board staff.”

Question: Last week you issued a cease and desist order against West Side and today you’re proposing a penalty as part of the administrative complaint against Bethany. How do you decide whether to issue a cease and desist order to go right ahead and propose that fine?

Andrew Tauriainen: “The big distinction between those two processes are an administrative civil liability is a penalty for a past unauthorized action, and the complaint we issued this morning to Byron Bethany, based on what we know at the time of the complaint, Byron Bethany stopped their unauthorized diversions, so all of their actions are in the past. Now a draft cease and desist order goes out if there is either actual ongoing unauthorized diversion, or threatened unauthorized diversion – now threatened unauthorized diversion can be shown in a variety of ways. But in this kind of circumstance, it’s usually a party that’s threatening to divert in a most public fashion. There have been many different news statements and other kinds of statements that a lot of these parties have made saying that they are going to keep diverting, essentially challenging us to do enforcement. A draft cease and desist order is for something that’s going on now or something that we think is likely to go on in the very near future so we seek these orders to stop that from happening, so one’s an injunctive to prevent current or future unauthorized diversions; the other one is a penalty for past unauthorized diversions.”

For more information …

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