The Water Board takes legal actions against individuals, associations, companies, etc. (parties), regarding diversions, surface and groundwater pollution, mis-reporting or not reporting diversions, noncompliance with permits and licenses, underground storage tanks, and more. Prior to assessing fines, Water Board managers, attorneys, or staff make phone calls to to the suspected parties, and they may make field visits to confirm allegations or gather more information. Sometimes that’s enough – a phone call or visit may move a person to change practices, or take corrective action, and comply with the law.
The Water Board will follow up their calls or visits with a letter summarizing the facts, allegations, and actions taken by parties. That may close out a complaint (if that is how the actions came to the Board’s attention) or may complete an investigation, with the provision that the promised corrective action will be done.
Their letters may seek information about alleged infractions, or may be cease and desist orders, or may convey the results of investigations and hearings including what fines or other penalties are assessed.
The Water Board relies on the California Water Code, case law from lawsuits in the State Superior Courts or other courts, and those resolutions, orders, and decisions made by the Board itself, which it designates as “precedential”. That means the Board looks back at these documents to help make decisions in the future.
In many cases the Board does not act alone, since it is just one of many California state and federal agencies. It may combine its efforts with the California Department of Fish and Wildlife (CDFW, was Fish and Game), the U.S. Fish and Wildlife Service (USFWS), the State Attorney General (AG), the U.S. Army Corps of Engineers (USACE)…the list could include many more. How does this cooperation with other agencies work?
The Water Board has authority over many water rights and uses of water, but other agencies have the primary authority over other uses of water. For example, CDFW has authority over the California Fish and Game Code, which gives guidance on how much water must be left in streams by diverters. Solid scientific studies must be made to prove how much water is needed. In place (or pending the outcome) of these expensive, long-term studies, CDFW determines and/or negotiates flow amounts, and the Water Board uses their power to convince diverters to comply. This works because CDFW could not prove the exact need in the near future, and CDFW is very reluctant to go to court to sue diverters. However, the Water Board can act on the “best available information” or “reasonable estimates” to determine how much water must be left…and the Water Board can assess fines by itself without having to go to the Superior Court. This makes for some very interesting stories…and those will be taken up in a later post.