Compliance Monitoring Programs

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Administrative Civil Liability Authority

Water Code sections 1050 through 1055.4 provide direction for enforcement actions where an Administrative Civil Liability is considered.

1050. This division is hereby declared to be in furtherance of the policy contained in Section 2 of Article X of the California Constitution and in all respects for the welfare and benefit of the people of the state, for the improvement of their prosperity and their living conditions, and the board and the department shall be regarded as performing a governmental function in carrying out the provisions of this division.

1051. The board for the purpose of this division may:

1. Investigate all streams, stream systems, portions of stream systems, lakes, or other bodies of water.
2. Take testimony in regard to the rights to water or the use of water thereon or therein.
3. Ascertain whether or not water heretofore filed upon or attempted to be appropriated is appropriated under the laws of this State.

1051.5. In furtherance of its powers and duties under Parts 2 (commencing with Section 1200) and 3 (commencing with Section 2000) of this division, the board may supervise trial distribution of water in accordance with agreements and court orders therefor.

1052.

1. The diversion or use of water subject to this division other than as authorized in this division is a trespass.
2. The Attorney General, upon request of the board, shall institute in the superior court in and for any county where the diversion or use is threatened, is occurring, or has occurred an action for the issuance of injunctive relief as may be warranted by way of temporary restraining order, preliminary injunction, or permanent injunction.
3. Any person or entity committing a trespass as defined in this section may be liable in an amount not to exceed the following:
   1. If the unauthorized diversion or use occurs in a critically dry year immediately preceded by two or more consecutive below normal, dry, or critically dry years or during a period for which the Governor has issued a proclamation of a state of emergency under the California Emergency Services Act (Chapter 7 (commencing with Section 8550) of Division 1 of Title 2 of the Government Code) based on drought conditions, the sum of the following:
      1. (A) One thousand dollars ($1,000) for each day in which the trespass occurs.
      2. (B) Two thousand five hundred dollars ($2,500) for each acre-foot of water diverted or used in excess of that diverter's water rights.
   2. If the unauthorized diversion or use is not described by paragraph (1), five hundred dollars ($500) for each day in which the unauthorized diversion or use occurs.
4. Civil liability for a violation of this section may be imposed by the superior court or the board as follows:
   1. The superior court may impose civil liability in an action brought by the Attorney General, upon request of the board, to impose, assess, and recover any sums pursuant to subdivision (c). In determining the appropriate amount, the court shall take into consideration all relevant circumstances, including, but not limited to, the extent of harm caused by the violation, the nature and persistence of the violation, the length of time over which the violation occurs, and the corrective action, if any, taken by the violator.
   2. The board may impose civil liability in accordance with Section 1055.
5. All funds recovered pursuant to this section shall be deposited in the Water Rights Fund established pursuant to Section 1550.
6. The remedies prescribed in this section are cumulative and not alternative.

1053. A full and accurate record of business or acts performed or of testimony taken by the board and the department in pursuance of the provisions of this division shall be kept and be placed on file in the office of the board or the department, as the case may be.

1054. The board and the department may certify to all of their official acts and may certify copies of all official documents and orders filed in their respective offices. For the purpose of making such certifications, the board and the department may adopt seals.

1055.

1. The executive director of the board may issue a complaint to any person or entity on which administrative civil liability may be imposed pursuant to Section 1052, Article 4 (commencing with Section 1845) of Chapter 12 of Part 2 of Division 2, or Section 5107. The complaint shall allege the act or failure to act that constitutes a trespass or violation, the provision of law authorizing civil liability to be imposed, and the proposed civil liability.
2. The complaint shall be served by personal notice or certified mail, and shall inform the party served that the party may request a hearing not later than 20 days from the date the party was served. The hearing shall be before the board or a member of the board, in accordance with Section 183.
3. The board, after any necessary hearing, may adopt an order setting administrative civil liability, or determining that a liability shall not be imposed.
4. Orders setting administrative civil liability shall become effective and final upon issuance thereof and payment shall be made.

1055.2. A person or entity shall not be subject to both civil liability imposed under Section 1055 and civil liability imposed by the superior court under Section 1052 or Article 4 (commencing with Section 1845) of Chapter 12 of Part 2 of Division 2 for the same act or failure to act.

1055.3. In determining the amount of civil liability, the board shall take into consideration all relevant circumstances, including, but not limited to, the extent of harm caused by the violation, the nature and persistence of the violation, the length of time over which the violation occurs, and the corrective action, if any, taken by the violator.

1055.4. After the time for review under Chapter 4 (commencing with Section 1120) has expired, the board may apply to the clerk of the appropriate court for a judgment to collect the administrative civil liability imposed in accordance with Section 1055. The application, which shall include a certified copy of the board action, constitutes a sufficient showing to warrant issuance of the judgment. The court clerk shall enter the judgment immediately in conformity with the application. The judgment so entered has the same force and effect as, and is subject to all the provisions of law relating to, a judgment in a civil action, and may be enforced in the same manner as any other judgment of the court in which it is entered.

5107.

1. The making of any willful misstatement pursuant to this part is a misdemeanor punishable by a fine not exceeding one thousand dollars ($1,000) or by imprisonment in the county jail for not to exceed six months, or both.
2. Any person who fails to file a statement required to be filed under this part for a diversion or use that occurs after January 1, 2009, who tampers with any measuring device, or who makes a material misstatement pursuant to this part may be liable civilly as provided in subdivisions (c) and (d).
3. Civil liability may be administratively imposed by the board pursuant to Section 1055 in an amount not to exceed the following amounts:
   1. For failure to file a statement, one thousand dollars ($1,000), plus five hundred dollars ($500) per day for each additional day on which the violation continues if the person fails to file a statement within 30 days after the board has called the violation to the attention of that person.
   2. For a violation resulting from a physical malfunction of a measuring device not caused by the person or any other unintentional misstatement, two hundred fifty dollars ($250), plus two hundred fifty dollars ($250) per day for each additional day on which the measuring device continues to malfunction or the misstatement is not corrected if the person fails to correct or repair the measuring device or correct the misstatement within 60 days after the board has called the malfunction or violation to the attention of that person.
   3. For knowingly tampering with any measuring device or knowingly making a material misstatement in a statement filed under this part, twenty-five thousand dollars ($25,000), plus one thousand dollars ($1,000) for each day on which the violation continues if the person fails to correct the violation within 30 days after the board has called the violation to the attention of that person.
   4. For any other violation, five hundred dollars ($500), plus two hundred fifty dollars ($250) for each additional day on which the violation continues if the person fails to correct the violation within 30 days after the board has called the violation to the attention of that person.
4. When an additional penalty may be imposed under subdivision (c) for failure to correct a violation or correct or repair a malfunctioning measuring device within a specified period after the violation has been called to a person's attention by the board, the board, for good cause, may provide for a longer period for correction of the problem, and the additional penalty shall not apply if the violation is corrected within the period specified by the board.
5. In determining the appropriate amount, the board shall consider all relevant circumstances, including, but not limited to, all of the following factors:
1. The extent of harm caused by the violation.
2. The nature and persistence of the violation.
3. The length of time over which the violation occurs.
4. Any corrective action undertaken by the violator.
6. All funds recovered pursuant to this section shall be deposited in the Water Rights Fund established pursuant to Section 1550.
7. Remedies under this section are in addition to, and do not supersede or limit, any other remedies, civil or criminal.

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Cease and Desist Order Authority

Water Code sections 1825 through 1836 provide direction for enforcement actions where a Cease and Desist Order is considered.

1825. It is the intent of the Legislature that the state should take vigorous action to enforce the terms and conditions of permits licenses, certifications, and registrations to appropriate water, to enforce state board orders and decisions, and to prevent the unlawful diversion of water.

1831.

1. When the board determines that any person is violating, or threatening to violate, any requirement described in subdivision (d), the board may issue an order to that person to cease and desist from that violation.
2. The cease and desist order shall require that person to comply forthwith or in accordance with a time schedule set by the board.
3. The board may issue a cease and desist order only after notice and an opportunity for hearing pursuant to Section 1834.
4. The board may issue a cease and desist order in response to a violation or threatened violation of any of the following:
   1. The prohibition set forth in Section 1052 against the unauthorized diversion or use of water subject to this division.
   2. Any term or condition of a permit, license, certification, or registration issued under this division.
   3. Any decision or order of the board issued under this part, Section 275, Chapter 11 (commencing with Section 10735) of Part 2.74 of Division 6, or Article 7 (commencing with Section 13550) of Chapter 7 of Division 7, in which decision or order the person to whom the cease and desist order will be issued, or a predecessor in interest to that person, was named as a party directly affected by the decision or order.
   4. A regulation adopted under Section 1058.5.
   5. Any extraction restriction, limitation, order, or regulation adopted or issued under Chapter 11 (commencing with Section 10735) of Part 2.74 of Division 6.
5. This article shall not authorize the board to regulate in any manner, the diversion or use of water not otherwise subject to regulation of the board under this part.

1832. Cease and desist orders of the board shall be effective upon the issuance thereof. The board may, after notice and opportunity for hearing, upon its own motion or upon receipt of an application from an aggrieved person, modify, revoke, or stay in whole or in part any cease and desist order issued pursuant to this chapter.

1834.

1. In the event that a violation of a requirement described in subdivision (d) of Section 1831 is occurring or threatening to occur, the board shall give notice by personal notice or certified mail, pursuant to which the party shall be informed that he or she may request a hearing not later than 20 days from the date on which the notice is received, to the person allegedly engaged in the violation. The notice shall contain a statement of facts and information that would tend to show the proscribed action, and notification of the requirements of subdivision (b).
2. Unless a written request for a hearing signed by or on behalf of the notified party is delivered to or received by mail by the board within 20 days after receipt of the notice, the board may adopt a cease and desist order, based on the statement of facts and information set forth in the notice, without a hearing.

1835. As used in this chapter, "person" includes any city, county, district, the state, or any department or agency thereof, and the United States to the extent authorized by law.

1836. Nothing in this chapter shall preclude the board from issuing any order or taking any other action authorized pursuant to Sections 275 and 1052.

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Revocation Authority

Water code sections 12401 - 1241, 1410 - 1410.2, and 1675 – 1675.2 provide direction for enforcement actions where Revocation, or partial Revocation, of a water right is considered.

Applicable to appropriative water rights, in general:

1240. The appropriation must be for some useful or beneficial purpose, and when the appropriator or his successor in interest ceases to use it for such a purpose the right ceases.

1241. When the person entitled to the use of water fails to use beneficially all or any part of the water claimed by him, for which a right of use has vested, for the purpose for which it was appropriated or adjudicated, for a period of five years, such unused water may revert to the public and shall, if reverted, be regarded as unappropriated public water. Such reversion shall occur upon a finding by the board following notice to the permittee and a public
hearing if requested by the permittee.

Applicable to appropriative water right permits, specifically:

1410.

1. There shall be cause for revocation of a permit if the work is not commenced, prosecuted with due diligence, and completed or the water applied to beneficial use as contemplated in the permit and in accordance with this division and the rules and regulations of the board.
2. A permit may be revoked under either of the following procedures:
   1. If, after a hearing on a petition for extension of time to complete a project and apply water to beneficial use, the board finds that cause exists to revoke the permit, the board may revoke the permit.
   2. If, after an investigation other than a hearing on a petition for extension of time, it appears that cause exists to revoke a permit, the board shall give notice of proposed revocation in writing, mailed in a sealed, prepaid postage and certified letter to the permittee at his or her last known address. If the permittee fails to request a hearing with the time provided under Section 1410.1, the board shall revoke the permit and declare the water subject to appropriation. After a hearing, when a hearing is requested by the permittee pursuant to Section 1410.1, the board may, upon a finding that cause exists, revoke the permit and declare the water subject to appropriation.

1410.1. The notice of proposed revocation of the permit pursuant to paragraph (2) of subdivision (b) of Section 1410 shall contain a statement of facts and information upon which the proposed revocation is based, and shall include a statement substantially in the following form:  Unless a written request for a hearing signed by or on behalf of the permittee is delivered or mailed to the board within 15 days after receipt of this notice, the board may act upon the proposed revocation of the permit without a hearing. Any request for a hearing may be made by delivering or mailing the request to the board at the address given on the notice.

1410.2. In any case when a permit is revoked without a hearing, as provided in Section 1410.1, the permittee, within 90 days of the date of the order of revocation, may file with the board a request to set aside the revocation, and the board, for good cause shown, may reinstate the permit.

Applicable to appropriative water right licenses, specifically:

1675. If at any time after a license is issued, the board finds that the licensee has not put the water granted under the license to a useful or beneficial purpose in conformity with this division or that the licensee has ceased to put the water to such useful or beneficial purpose, or that the licensee has failed to observe any of the terms and conditions in the license, the board, after due notice to the licensee and after a hearing, when a hearing is requested by the licensee pursuant to Section 1675.1, may revoke the license and declare the water to be subject to appropriation in accordance with this part. As used in this section "licensee" includes the heirs, successors, or assigns of the licensee.

1675.1. The notice of proposed revocation of the license pursuant to Section 1675 shall contain a statement of facts and information upon which the proposed revocation is based, and shall include a statement substantially in the following form:  Unless a written request for a hearing signed by or on behalf of the licensee is delivered or mailed to the board within 15 days after receipt of this notice, the board may act upon the proposed revocation of the license without a hearing. Any request for a hearing may be made by delivering or mailing the request to the board at the address given on the notice.

1675.2 In any case when a license is revoked without a hearing, as provided in Section 1675.1, the licensee, within 90 days of the date of the order of revocation, may file with the board a request to set aside the revocation, and the board, for good cause shown, may reinstate the license.

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