California SB 1310: Diversion Penalty Tiers and Enforcement

California penalties for unauthorized water diversion run from $500 per day in normal conditions up to $1,000 per day plus $2,500 for every acre-foot taken during a drought emergency, with a separate ceiling of $10,000 per day for ignoring a State Water Resources Control Board cease and desist order. Water Code sections 1052 and 1845 set those ceilings, and the Board decides where within the range a given violator lands based on how much harm was done and how the diverter responded once notified.¹²

What the State Treats as Unauthorized

Section 1052 defines any diversion or use of water subject to the state’s permitting system that isn’t legally authorized as a trespass against the state.¹ That reaches four common situations:

Diverting surface water with no permit, license, or registration from the SWRCB.
Taking more than your permit allows, in volume or in rate of flow.
Continuing to divert after the Board issues a curtailment order declaring water unavailable under your priority.
Using water for a purpose or during a season your permit doesn’t cover.

One boundary worth naming: pre-1914 appropriative rights and riparian rights sit outside the permit system, which limits the Board’s direct enforcement reach over those holders. The Board still has jurisdiction over waste and unreasonable use regardless of right type, and it can act when a pre-1914 holder diverts beyond the scope of the claim.³ Disputes among competing pre-1914 or riparian claimants generally end up in court rather than before the Board.

The Penalty Tiers

Section 1052 sets different ceilings depending on when the violation occurs and what kind of operation it supports.

Normal Conditions

Outside drought, the maximum is $500 for each day the unauthorized diversion continues.¹ There is no per-acre-foot component at this tier. Over weeks of continuous diversion the daily figure still accumulates, but the Legislature put the real deterrent in the drought tier.

Drought or Declared Emergency

When the violation occurs in a critically dry year preceded by two or more consecutive below-normal, dry, or critically dry years, or during a Governor-declared drought emergency, the ceiling rises to $1,000 per day plus up to $2,500 for every acre-foot diverted beyond what the diverter was entitled to take.¹ An acre-foot is roughly 326,000 gallons. For an agricultural operation diverting hundreds of acre-feet through a curtailment, the volumetric penalty will dwarf the daily figure.

Unlicensed Cannabis Cultivation

Diversions tied to unlicensed cannabis grows carry a standalone ceiling of $3,500 per day regardless of drought conditions.¹ City attorneys and county counsel can bring these civil actions directly, with Board approval, which broadens the pool of enforcers for North Coast watersheds where illegal grows have been persistent.

Ignoring a Cease and Desist Order

The steepest exposure comes from defying a cease and desist order issued by the Board. The Board can issue a CDO whenever it finds that a person is violating or threatening to violate the trespass prohibition, a permit or license condition, or any prior Board decision.⁴ Violating a CDO during drought or a declared emergency carries civil liability up to $10,000 per day. Outside drought, the ceiling is $2,500 per day.²

These CDO penalties stack on top of the trespass penalties under section 1052. A large diverter who ignores both a curtailment and a CDO during drought faces combined exposure of up to $10,000 per day for the CDO violation plus $1,000 per day and $2,500 per acre-foot for the underlying trespass. Prolonged defiance becomes extraordinarily expensive very quickly.

How the Board Picks a Number Within the Range

Those ceilings are not automatic assessments. Section 1052(d)(1) directs the court or the Board to weigh all relevant circumstances before setting an amount, including the extent of harm caused to other users, the environment, or public trust resources; the nature and persistence of the violation; the length of time it continued; and any corrective action the violator took.¹ A diverter who stops immediately after notice and cooperates will land well below one who keeps pumping through enforcement proceedings. After a hearing the Board can impose zero liability if the facts justify it.

How Enforcement Actually Moves

The Board can pursue a cease and desist order, an administrative civil liability complaint seeking the dollar penalties, or both. It can also refer the matter to the Attorney General for a superior court action.

For a CDO, the Board sends a proposed order describing the facts, the violation, and a compliance schedule. The recipient has 20 days from receipt to request a hearing. Miss that window and the Board can adopt the order on the notice alone, with no further opportunity to contest it.⁴ This is the single most consequential deadline in the process.

For financial penalties, the Board’s executive director issues an administrative civil liability complaint stating the violation, the legal basis, and the proposed penalty.⁵ The respondent again has 20 days to request a hearing; silence lets the Board issue a final order on the allegations.⁶ Once the order is final, the Attorney General can petition superior court to collect. The Attorney General can also skip the administrative track entirely and sue in superior court for the same penalties plus injunctive relief.

If a Curtailment Order Reaches You in Error

A curtailment order tells you to stop diverting because water is no longer available under your priority. These orders can reach everyone in a watershed down to small diverters taking under 5,000 acre-feet per year.⁷

You have 30 days to file a petition for reconsideration with the SWRCB. Valid grounds include irregularity in the proceedings, lack of substantial evidence, newly available evidence, or an error of law.⁷ One trap: filing does not stay the curtailment. You must stop diverting while the challenge is pending, or penalties keep accruing day by day. A stay has to be requested separately from the Board or from a court.

Penalties Are Not Tax-Deductible

Internal Revenue Code section 162(f) bars businesses from deducting amounts paid to a government in connection with a violation or investigation of any law.⁸ A narrow exception covers amounts identified in the settlement or court order as restitution for actual damage or as payments to come into compliance, but civil penalties for unauthorized diversion are punitive and won’t qualify. A $100,000 penalty hits the bottom line in full, with no offsetting deduction.

1
California Legislative Information. California Code Water Code 1052
2
California Legislative Information. California Code Water Code WAT 1845
3
State Water Resources Control Board. Water Rights FAQs
4
Justia. California Code Water Code 1831-1836 – Article 2 Cease and Desist Orders
5
California Legislative Information. California Code WAT Section 1055
6
State Water Resources Control Board. Administrative Hearings Office Frequently Asked Questions
7
State Water Resources Control Board. Reference Guide on the Emergency Regulation and Curtailment
8
Internal Revenue Service. Transitional Guidance Under Sections 162(f) and 6050X with Respect to Certain Fines, Penalties, and Other Amounts