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Water Board’s Drought Curtailments Ruled Unlawful

March 1, 2018

In a decision restricting California’s power to limit certain water diversions, the Santa Clara County Superior Court held last week that the State Water Resources Control Board exceeded its statutory jurisdiction and violated due process by issuing curtailment notices in 2015 to pre-1914 appropriative water rights holders. 

As part of the state’s response to the six-year drought, the Board issued mandatory curtailment notices to water users within the Sacramento and San Joaquin River watersheds, including instructing appropriative water rights holders with priority dates of 1903 or later to “immediately stop diverting” water.  Several agencies holding appropriative water rights with pre-1914 priority dates, which are excluded from the state’s permitting system, immediately challenged the curtailment notices.  The consolidated case also ultimately expanded to include a cease-and-desist order issued against the West Side Irrigation District and a civil liability complaint brought against the Byron-Bethany Irrigation District in response to the curtailment notices, both of which involved significant potential liability.  Although the Board eventually walked back its demands in those cases, it maintained that it had the authority to issue the notices.

In the court decision, Judge Brian C. Walsh held that the Board lacked jurisdiction to enforce certain penalties under Water Code section 1052 against pre-1914 appropriative water rights holders.  That section provides that “[t]he diversion or use of water subject to this division other than as authorized in this division is a trespass” enforceable by administrative penalties and civil liability.  The court reasoned that pre-1914 rights fell outside the statute’s scope because they were not “authorized in” that portion of the Water Code, “but pre-date it.”  But the court also noted that the Board retains other enforcement powers over senior water rights holders, including its power to enforce the California Constitution’s prohibition on unreasonable water use, that were not at issue.

In a decision with broader applicability, the court also concluded that the Board had denied the water agencies due process by forgoing any public, predeprivation review of its “large-scale, complex, and burdensome” curtailment decision.  Any future curtailment process must provide water users “some meaningful opportunity to challenge the underlying findings before they are ordered to curtail their water use and before fines for noncompliance begin to accrue against them.”  Notably, however, the court distinguished between the prescriptive notices at issue and subsequent informational notices the petitioners had not challenged.  The court also highlighted the possibility that the Board would be able to bring curtailment orders under legislatively authorized emergency regulations, which were not in place at the time.

The opinion, available in full here, resolved claims for writ of mandate and declaratory relief in the first phase of a three-phase trial.  The remaining phases of the case include takings claims brought by several water suppliers. 

Because the Board’s authority to limit unreasonable water uses under the California Constitution was not at issue, the decision should have little direct effect on the Board’s proposed permanent unreasonable use regulations limiting specific water uses, such as washing off driveways and maintaining landscaped medians.  The Board has extended the public comment period and is accepting comments through March 7.  O’Melveny attorney Heather Welles recently spoke with Northern California’s KQED News about the constitutionality of those regulations. 

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Heather Welles, an O'Melveny associate licensed to practice law in California, Buzz Thompson, an O'Melveny of counsel licensed to practice law in California, Matt Kline, an O'Melveny partner licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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