The first appellate court to consider a case regarding California’s curtailments of senior water rights held that the State Water Resources Control Board (“State Water Board” or “Board”) lacked authority under Water Code section 1052(a) to curtail pre-1914 water rights based on the unavailability of water for use under such rights.
The curtailment cases began in 2015, in the middle of a multi-year drought, when the State Water Board curtailed the exercise of many water rights across the state in an effort to implement the priority system arising from California’s water laws. During a drought water shortage, the priority system allocates available water supplies according to the relative priority of competing rights, with lower-priority rights getting no water in order to protect higher-priority rights. The 2015 curtailments included some pre-1914 appropriative water rights, which are relatively high-priority because they were established before the state legislature created the State Water Board’s predecessor agency to regulate water rights in California.
A group of curtailed pre-1914 right holders challenged the 2015 curtailments on many grounds, including due process claims and substantive claims that the State Water Board exceeded its authority in issuing the curtailments. The case was on hold during an administrative enforcement action the State Water Board brought against the group of curtailed pre-1914 right holders for allegedly diverting water after curtailment notices were issued.
The administrative proceedings concluded with the State Water Board finding that its own curtailment prosecution team failed to meet its burden of proving that water was unavailable for use by the pre-1914 rights holders under the water right priority system. The civil case against the State Water Board then resumed, and the trial court held that the State Water Board violated due process and lacked the authority to issue the curtailments.
The State Water Board appealed the trial court’s decision to the Sixth Appellate District of the California Court of Appeal. The sole issue on appeal was whether the State Water Board has the authority to curtail pre-1914 water rights under Water Code section 1052(a) on the grounds that there was insufficient water available for use under the pre-1914 right holders’ priority dates due to drought. The Board did not appeal the trial court’s due process ruling.
Water Code section 1052(a) provides: “The diversion or use of water subject to this division other than as authorized in this division is a trespass.” The parties agreed the State Water Board may curtail diversions under section 1052(a) when the section applies but disagreed as to whether the section applies to pre-1914 rights. The court analyzed whether water diverted under a pre-1914 right is “water subject to this division other than as authorized in this division[,]” with “this division” referring to division 2 of the Water Code. Division 2 provides a comprehensive permitting and licensing scheme for appropriating water but does not define the water that is subject to its provisions.
In analyzing whether a pre-1914 water right is subject to division 2, the court noted that two sections of the Water Code state the intent not to affect water rights established prior to the enactment of the Water Code (e.g., pre-1914 appropriative rights). Additionally, the California Supreme Court in Shirokow concluded that the rights not subject to division 2 include only riparian and pre-1914 rights. However, more recent cases have held that the State Water Board’s division 2 authority extends to some diversions or uses of pre-1914 appropriative rights. Specifically, the State Water Board has the authority to take enforcement action to determine the validity, extent, and forfeiture of a claimed pre-1914 right (Young) and to determine the proper scope of a pre-1914 right to preclude excessive diversion (Millview). Neither Young nor Millview considered whether the Board may determine that a diversion violates priorities among pre-1914 rights under drought conditions.
Next, the appellate court considered the legislative history of section 1052(a), which the court found “demonstrates that the Legislature has always restricted the Board’s authority over pre-1914 water rights[.]”
The Board also argued that section 1052(a) authorized the Board to curtail pre-1914 rights to protect previously stored water delivered through the Sacramento-San Joaquin River Delta at the time of the 2015 curtailments—like stored water released from the State Water Project’s (“SWP”) Lake Oroville for delivery to SWP contractors who pay for the stored water. The court dismissed that argument, finding that the official notices issued to carry out the 2015 curtailment focused on insufficient water supply and not protection of stored water releases. Although California water rights law protects stored water releases from unauthorized diversion and use by third parties, the court found the content of 2015 curtailment notices insufficient to protect such water. After finding that the Board did not base the curtailment notices on the need to protect stored water releases, the court rejected the Board’s defense of the 2015 curtailments on that ground.
Ultimately, the court held that the State Water Board does not have the authority to curtail valid pre-1914 rights based on insufficient water available to service the pre-1914 right holders’ priorities of right due to drought conditions.
However, the court emphasized that its decision does not leave the State Water Board powerless to implement the state’s water right priority system in times of drought. The court cited the Board’s authority to adopt emergency regulations under Water Code sections 1058.5 and 876.1 to curtail water diversions when water is not available under the diverter’s priority of right, and noted that neither these statutory sections nor the corresponding regulations contain the same limits on scope found in section 1052(a). The court found that if the State Water Board had utilized emergency regulations in 2015, “the curtailment orders at issue here might well have been within its authority.”
The State Water Board has based curtailment orders issued in 2021 and 2022 on emergency regulations adopted pursuant to section 1058.5. The court emphasized that its decision addresses only the Board’s authority under section 1052(a), and does not preclude the Board from properly exercising its authority over pre-1914 rights “under the public trust doctrine, applicable emergency regulations, or other appropriate authority.”
Questions
If you have any questions regarding this Legal Alert, please contact the following attorneys or any of Kronick’s Municipalities and Special Districts or Water Law attorneys.
Lauren Bernadett
lbernadett@kmtg.com | 916-321-4347
Eric Robinson
erobinson@kmtg.com | 916.321.4576
Dan O’Hanlon
dohanlon@kmtg.com | 916.321.4522
Relevant Content
If you found value in this article, you might be interested in these links: