An appellate court has ruled California’s water agency exceeded its authority to curtail water allocations for farmers and ranchers in 2015.
The case stems from orders imposed by the State Water Resources Control Board (SWRCB) in 2015 for water holders of pre-1914 appropriative water rights in the Sacramento-San Joaquin River Delta.
Santa Clara County Superior Court Judge Brian C. Walsh ruled on Sept. 12 SWRCB exceeded its enforcement authority under the state’s Water Code Section 1052(a), which states, “The diversion or use of water subject to this division other than as authorized in this division is a trespass.” SWRCB appealed the case, and California’s 6th District Court of Appeal upheld the decision by the court.
SWRCB asserted the language “can, under certain conditions, extend to diversions by all or certain classes of pre-1914 appropriators,” according to court documents. Several irrigation districts in the river delta area countered that the language in the water code excludes the diversion or use of water for pre-1914 appropriative rights, even during times of limited water supply.
In 2014, then-Gov. Jerry Brown (D) issued a state of emergency due to extreme drought conditions. In 2015, SWRCB issued an informational order to irrigation districts in the delta, requiring districts to provide information “about their diversions and the basis for their rights and to continue to report their diversions to the board each month.”
In late April 2015, SWRCB issued a notice after “determining that the existing water supply in the San Joaquin River watershed is insufficient to meet the needs of all water rights holders.” In June 2015, SWRCB sent additional notices, stating those with pre-1914 claims with a priority date of 1903 and later need to stop diverting water immediately, or they will be subject to fines.
After fighting back and forth with enforcement proceedings, the Santa Clara County Superior Court ruled SWRCB is limited to its authority under the water code. The court held that Water Code Section 1052(a) does not provide SWRCB authority to “curtail an entire class of pre-1914 appropriative water rights solely on the basis that the (SWRCB) believes that there will be insufficient water to serve all pre-1914 appropriative rights.”
The appellate court agreed with the superior court in its September ruling that SWRCB lacked authority under Section 1052(a) to issue the 2015 curtailments. The opinion closed with the statement, “Nothing we have said in this opinion precludes the (SWRCB) from properly exercising its authority over pre-1914 appropriative water right holders under the public trust doctrine, applicable emergency regulations, or other appropriate authority.”
Reactions
SWRCB issued a statement after the ruling, stating the decision does not impact the board’s “ongoing drought response actions, including curtailments of senior water rights, which rely on drought emergency regulations.” The statement continued the court’s decision does not eliminate the board’s authority to issue emergency orders—enhanced by the Legislature in 2014—and they will continue to do so due to threats to the water supply.
“Water scarcity is one of the most important challenges facing Californians,” SWRCB said in a statement. “Ensuring that water districts and others divert and use water consistent with the state’s water right priority system is critical to protecting public health and the delivery system for farms, communities and the environment.”
California Farm Bureau (CFB) Senior Counsel Chris Scheuring said the decision signals the state cannot regulate the water supply and demand by targeting senior water rights. “The decision is a win for the water rights system and certainty in its administration, even though in some ways it’s just a statement of what has always been the case—the state water board has direct regulatory authority over only those water rights developed after the enactment of the Water Commission Act of 1913,” Scheuring said in a statement.
Scheuring and CFB President Jamie Johansson emphasized the need for new water infrastructure and supplies.
“As food prices continue to skyrocket, this is a wake-up call for those in charge of California’s water system to reject their current policy of scarcity,” Johansson said. “We need to build water storage and invest in improved water conveyance as a vast majority of California voters called for in approving the Proposition 1 water bond in 2014. This is a reminder that the state needs to act on those voter wishes.”
Doug Obegi, director of the water division at the Natural Resources Defense Council, told the Sacramento Bee the decision by SWRCB during the last drought was an important step to ensure there was enough water in the state’s rivers to protect threatened species of fish and to ensure the rivers in the Sacramento-San Joaquin River Delta don’t run dry. Obegi said the ruling is a call for the Legislature to strengthen SWRCB’s authority “so that we ensure that no one is above the law.”
As of early September, SWRCB has scaled back curtailments on the Sacramento River watershed, with appropriative water rights with a priority date of 1947 or later remaining curtailed. All appropriative water rights within the San Joaquin River watershed have been curtailed. — Charles Wallace, WLJ editor
