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Environmental Blog

  • 16
  • July
  • 2015

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California Judge Limits Water Board’s Power to Order Curtailments in Drought

Last week, a California trial court issued a temporary restraining order against the State Water Resources Control Board, blocking its efforts to enforce curtailment letters sent to four Central Valley irrigation districts in May and June. In the five-page order, Sacramento Superior Court Judge Shelleyanne Chang wrote that “[t]he curtailment letters, including the requirement that the recipients sign a compliance certification confirming cessation of diversion, result in a taking of [the districts’] property rights without a pre-deprivation hearing, in violation of petitioner’s due process rights.” The order barred the Board from taking further actions against the irrigation districts for failing to comply with the letters. Judge Chang also required the Board to issue revised letters that would be “merely information in nature.”

On Wednesday, the Board sent new letters to 4,600 rights holders—not just the four districts that that won the temporary restraining order—that received curtailment notices in April, May, and June. Re-written to address the court’s Due Process concerns, the letters seek to ensure that rights holders are “aware of the severity of the situation” and have “reliable information regarding the amount of water available for their diversions.” The Board emphasized that the new notices should not be construed as enforcement documents or legal orders and it rescinded the certification requirement that the court found problematic.

California’s surface water rights law is based on seniority. Senior water rights are those established prior to the Water Commission Act, which took effect in 1914 and established California’s present system of water rights and the distinction between junior and senior appropriative water rights. In drought years, users with more junior water rights may receive orders to stop diverting water from rivers and streams before further restrictions are imposed on those with more senior water rights.

The State Water Resources Control Board administers California’s surface water rights system and has authority to prevent illegal diversions. On January 17, 2015, Governor Brown proclaimed a drought state of emergency and instructed the Board to notify water right holders that they could be required to reduce or cease diversions from streams and rivers due to lower water conditions. In May and June, the Board’s Executive Director sent curtailment letters to hundreds of senior water rights holders in the Central Valley. The curtailment letters required the recipients to certify that they had ceased diverting and threatened enforcement proceedings and fines of $1,000 per day plus $2,500 per acre-foot diverted for failure to comply.

Four California water districts claiming pre-1914 rights—the West Side Irrigation District, the Central Delta Water Agency, the South Delta Water Agency, and Woods Irrigation Co.—filed suit against the Board on June 29. The petitioners argued that the curtailment letters constituted an unconstitutional taking of private property and that the Board violated due process rights by issuing the letters without prior notice and an opportunity to be heard.

On June 9, Judge Chang issued an order that agreed with the districts’ due process arguments and enjoined the Board from enforcing the letters against the districts. The Board claimed that the curtailment letters were merely “informative,” but the court rejected that argument, pointing to the letters’ explicit language that required users to “immediately stop diverting water” and sign a certification that “confirms your cessation of diversion.” However, the court acknowledged that the Board does have authority to issue fines for illegal diversions after holding a hearing. Furthermore, the temporary restraining order applies only the Board’s actions against the four water districts that filed suit and does not affect thousands of other water rights users who have suffered curtailments during the drought.

Even though the new letters appear to satisfy most of the court’s due process concerns, several questions regarding the legality of the Board’s actions remain. Because Judge Chang did not specify what type of pre-deprivation hearing would meet due process requirements, it is not clear what steps the Board may take to enforce curtailment orders against the four districts after a hearing takes place. Furthermore, other water users involved in similar litigation have challenged the Board’s general authority to curtail senior water rights under any circumstance. Judge Chang’s order did not address that argument. These unresolved issues raise doubts about the Board’s authority to impose curtailments against other senior water rights holders in the watershed, and may embolden other senior rights holders to challenge future curtailments.

1 In their petition, the districts provided a striking example of the magnitude of the potential fines: Irrigation of a single 100-acre farm, with 3 acre-feet of water applied over 20 days would amount to a potential penalty of $770,000.00 [(100 acres x 3 acre-feet/acre x $2,500/acre-foot) + (20 days x $1,000/day).

Posted at 07/17/2015 12:55 PM

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