Court order puts water cuts into question
By Kate Campbell
A court ruling issued at the end of last week has called into question the state's ability to directly regulate long-established water rights and to order peremptory and widespread water cutbacks.
A Sacramento judge granted a temporary restraining order to prevent curtailment of water to four Central California irrigation districts and allow review of the curtailment process for pre-1914 water right holders.
"It's definitely a rebuke to the state water board," said Chris Scheuring, California Farm Bureau Federation environmental attorney. "There are some who'd like the board's enforcement authority to be more global and self-executing, but the court didn't see it that way."
The request for a temporary restraining order against State Water Resources Control Board enforcement of curtailment orders was brought by the West Side Irrigation District of Tracy and the Stockton-based Central Delta Water Agency, South Delta Water Agency and Woods Irrigation Co., which received curtailment notices for their senior diversion rights in May and June.
Sacramento Superior Court Judge Shelleyanne Chang ruled that curtailment letters—including the requirement that recipients sign a compliance certification confirming they've stopped diversion—result in a taking of property rights without a hearing, violating the constitutional right to due process.
The judge ruled the letters sent by the water board to the districts were "coercive" and threatening, said attorney Jennifer Spaletta of Lodi, who represents one of the irrigation districts that sought the court order.
She said the judge also found that the water board order lacked an opportunity for the irrigation districts to respond.
"The plaintiffs are all diverters from (the Sacramento-San Joaquin Delta), where water availability is more complicated because of the influence of the bay and significant return flows," Spaletta said.
"The plaintiffs believe there's still water available to divert under their senior rights," she said. "The court agreed that the board can't order them to stop until they've had notice and an opportunity to be heard on the issue of how much water is available to divert—it's basic due process principles."
Curtailment letters to the senior water right holders said because of the drought emergency, diverters could be subject to "enhanced penalties of up to $1,000 per day and $2,500 per acre-foot of water diverted."
No one denies 2015 has been an extraordinarily dry year, Scheuring said, adding that "even the most senior water rights holders understand they may not have water this year."
Scheuring said the state water board does not have direct statutory authority over pre-1914 water rights, and that the court found that to be the case.
"It's not that the water board doesn't have authority to prevent waste and unreasonable use, or to stop illegal diversions," Scheuring said. "It certainly does. But those authorities don't add up to the right to curtail legitimate pre-1914 water rights without due process. That's what this is about."
In issuing the temporary restraining order, Chang wrote: "The curtailment letters, including the requirement that recipients sign a compliance certification confirming cessation of diversion, result in a taking of (water right holders') property rights without a pre-deprivation hearing, in violation of due process rights."
The water board said in a prepared statement that it is reviewing the court order, calling it "limited in scope" and only concerning the specific form of notice letter sent in May and June by its Division of Water Rights.
"While the order finds fault with the language of the notice, the order states: 'To be clear, (the water board and its staff) are free to exercise their statutory authority to enforce the Water Code as to any water user, including these petitioners, if it deems them to be in violation of any provisions of the Water Code, so long as the bases for said action are not the Curtailment Letters.'"
Scheuring said the court found the curtailment letters were much more than informational notices, and observed the "bright line" between pre- and post-1914 water rights and the state board's jurisdiction.
"Nothing, including this year's extreme drought, has changed the board's basic statutory authorities," he said. "The court's order supports that thought."
Water rights are property rights, Scheuring added.
"People depend on them for their livelihoods, and restricting them requires appropriate due process," he said.
(Kate Campbell is an assistant editor of Ag Alert. She may be contacted at email@example.com.)
Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.