In re Cal. Water Curtailment Cases, H047270
| Docket Number | H047270 |
| Decision Date | 12 September 2022 |
| Parties | CALIFORNIA WATER CURTAILMENT CASES. |
| Court | California Court of Appeals Court of Appeals |
Counsel for Defendant/Appellant, State Water Resources Control Board: Rob Bonta, Attorney General, Robert W. Byrne, Senior Assistant Attorney General, Tracy L. Winsor, Supervising Deputy Attorney General, Allison Goldsmith, Kate D. Fritz, Matthew G. Bullock, Deputy Attorneys General
Counsel for Intervenor/Appellant, Department of Water Resources: Rob Bonta, Attorney General, Robert W. Byrne, Senior Assistant Attorney General, Laura J. Zuckerman, Russell B. Hildreth, Supervising Deputy Attorneys General, Carolyn Nelson Rowan, Deputy Attorney General
Counsel for Amicus Curiae on behalf of Defendant/Appellant, State Water Resources Control Board: Environmental Law Clinic, Mills Legal Clinic at Stanford Law School, Deborah A. Sivas, Matthew J. Sanders, Stephanie L. Safdi
Counsel for Plaintiff/Respondent, Byron-Bethany Irrigation District: Somach Simmons & Dunn, Michael E Vergara, Theresa C. Barfield, Alyson E. Ackerman
Counsel for Plaintiff/Respondent, Central Delta Water Agency: Nomellini Grilli & McDaniel, Dante John Nomellini, Sr., Dante John Nomellini, Jr., Daniel Allen McDaniel ; Spaletta Law PC, Jennifer L. Spaletta
Counsel for Plaintiffs/Respondents, Patterson Irrigation District and Banta Carbona Irrigation District: Herum\Crabtree\Suntag, Steven A. Herum, Jeanne M. Zolezzi, Lilliana Freeman
Counsel for Plaintiffs/Respondents, San Joaquin Tributaries Authority and South San Joaquin Irrigation District: Paris, Kincaid & Wasiewski, LLP, Valerie C. Kincaid, Timothy J. Wasiewski
Counsel for Plaintiff/Respondent, South Delta Water Agency: Mohan, Harris, Ruiz, Wortmann, Perisho & Rubino LLP, S. Dean Ruiz ; John Henry Herrick
Counsel for Plaintiff/Respondent, Oakdale Irrigation District: Tim O'Laughlin PLC, Tim O'Laughlin
We decide an appeal arising from the state's efforts in 2015 to curtail water use in the Sacramento-San Joaquin River Delta1 during a severe, multi-year drought.
Appellant State Water Resources Control Board (the Board) appeals from a judgment issuing preemptory writs of mandate. The Board's appeal turns on whether it has the authority to curtail the diversion or use of water by holders of valid pre-1914 appropriative water rights—a group with distinctive rights rooted in the history of California water law2 —under Water Code section 1052, subdivision (a)3 (hereafter section 1052(a) ) on the sole ground that there is insufficient water to service their priorities of right due to drought conditions. The trial court concluded that section 1052(a) did not authorize the Board to do so and granted relief to respondents,4 who hold pre-1914 appropriative water rights.
Section 1052(a), which appears in division 2 of the Water Code, provides: "The diversion or use of water subject to this division other than as authorized in this division is a trespass." ( § 1052(a).) This appeal requires us to construe the language "subject to this division other than as authorized in this division." The parties agree that this statute permits the Board to curtail diversions or uses of water that fall within this definition, but they disagree about its application to pre-1914 appropriative water rights.
The Board asserts that this language can, under certain conditions, extend to diversions by all or certain classes of pre-1914 appropriators. In particular, the Board argues section 1052(a) granted it authority in 2015 to curtail respondents' diversion or use of water based on its projection that there would be insufficient water to satisfy a group of pre-1914 water right holders in the Delta. Respondents counter that "subject to this division other than as authorized in this division" excludes the diversion or use of water within the scope of a valid pre-1914 appropriative right, even during times of limited water supply.
We agree with the Board that section 1052(a) provides the Board authority to enjoin a diversion or use of water that falls outside the scope of a right held by a pre-1914 appropriative right holder. But we reject its contention that the statute endows the Board with jurisdiction to curtail diversions based on alleged violations of priorities of right among valid pre-1914 right holders if it concludes that the water supply is insufficient to satisfy their entitlements. As the latter theory was the sole basis for the Board's curtailment notices at issue here, we affirm the trial court's judgment against the Board.
After "one of the driest years in recorded state history," Governor Brown proclaimed a state of emergency in January 2014 due to "severe drought conditions." In May 2014, the Board notified water right holders in the Sacramento and San Joaquin River watersheds that the Board had "determined that the existing water supply ... is insufficient to meet the needs of all water rights holders." With respect to pre-1914 appropriative and riparian water right holders, the Board asked them to "conserve water" and informed them that it might "curtail some pre-1914 and riparian water rights in the near future."5
In January 2015, the Board informed all water right holders in California that, unless there were significant improvement, it would be notifying those "in critically dry watersheds of the requirement to limit or stop diversions of water under their water right, based on their priority." It warned that "[s]ome more senior riparian and pre-1914 water right holders can also receive a notice to stop diverting water based on their priority or limitation of natural flow."
In February 2015, the Board issued an "informational order," to take effect on March 1, 2015. This order stated that the Board "has information that indicates there may be unlawful diversions of stored water by riparians or pre-1914 appropriative water right claimants in the Sacramento and San Joaquin River watershed and Delta." The Board ordered "holders claiming riparian and pre-1914 rights in the Sacramento and San Joaquin River Watershed and Delta" to provide information to the Board about their diversions and the basis for their rights and to continue to report their diversions to the Board each month. The Board explained that this information was needed "[t]o determine whether unauthorized diversions have occurred." The order noted: "Failure to comply with this Order subjects the party to enforcement action."
On April 1, 2015, the Governor issued another executive order continuing the State of Emergency due to the "severe drought conditions" in the state caused by four years of drought. The Governor ordered the Board to take various actions, including requiring "frequent reporting of water diversion and use by water right holders, conduct[ing] inspections to determine whether illegal diversions or wasteful and unreasonable use of water are occurring, and bring[ing] enforcement actions against illegal diverters and those engaging in the wasteful and unreasonable use of water."
The following day, the Board sent notices to all water right holders informing them that "[i]f dry conditions persist through the spring, it is anticipated that all holders of post-1914 and many holders of pre-1914 water rights in certain watersheds will receive curtailment notices soon." The Board said it would soon post "estimate[s of] the timing of curtailments for the various classes of water right holders."
Three weeks later, the Board sent out another set of notices after it "determined that the existing water supply in the San Joaquin River watershed is insufficient to meet the needs of all water rights holders." These notices told "all holders of post-1914 appropriative water rights within the San Joaquin River watershed ... to immediately stop diverting under their post-1914 water rights." (Underlining omitted.) The notices also "advised that, if you continue to divert under a claim of pre-1914 right, most or all pre-1914 rights in the San Joaquin River watershed are likely to be curtailed later this year due to the extreme dry conditions." One week later, the Board sent nearly identical notices to water right holders within the Sacramento River watershed.
On June 12, 2015, the Board sent out another set of notices based on its updated water supply projections telling those with "pre-1914 claims of right, with a priority date of 1903 and later for the Sacramento-San Joaquin watersheds and the Delta, that, due to ongoing drought conditions, there is insufficient water in the system to service their claims of right." The notices informed them "of the need to immediately stop diverting water with the exceptions discussed below ... until water conditions improve." (Underlining omitted.) They stated: "Holders of pre-1914 water right claims with priority dates equal to or later than 1903 are required to document receipt of this notice ... [and] confirm[ ] your cessation of diversion under the specific pre-1914 claim of right."6
Under the heading "Potential Enforcement," the notices informed recipients that
On June 16, 2015, the Board sent out a "clarification" to those who claimed both a pre-1914 appropriative water right and a riparian water right. It stated riparian rights would not be curtailed but "as of June 12, 2015, there is insufficient water in the system to meet the needs served by...
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