Unilateral Curtailment of Water Rights: Why the State Water Resource Control Board is Overstepping its Jurisdiction.
By Kuljit Singh
25 San Joaquin Agric. L. Rev. 1 (2016)
San Joaquin Agricultural Law Review
California water rights are unrivaled by anything in California’s government or politics in terms of its complexity. The Water Commission Act of 1913 created California's current system of water rights, including the critical distinction between junior and senior appropriative water users. It also established the State Water Commission and entrusted it with the power to grant permits for the appropriation of unappropriated water. Permits granted by the State Water Commission gave the applicants priorities as to the use of water. Under this system, California recognized two types of water rights, riparian and appropriative water rights. Appropriative rights are further subdivided into pre-1914 and post-1914 water rights. Post-1914 appropriative right holders are known as junior right holders while pre-1914 appropriative right holders are known as senior right holders.
In the fifth year of the record-breaking California drought, it has become important to clarify the scope of water rights and modify them for the future to prevent the State Water Resource Control Board’s (“SWRCB”) unilateral curtailment of water rights. The SWRCB began issuing curtailment orders in early 2014 to over 5,000 junior water right holders. Since April 2014, the SWRCB has issued curtailment notices to all post-1914 appropriative right holders in the Sacramento and San Joaquin River watersheds. Then, on January 23, 2015 and again on April 2, 2015, the SWRCB issued notices of water shortages and the potential for further curtailment due to dry conditions throughout the State. On June 12, 2015, the SWRCB notified pre-1914 water right holders for the Sacramento to San Joaquin watersheds and the Delta with priority dates of 1903 and later, of insufficient water in the system to service their claims of right.
In late June 2015, a Sacramento County Superior Court directed the SWRCB to halt enforcement of curtailment notices because the court felt the SWRCB overstepped its power. However, the court's decision did not affect the SWRCB's enforcement of fines for unauthorized diversions. On July 15, 2015 the SWRCB clarified the June 12, 2015 curtailment notices and partially rescinded the notices. The rescission of the curtailment notices characterized the previous notices as advisory in nature. The SWRCB reinforced the notion that there was insufficient water in the rivers and watersheds to serve all water right holders. The SWRCB also stated, "diversion of water when there is no available water is an unauthorized diversion and use and is subject to enforcement by the SWRCB." On September 18, 2015, the SWRCB lifted restrictions for some Sacramento Valley and Delta farmers because there was sufficient water to meet demand. The decision affected 238 right holders who received curtailment orders in June. There has been a pattern of issuing curtailment orders during drought conditions and rescission when water conditions improve without considering the drought conditions in the future.
This Comment will show that the SWRCB lacks the authority to curtail pre-1914 water rights, and the SWRCB's actions in unilateral curtailment of water rights was a violation of the Due Process Clause and an unconstitutional taking under the Fifth Amendment of the United States Constitution. Part II will outline riparian and pre- and post-appropriative water rights and their limitations. Next, the comment will delve into a comprehensive history of California droughts, water conditions, and the extent of the SWRCB’s authority. This comment will also discuss whether or not the SWRCB’s curtailment notices afforded the recipients proper due process and whether or not such curtailments constitute a taking under the Fifth Amendment. This comment will next recommend that with a possible multi decadal drought looming over the heads of the residents of the State of California, the water rights must be better managed. Finally, this comment will conclude that in California’s complex water law jurisprudence, redefining surface water rights is long overdue.