Yesterday the Court of Appeal for the Sixth Appellate District agreed with Santa Clara County Superior Court Judge Walsh (Ret.) that the State Water Resources Control Board’s (State Board) curtailment of certain water right holders’ diversions during the 2015 drought was done outside of its enforcement authority under Water Code section 1052.

In 2015, the State Board issued curtailment orders to valid pre-1914 appropriative water right holders. The curtailment orders demanded these water right holders to immediately cease diversions and certify that their diversions, in fact, had ceased. The State Board based the curtailment orders on a purported insufficient available supply of water to serve these water rights. Numerous water service providers located in the Sacramento-San Joaquin River Delta challenged the curtailment orders.

The State Board relied on its enforcement authority in Water Code section 1052, subdivision (a). This provision, 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.”

The issue before the court was one of statutory interpretation. The accuracy of the State Board’s allegation that there was insufficient water supply to meet the needs of some pre-1914 appropriative water right holders was not material to the appeal. Instead, the court’s focus was “[t]hat the Board asserted jurisdiction based on this conclusion.”

The court construed the language of section 1052, subdivision (a). In so doing, the court analyzed section 1052’s plain language, its context within the larger statutory framework, case law interpreting relevant statutes, and the Legislature’s intent in both enacting and amending section 1052.

The Court held that Water Code section 1052(a) does not provide the State Board authority to “curtail an entire class of pre-1914 appropriative water rights solely on the basis that the Board believes that there will be insufficient water to serve all pre-1914 appropriative rights.”

This opinion is certified for publication.

Somach Simmons & Dunn represented Byron-Bethany Irrigation District as a Respondent in the appeal before the Sixth District Court of Appeal, as well as throughout the trial court and administrative enforcement proceedings precipitating the appeal. Somach Simmons & Dunn also serves as general counsel to Byron-Bethany Irrigation District.

If you have any questions about this opinion or water rights in general, please contact Michael Vergara (mvergara@ somachlaw.com), Theresa Barfield (tbarfield@somachlaw.com), Alyson Ackerman (aackerman@somachlaw.com),  Jared Mueller (jmueller@somachlaw.com), or Ellen Moskal (emoskal@somachlaw.com) for more information.

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