On July 10, 2015, the Sacramento County Superior Court held that curtailment notices sent by the State Water Resources Control Board (SWRCB), directing water users to “immediately stop diverting water,” resulted in a taking of property rights without a pre-deprivation hearing and violated the water users’ due process rights.  (West Side Irrigation District v. California State Water Resources Control Board, Sac. County Sup. Ct. Case No., 34-2015-80002121, July 10, 2015).  The court issued a temporary restraining order prohibiting the SWRCB from taking any action against the water users involved in the case based on the curtailment notices.

The case, brought by the West Side Irrigation District (WSID), Central Delta Water Agency, South Delta Water Agency, and Woods Irrigation Company, is one of many challenging the SWRCB’s attempts to curtail senior water rights holders.  In response to the court’s order, the SWRCB has partially rescinded and reissued water supply availability notices to more than 4,600 junior and senior water rights holders.  The reissued notice explains that it rescinds the “curtailment” portions of the previous notices and clarifies that the previous notices were only advisory.  The reissued notice goes on to explain that information available to the SWRCB indicates that there is still insufficient water available for the water users identified in the previous notices and that diverting water where none is legally available could result in significant penalties.  Further, the SWRCB has taken the position that the court’s order is limited in scope, in that it applies only to the parties in the case and does not affect the SWRCB’s authority to enforce the Water Code and pursue enforcement actions for any unauthorized diversion of water.

Notably, less than a week after the court’s ruling, the SWRCB issued a draft Cease and Desist Order (CDO) against WSID, for its alleged unauthorized diversion of water out of Old River.  Just one day later, the SWRCB issued a draft CDO against a Trinity County property owner, directing him to immediately stop his alleged illegal diversion of water from Hayfork Creek.  Additionally, on Monday, July 20th, the SWRCB served Byron-Bethany Irrigation District with a draft administrative civil liability complaint proposing $1.5 million dollars in penalties for its alleged unauthorized diversion and use of water.  It is anticipated that each of these parties will request a hearing before the SWRCB to address/contest the allegations against them.

The SWRCB has indicated that additional enforcement actions will be issued in the coming weeks.  Subsequent alerts will follow the progress of the cases discussed above and any additional enforcement actions that are initiated.

For more information, contact Alexis K. Stevens at astevens@somachlaw.com.

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