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State Water Resources Control Board Convenes Hearing on Cease and Desist Order Regarding the Validity of Pre-1914 and Riparian Water Rights in the Delta May 11, 2010 by Brian D. Poulsen bpoulsen@somachlaw.com |
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Introduction On May 5, 2010, the State Water Resources Control Board (“State Water Board” or “Board”) began formal enforcement proceedings to determine the validity of pre-1914 and riparian water rights claimed by several landowners in the Sacramento-San Joaquin Delta (“Delta”). The Central Delta Water Agency and South Delta Water Agency filed suit against the State Water Board to prevent the Board from engaging in such enforcement proceedings, arguing that the State Water Board lacks authority to determine the validity of pre-1914 and riparian rights in enforcement proceedings. Ultimately, those efforts failed. The State Water Board’s decision could have significant precedential effects. Background In early 2009, the State Water Board requested that several property owners in the Delta submit evidence establishing their riparian and pre-1914 water rights. The State Water Board alleged that the properties at issue had no continuity to a surface stream, negating such properties’ claims as riparian, and no evidence of perfected pre-1914 rights or continuous beneficial use of water since 1914. On December 14, 2009, after the subject property owners responded to the State Water Board’s request by submitting evidence to substantiate their claimed water rights, the State Water Board issued a draft cease and desist order (“CDO”) alleging violations of the Water Code for unauthorized appropriation of water, and set a hearing date for May 5, 2010. On April 22, 2010, the Central Delta Water Agency, South Delta Water Agency, and the property owners subject to the CDO (collectively referred to as “Delta Interests”) filed a petition for writ of prohibition and complaint for declaratory relief against the State Water Board. (See Central Delta Water Agency, et al. v. State Water Resources Control Bd. (Super. Ct. Sacramento County, 2010, No. 34-2010-80000520).) The petition sought to prohibit the State Water Board from carrying out the CDO enforcement proceedings, alleging that the State Water Board lacks authority to make determinations regarding the validity of riparian and pre-1914 water rights in such proceedings. On May 4, 2010, a Sacramento Superior Court judge declined to issue the writ, allowing the proceedings to move forward. The Judge ruled that the Delta petitioners would have an opportunity to challenge the State Water Board’s determination if such determination ultimately results in harm to the Delta petitioners, but at this point, the Court concluded that petitioners have suffered no such harm. On May 5, 2010, the State Water Board commenced its hearing on the CDOs, hearing testimony and taking evidence pertaining to whether the Delta property owners are legally using water under valid pre-1914 and riparian water rights. Ultimately, the State Water Board will decide whether or not to adopt the draft CDOs. Analysis The Delta Interests contend that the State Water Board lacks authority to determine the validity of pre-1914 and riparian water rights in a CDO proceeding. The State Water Board issues CDOs pursuant to its authority under California Water Code section 1831. That section provides: “The board may issue a cease and desist order in response to a violation or threatened violation of ... [t]he prohibition set forth in Section 1052 against the unauthorized diversion or use of water subject to this division.” Section 1052 provides: “The diversion or use of water subject to this division other than as authorized in this division is a trespass.” The “division” which both sections reference is Division 2 of the Water Code, which sets forth the State Water Board’s authority to regulate the post-1914 appropriative surface water rights. The Delta Interests assert that because both sections 1831 and 1052 apply only to water subject to Division 2 of the Water Code, the Board lacks authority to determine the validity of their pre-1914 appropriative and riparian rights in a CDO proceeding. Conversely, the State Water Board staff urges that, notwithstanding its lack of authority generally over riparian and pre-1914 water rights, it has the duty to investigate the use of water, regardless of the type of right under which that water is claimed, to ensure that such water is being appropriated and applied in conformance with the laws of the State. (See Wat. Code, § 1051.) Such investigatory power, it argues, along with its duty to identify and administer unnapproprated waters, gives the State Water Board the authority to bring the current CDO enforcement proceeding against the Delta Interests. Conclusion and Implications The State Water Board’s hearing is likely to last several days, if not weeks. Ultimately, the State Water Board will issue a decision whether or not to adopt the CDO. If the Board adopts the CDO, the Delta Interests will almost certainly file suit once again seeking judicial review of the decision and to stay enforcement of the CDO. Importantly, a decision to adopt the CDO against the Delta Interests and assert jurisdiction over the determination of the validity of riparian and pre-1914 water rights through enforcement proceedings could have significant impacts statewide. Such a decision could bolster, and be a signal of, any intentions the State Water Board may have to increase enforcement of unauthorized water diversions, including claimed riparian and pre-1914 water rights. For more information, please contact Brian Poulsen at bpoulsen@somachlaw.com. Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. 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