Superior Court Blocks State Curtailment of Older Water Rights

Monday, July 13, 2015
Judge Shelleyanne Chang

Not so fast.

That was the message Sacramento County Superior Court Judge Shelleyanne W.L. Chang had for the state’s effort to quickly rein in junior and senior rights holders’ access to surface water.

The judge told the State Water Resources Control Board that it should pause and reflect upon its decision to send letters of curtailment to thousands of older water rights holders without benefit of a hearing. The letters told rights holders that the depleted streams and rivers they drew water from were unable to sustain their continued access.

If they didn’t stop immediately, they would be subject to enforcement proceedings that could result in big fines. Judge Chang said that amounts to issuing un-appealable orders and taking someone’s property without constitutional due process of law. She sided with three water districts and a company that brought suit (pdf) and issued a temporary restraining order against the state enforcing curtailment. 

The decision is either a huge, precedent-setting blow to the state’s water conservation efforts or a requirement that language in the curtailment letters be slightly adjusted.

“It's a complete victory,” attorney Steve Herum, who represents several water districts, told the Stockton Record. He declared all curtailments “equally unconstitutional” and practically ordered pizzas for each of the estimated 9,329 water rights holders who received letters.

The State Board maintained the letters were meant to be informational, not coercive as the judge concluded. After the decision, the board indicated it would make clear that any alleged violator would be provided a hearing before any penalties were meted out. Board staff counsel David Rose told the Sacramento Bee, “I don’t think, from the board’s perspective, there is a practical impact” from the judge’s ruling.

If a wording change in the curtailment letter isn’t enough to sway the judge when she hears arguments July 30 over a more permanent injunction, the process could stretch on for awhile.

The lawsuit, brought by the West Side Irrigation District, Central Delta Water Agency, South Delta Water Agency and Woods Irrigation Company, made a broad argument that the court should validate their riparian (water’s edge) and pre-1914 rights over any other state considerations.

That didn’t happen in Judge Chang’s court. But this case is not the only legal challenge to the state over water. California’s bizarre labyrinth of water regulation has been a wonder to behold for more than a century, always the subject of tinkering by courts, lawmakers and the public.

But the drought has heated up long-simmering conflicts, and fundamental changes in water policy may be in the offing. Or a massive, perhaps historic, El Niño will drench the state this winter, cooling our ardor for crafting a more sensible policy amid climate change, in the Age of Drought.      

–Ken Broder


To Learn More:

Judge Blocks Water Curtailment Enforcement (by Alex Breitler, Stockton Record)

Water Rights Ruling a Setback for California Drought Regulators (by Dale Kasler and Ryan Sabalow, Sacramento Bee)

Fines on Water Districts Blocked in Parched CA (by Nick Cahill, Courthouse News Service)

Superior Court Judge Faults State's Process of Curtailing Water Rights (by Bettina Boxall, Los Angeles Times)

State Issues New Senior Water Rights Restrictions Even as Old Ones Are Ignored (by Ken Broder, AllGov California

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