California Appellate Court Upholds Water Board’s Broad Drought Response Authority
Court of Appeal Rejects Water Users’ Legal Challenge to Board’s Emergency Regulations, Temporary Curtailment Orders
California’s Court of Appeal for the Third Appellate District recently upheld the State Water Resources Control Board’s temporary emergency drought response regulations–enacted in 2014-15–in addition to related curtailment orders the Board issued to specific water users to implement those regulations. In doing so, the Water Board rejected a legal challenge agricultural water users brought against the Board looking for to raise private water rights over other interests–like protection of environmental values–the Board is obligated under California law to think about in its water rights decisions.
The Court of Appeal’s decision in Stanford Vina Ranch Irrigation Company v. State of California represents a crucial vindication of the Water Board’s broad authority to take emergency motion limiting the exercise of personal water rights when compelling and urgent circumstances reminiscent of severe drought require.
The Stanford Vina litigation arose out of California’s 2011-2017 drought, probably the most severe in recorded state history. Starting in 2014, then-Governor Jerry Brown issued several declarations of state emergency in response to the protracted drought conditions in California. Brown noted in those declarations that “animals and plants that depend on California’s rivers, including many species at risk of extinction, will probably be threatened” by the “significantly reduced surface river flows within the state’s river systems.” He specifically directed the Water Board to notify California water rights holders of the necessity to scale back their water diversions. The state Legislature similarly enacted latest laws in 2014 to facilitate the Board’s adoption of emergency regulations to handle the drought.
The Water Board responded to those directives by taking two administrative actions that led on to the Stanford Vina litigation. First, the Board adopted emergency regulations establishing minimum in-stream flow requirements for several Sacramento River tributaries within the northern Sacramento Valley including Deer Creek. It did so on the urging of federal and state wildlife officials, who warned that unrestricted water diversions from those creeks within the midst of the drought would endanger migratory salmon and steelhead trout that inhabit those tributaries and are listed under each the federal and California Endangered Species Acts. Declaring that unrestricted diversion of water from the creeks could be “unreasonable” under Article X, section 2 of the California Structure, the Board’s emergency regulations set minimum flow standards for those waterways to guard the survival of the fish that rely upon them.
Second, the Board implemented those regulations by adopting “curtailment orders” temporarily limiting individual water rights holders’ diversion of water from the affected creeks.
Two Sacramento Valley irrigation firms whose owners hold riparian water rights to certainly one of the affected waterways sued the Board to challenge each the emergency regulations and the curtailment orders restricting their water diversions. The businesses argued that the Board couldn’t adopt the regulations mandating minimum in-stream flows without first convening lengthy evidentiary hearings to evaluate their need and propriety. Additionally they contended that the Board’s regulations and curtailment orders constituted an unconstitutional “regulatory taking” of the businesses’ vested rights for “fishery enhancement purposes” and that the Board was required to pay them monetary compensation.
The Court of Appeal rejected each arguments in a unanimous opinion authored by Justice Andrea Hoch. The court concluded that:
[T]he Board possesses broad authority to manage the unreasonable use of water on this state by various means, including the adoption of regulations establishing minimum flow requirements protecting the migration of threatened fish species during drought conditions and declaring diversions of water unreasonable where such diversions would threaten to cause the flow of water within the creeks in query to drop below required levels.
The justices similarly concluded that the businesses’ regulatory takings argument was without merit. Citing the California Structure’s proscription of unreasonable use of water, the court held that the businesses don’t have any vested right to divert water in contravention of the Board’s emergency regulations. Specifically, their unfettered diversion of water within the face of unprecedented drought conditions is patently unreasonable, in violation of the California Structure.
In reaching this conclusion, the Court of Appeal also rejected the water users’ claim that Article X, section 2’s “reasonable use” mandate doesn’t apply to California’s riparian water rights holders, or to state appropriative water rights claimants whose rights were created before California created a statewide permit system in 1914. The Stanford Vina court based that holding on plenty of earlier California water rights decisions–most prominently Light v. State Water Resources Control Board, a 2014 appellate ruling that I profiled in an earlier Legal Planet post.
The recent Stanford Vina decision is a critically-important judicial validation of the State Water Resources Control Board’s broad authority to regulate private water rights within the face of drought conditions and similar emergencies. The Court of Appeal’s reliance on the constitutional rule that all water use have to be reasonable builds on past California water rights decisions. The court recognized that water uses that are reasonable in “normal” water years will be patently unreasonable in times of drought and water scarcity.
Stanford Vina vindicates the regulatory decisions the State Water Resources Control Board made within the face of probably the most severe drought in California history. The Court of Appeal properly notes in its opinion that the role of the Board has steadily evolved from “the narrow role of deciding priorities between competing appropriators to the charge of comprehensive planning and allocation of waters.” And the court’ opinion makes plain that consideration of environmental values, ecosystem protection and preservation of threatened and endangered species are all proper components of that planning and allocation process.
Finally, scientists warn that California and your entire American Southwest are prone to experience more frequent and severe droughts in the longer term in consequence of climate change. The Stanford Vina decision will help insure that the State Water Resources Control Board has the regulatory tools and legal authority needed to confront that looming challenge.
