6TH CIRCUIT DECISION CALLS INTO QUESTION SWRCB JURISDICTION OVER “SENIOR WATER RIGHTS”

With California in its third year of a historic drought, the 6^th Appellate District Court has ruled that the State Water Resources Control Board (SWRCB) lacks the power to interfere with the ability of “senior” water rights holders to divert water from California’s rivers and streams. Commentators are calling this a major “defeat” for the SWRCB to the degree to which it calls into question the state agency’s legal authority to control diversions by farms and cities.

The case stems from orders imposed by the state board in the last drought (2105) when it halted farms and cities throughout the Central Valley from taking water from the Sacramento and San Joaquin rivers, prompting a group of farm-irrigation districts centered in and around the Sacramento Delta to file the lawsuit.

Earlier this year the board ordered roughly 4,500 farms, cities, and other entities to stop taking water out of the Sacramento and San Joaquin rivers, the combined volume of which provides roughly 65% of the state’s drinking water. The orders included senior rights holders such as the city of San Francisco and the Modesto and Turlock irrigation districts, all of which pull water from the Tuolumne River.

The relevance for golf is this. The legal authority to curtail farms and cities’ ability to pull water from rivers and streams is the same legal authority that SWRCB exercised with impunity during the 2014-2016 drought by placing specific conservation requirements on the state’s 450 + water providers. Many will remember just how confounding some of those conservation mandates back in 2014-2016 were – no rational relationship between assigned conservation target and supply – unnecessarily harsh in some areas and utterly inadequate in others.

What does it all mean? It doesn’t necessarily affect the state board’s ability to govern water supplies during the current drought, because the 35-page decision did suggest that the board could exercise such authority over senior rights holders by using the emergency powers of the Governor’s Office. [See SWRCB statement below]

Of course, this is new law; worse, it’s about water law, one of the most confounding areas of law in the Southwest. And that injects a heavy dose of uncertainty into an area that many thought certain.

As one can discern from the statement put out by the Board in response to the 6^th Circuit ruling, the SWRCB recognizes the implications of the decision on its continuing ability to be the Governor’s chief enforcement arm, notwithstanding the ruling’s allowance for an “emergency declaration” exception. It’s safe to conclude they’re downright miffed. Here is that statement:
“Water scarcity is one of the most important challenges facing Californians. Ensuring that water districts and others divert and use water consistent with the state’s water right priority system is critical to protecting public health and the delivery system for farms, communities, and the environment.

The Sixth District Court of Appeal’s Sept. 12 decision takes a narrow view of the State Water Resources Control Board’s customary enforcement authorities. In doing so, it shields the most senior water right holders (those with appropriative rights developed before 1914) from certain enforcement actions.

Importantly, the court’s decision does not impact the State Water Board’s ongoing drought response actions, including curtailments of senior water rights, which rely on drought emergency regulations. Likewise, it does not impact the board’s authority to take actions against illegal diversions, nor does it preclude the board from taking enforcement measures to protect water released from storage, such as the State Water Project or Central Valley Project.

During the current water crisis, the board has primarily relied on its emergency regulation authority — enhanced by the Legislature in 2014 — and will continue to do so amid increasing threats to the state’s water supply.”

Mark Twain was on to something when he wrote, “whisky is for drinking; water is for fighting.”