State Water Resources Control Board May Prevent Illegal Diversions Of Water, Even If Diverter Claims Riparian Or Pre-1914 Appropriative Water Right

In Young v. State Water Resources Control Board (--- Cal.App.4th ----, Cal.App. 3 Dist., August 4, 2013), a California court of appeal considered whether the State Water Resources Control Board (“Water Board”) has the authority under Water Code section 1831 to issue a cease and desist order (“CDO”) against what it has determined is an unlawful diversion of water, even if the diverter claims a riparian or pre-1914 right.  The appellate court rejected an argument that the Water Board was required to first seek a judicial determination of the claimed riparian or pre-1914 rights.

Facts

Woods Irrigation Company (“Woods”) is an irrigation company that diverts water from Middle River in the Delta for the benefit of customers in its service area on Middle Roberts Island.  In 2009, the Water Board requested Woods to provide evidence to verify the basis of right under which it was diverting water.  Following an investigation and a hearing, in early 2011 the Water Board issued a final CDO against Woods.  In the CDO, the Water Board analyzed whether Woods diverted or threatened to divert without or in excess of the asserted riparian and pre-1914 appropriative water rights.  The Water Board ultimately concluded that Woods diverted or threatened to divert in excess of the riparian and pre-1914 rights that the Water Board believed likely supported the diversions by Woods.  Accordingly, the CDO directed Woods to cease and desist from diverting more than 77.7 cubic feet per second from Middle River.

In response to the CDO, customers of Woods filed a petition for writ of mandate in San Joaquin Superior Court challenging the CDO.  The customers (the Young parties) had sought permission to participate in the administrative hearing that resulted in the CDO, but were denied their request.  In their petition, the Young parties challenged the Water Board’s jurisdiction to make findings regarding the extent of riparian or pre-1914 rights.  The Young parties also alleged due process violations stemming from the Water Board’s refusal to involve the Young parties in the administrative hearing process, but that issue was not on appeal.  

The superior court entered judgment on May 31, 2011, finding in the Young parties’ favor – “that the State Board lacked jurisdiction to determine the extent of riparian and pre-1914 appropriative water rights through the use of its limited cease and desist order authority” pursuant to Water Code section 1831.  The Water Board and the San Luis & Delta-Mendota Water Authority, a real party in interest in the case, appealed.

Decision

Water Code section 1831(a) provides that “[w]hen the board determines that any person is violating, or threatening to violate, any requirement described in subdivision (d), the board may issue an order to that person to cease and desist from that violation…”  Subdivision(d)(1) authorizes the Water Board to issue a CDO in response to a violation or threatened violation of the prohibition in Water Code section 1052 against the unauthorized diversion or use of water.  Subdivision 1831(e) further states that “[t]his article shall not authorize the board to regulate in any manner, the diversion or use of water not otherwise subject to regulation of the board under this part.”

The Young parties argued that because subdivision (e) exempts “water not otherwise subject to regulation of the board under this part,” the Water Board does not have the authority to adjudicate the validity, extent, or forfeiture of riparian or pre-1914 appropriative water rights.  Because valid riparian and pre-1914 rights are not subject to regulation of the Water Board, the Young Parties argued that a diverter can divest the Water Board of jurisdiction simply by alleging riparian or pre-1914 rights.

The appellate court rejected this argument.  The court noted provisions of the Water Code that give the Water Board permitting authority over all unappropriated water and investigative power to ascertain whether water is being diverted other than as authorized in the Water code.  (Wat. Code, §§ 1201, 1202, 1240, 1052.)  Additionally, the court identified two relevant Supreme Court decisions, Temescal Water Co. v. Dept. of Public Works (1955) 44 Cal.2d 90, and Meridian, Ltd. v. San Francisco (1939) 13 Cal.2d 424.  According to the court, “[t]hese statutes and cases provide the context in which the Legislature enacted Water Code section 1831…”

Next, the appellate court looked to the plain language of section 1831, which the court found expressly vested authority in the Water Board to determine if any person is unlawfully diverting water.  To determine whether a diversion is unauthorized, the court found it necessary to determine whether the diversion and use that the diverter claims is authorized by riparian or pre-1914 appropriative rights.  The court concluded that “issuing a CDO to enjoin unauthorized diversions does not violate section 1831, subdivision (d) because subdivision (e) does not prohibit the Water Board from exercising its authority in subdivision (d)(1) over unauthorized diversions.”

The appellate court also reversed the superior court’s award of attorney fees to the Young parties.

Topics:  Appropriation, Department of Water Resources, Riparian Rights, Water, Water Diversion, Water Rights

Published In: Civil Procedure Updates, Energy & Utilities Updates, Zoning, Planning & Land Use Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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