Judge rules CA Water Board violated due process in water rights case

waterOn Friday, Sacramento County Superior Court Judge Shelleyanne W. L. Chang ruled against the California State Water Resources Control Board, saying the board violated due process in curtailing water rights to a San Joaquin water district.

According to the Stockton Record, Judge Chang “granted a temporary restraining order preventing the State Water Resources Control Board from ‘taking any action’ against the West Side Irrigation District.” She wrote in her ruling that the curtailment letters “including the requirement that recipients sign a compliance certification confirming cessation of diversion, result in a taking of petitioners’ property rights without a pre-deprivation hearing.”

In addition, the 2015 curtailment letters were found to be “coercive in nature and go beyond the ‘informational’ purpose” that the board claimed.

The Associated press previously reported that the SWRCB “issued the curtailment notice on June 12 to 114 water users who hold rights dating back to 1903 and have nearly ironclad rights to take water from rivers and streams.” The last time senior water rights holders were told to stop pumping and irrigating from rivers was during a drought in the 1970s.

Stockton attorney Steve Herum, who represents a number of other water districts that also received water curtailment notices, said of the ruling, “It’s a complete victory.”

But the SWRCB issued a response to the ruling, alleging that the order “is limited to the parties in this case.”

“While the order finds fault with the language of the notice, the order states: ‘To be clear, [the Water Board and its staff] are free to exercise their statutory authority to enforce the Water Code as to any water user, including these Petitioners, if it deems them to be in violation of any provisions of the Water Code, so long as the bases for said action are not the Curtailment Letters.’

 

“Pursuant to section 1052 of the Water Code, unauthorized diversions during the drought emergency are subject to enhanced penalties of up to $1,000 per day and $2,500 per acre-foot of water diverted. Diversion of water when no water is available pursuant to a diverter’s water right constitutes an unauthorized diversion and a trespass under Water Code section 1052.  Any such enforcement action would occur only after notice and an opportunity for hearing pursuant to the Water Code.  This has been the consistent position of the State Water Board staff, and was specifically identified in the curtailment notices sent in May and June.”

Herum, however, told the Stockton Record that all water curtailment notices sent to water users are now “equally unconstitutional” under the ruling.

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