To Curtail Or Not To Curtail…That Is the Question
On June 12, the State Water Board issued a notice of “unavailability of water” and the “need for immediate curtailment” from various water users holding pre-1914 water rights. Less than two weeks later on June 23, lawyers for the State Water Board reportedly stated in court this curtailment notice is advisory only, which would seem to mean the notice is not enforceable.
Pre-1914 water rights (a special type of appropriative right) are often thought to be safe from regulation, at least in terms of the water right not being subject to reduction. The rationale stems from a: (i) procedural issue of whether the State Water Board has jurisdiction to regulate a pre-1914 water right, and, (ii) substantive issue of the classic, appropriative right principle of first in time is first in right. Pre-1914 water right holders in particular are very senior holders and thus thought to be far less likely to be subject to reduction or curtailment, especially if more junior water right holders have not been curtailed first. Though the State Water Board issued other curtailment notices in the past couple of months, the June 12 notice was directed specifically to those with pre-1914 rights or claims from 1903 to 1914 in the Sacramento-San Joaquin watersheds and Delta. Less than one week later on June 18, Banta-Carbona Irrigation District filed a petition for writ of mandate in San Joaquin County Superior Court, with a motion to stay set for argument yesterday. Reports indicate the District’s motion to stay the curtailment notice was not ruled upon, but instead the Court granted the State’s request to remove the case to a less partial county yet to be identified, and during this hearing, the State’s lawyers reported said the notice is advisory.
Unanswered questions are whether the curtailment notice is enforceable and whether the State Water Board will seek to enforce the notice. Meanwhile, growers, districts, and other water-right holders (and many others reliant on water-right holders) are left with a short menu of options (to comply or not to comply) but bearing tremendous consequences. Dire economic circumstances may result from curtailing by way of diminished crops, vineyards, and in many other ways, or, not curtailing may result in hefty fines if the notice or some other State Water Board efforts to curtail are successful in court.
It certainly will be interesting to see how the reportedly advisory nature of the notice will impact the case, as well as similar lawsuits and future State Water Board decisions. While the water users might have a short menu of options, so too does the State Water Board when it seeks to curtail or not to curtail based on the existing notice or perhaps issuing a new notice with the opportunity afforded to water right holders for administrative hearings and presentation of evidence.