On June 18, 2020, the Third District Court of Appeal affirmed that the State Water Resources Control Board (“Board”) is authorized to adopt temporary emergency regulations establishing minimum flow requirements and issue temporary curtailment orders to enforce the same in order to protect threatened fish species in furtherance of its constitutional and statutory mandate to prevent the unreasonable use of water. In an apparent extension of the holding in Light v. State Water Resources Control Bd. (2014) 226 Cal. App. 4th 1463 (“Light”), such authority was held to include the direct regulation of riparian and pre-1914 appropriative water rights holders without first holding an evidentiary hearing, and the ability to adopt curtailment orders that notified the affected water rights holders that the emergency regulations were put into effect.
In January 2014, the California governor issued a declaration of state of emergency due to the severe and persistent drought conditions existing in the state. Thereafter, in May 2014 and again in March 2015, the Board adopted temporary emergency regulations setting minimum flow requirements for three creeks tributary to the Sacramento River (Deer, Mill ad Antelope Creeks ) during periods when certain protected fish species were present. The emergency regulations were intended to enable the fish to survive their yearly migration during the drought. Pursuant to the Board’s regulations, diversions that threatened to drop the flow of water in these creeks below the minimum flow requirements were declared per se a waste and unreasonable use of water and subject to curtailment by the Board. In June and October 2014, and again in April and October 2015, the Board issued curtailment orders for Deer Creek pursuant to the emergency regulations, directing all water right holders in the Deer Creek watershed to immediately cease or reduce diversions to ensure maintenance of the minimum flows set by the emergency regulations.
The Plaintiff irrigation company, Stanford Vina Ranch Company (“Stanford Vina”), has senior water rights to operate a diversion dam and ditches for agricultural use on Deer Creek. After the second curtailment order in October 2014, Stanford Vina brought suit against the Board, challenging the Board’s adoption of the emergency regulations and issuance of the curtailment orders. Stanford Vina argued, among other things, that: (1) the regulations and curtailment orders amounted to a taking of Stanford Vina’s vested water rights without a hearing; (2) the Board violated the rule of priority in issuing the regulations and curtailment orders, and (3) the Board misapplied the rule of reasonable use. Citing to the unique circumstances presented by the persistent extreme drought conditions, the trial court found the Board’s determination that allowing diversions to continue would be “unreasonable” was reasonably necessary to prevent the unreasonable use of water, and entered judgment against Stanford Vina on all causes of action. Stanford Vina appealed. The Court of Appeal affirmed.
Citing heavily to and expanding upon Light and the line of reasonable use cases before it, the Court of Appeal concluded that adoption of the regulations was within the Board’s regulatory authority in furtherance of its constitutional and statutory mandate to prevent the unreasonable use of water consistent with Water Code sections 100 and 275 and Article X, Section 2 of the California Constitution. Additionally, the Court of Appeal held that the Board’s authority to prevent the unreasonable use of water extends to regulation of all water users, including those with riparian and pre-1914 water rights. In holding that the regulations and curtailment orders did not amount to a taking of Stanford Vina’s water rights, the Court of Appeal rationalized that Stanford Vina possessed no vested right in the “unreasonable use” of water, i.e., to divert water in contravention of the emergency regulations.
Stanford Vina is an apparent expansion of the line of cases preceding and including Light
Stanford Vina is only the most recent decision in a line of cases expanding the applicability and use of the reasonable use doctrine.
For example, in People ex rel. State Water Resources Control Bd. v. Forni (1976) 54 Cal. App. 3d 743 (“Forni”), Division 2 of the First District Court of Appeal held that the ultimate decision as to what constitutes a reasonable use of water is up to the judiciary. There the Board adopted a regulation declaring the use of water for frost protection during the frost protection period an unreasonable method of use. Riparian owners subject to the regulation argued in part that the Board exceeded its authority by adopting the regulation declaring the direct diversion of water for frost protection of vineyards an unreasonable method of use under the Constitution and Water Code. Ruling in favor of the Board on this issue, the Forni court found the regulation was not in excess of the Board’s authority. Rather, the court interpreted the Board’s regulation as a mere policy statement, which it determined did not exceed the Board’s authority because the regulation still “leaves the ultimate adjudication of reasonableness to the judiciary.” The court in Forni reasoned that because the Board did not act in such a way as to suggest its regulation and policy declaration were binding on the riparian owners, and because the Board deferred the issue for judicial determination, the regulation was not in excess of the Board’s authority pursuant to the reasonable use doctrine. It is important to note that Forni suggests the Board lacks authority to make binding declarations enforcing the reasonable use doctrine through regulations as to riparian water users; however such binding determinations may be decided by the judiciary through an adjudicative process.
Another example in this line of cases, California Trout, further expanded upon the determination in Forni. (California Trout, Inc. v. State Water Resources Control Bd. (1989) 207 Cal. App. 2d 585 (“California Trout”).)Whereas Forni held the authority of final adjudication of reasonableness be left to the judiciary, the Third District Court of Appeal in California Trout further elucidated that this authority extends to the Legislature who may, pursuant to Article X, Section 2 of the California Constitution, legislate per se rules of unreasonable use. California Trout involved water right licenses issued by the Board to the City of Los Angeles and the Los Angeles Department of Water and Power (collectively “L.A. Water and Power”) validating diversion of water by means of dams from four creeks tributary to Mono Lake and Owens River for domestic use by the City of Los Angeles and for electricity generation. Plaintiffs, California Trout, Inc., National Audubon Society, and Mono Lake Committee (collectively “Plaintiffs”) filed petitions for writs of mandate commanding the Board to rescind two of these licenses, arguing that the licenses violate Fish and Game Code section 5946 (which directs that no appropriative water license may be issued in portions of Mono and Inyo Counties after September 1953 unless conditioned upon sufficient water bypass requirements for fish as required by Fish and Game Code section 5937).
In opposition to the Plaintiffs, L.A. Water and Power argued in part that if section 5946 were interpreted to require a minimum in-stream flow for fish, it would be unconstitutional by virtue of Article X, Section 2 of the California Constitution as a violation of the rule of priority. L.A. Water and Power contended that “the Legislature may not impose a categorical priority for one use of water because reasonableness of use requires comparison of contending alternative uses which is an adjudicative question that cannot be constrained by a statutory rule”. However the court held in favor of Plaintiffs, and determined that the Legislature is not precluded by Article X, Section 2 from making rules concerning what uses of water are reasonable, so long as those rules are not themselves unreasonable.
Light expanded upon the holdings in both Forni and California Trout by concluding that the Board also maintains regulatory authority to enforce Article X, Section 2. Similar to the facts in Forni, Light involved the Board’s adoption of a regulation declaring diversions for frost protection unreasonable during times when the diversions simultaneously lowered the stream level and jeopardized salmonids. Plaintiffs in Light challenged the Board’s regulation, arguing that: (1) the Board lacks the authority to enact regulations governing the unreasonable use of water; (2) the Board lacks the authority to limit the use of water by riparian and pre-1914 appropriators; and (3) the regulation violated the rule of priority. Consistent with Forni, the trial court in Light held that although the Board has regulatory authority over the unreasonable use of state waters, such authority is limited, at least as to riparian users, to pursuing enforcement actions in the courts, rather than enacting regulations to preclude unreasonable use. Division 1 of the First District Court of Appeal reversed.
Rejecting the trial court’s holding, the Light court instead held that the Board is authorized and charged with acting to prevent the unreasonable use of water regardless of the claim of right under which the water is diverted, and that the Board maintains the authority to enact regulations in furtherance of this purpose.In so holding, the Light court concluded that Forni’s construction of the Board’s authority in this regard was too narrow, and rejected Forni’s holding that the judiciary alone is vested with authority over unreasonable use. Light also provides that the Board maintains authority to regulate riparian and pre-1914 water users pursuant to the reasonable use doctrine, explaining that there is no property right in the unreasonable use of water, and thus, riparian’s vested water rights may only extend to the reasonable beneficial use of water, as determined at the time of use. As to the contention the Board’s regulation violated the rule of priority, the Light court held that the Board has the ultimate authority to allocate water in a manner inconsistent with the rule of priority, when doing so is necessary to prevent the unreasonable use of water. Even so, the Light court reasoned that the Board did not itself curtail or regulate the diversion of water, but rather delegated that task to certain local programs that took into account the factual circumstances surrounding diversions, required to take corrective actions reviewed and approved by the Board. Likewise, the use for frost protection itself was not declared an unreasonable use of water, rather the diversion for frost protection purposes was per se unreasonable where done in contravention of the local programs, which were required to respect the rule of priority.
All told, Light dispensed with the holding in Forni to the extent that it implied the Board lacks the authority to make binding regulations on riparian users to prevent the unreasonable use of water, and also Forni’s notion that the judiciary alone is vested with authority over unreasonable use. Likewise, Light expanded upon the holding in California Trout by holding that the Board, like the Legislature, has power to enact regulations governing the reasonable use of water. Thus, whereas Forni confirmed the authority of the judiciary to make reasonableness determinations pursuant to Article X, Section 2 through an adjudicative process, California Trout expanded upon Forni by holding the Legislature also has authority over unreasonable use and may articulate rules concerning reasonableness. Finally, Light expanded upon both Forni and California Trout by holding the Board may regulate riparian users pursuant to Article X, Section 2.
Stanford Vina expands the Board’s authority governing reasonable use even further
By concluding that the Board has authority under the reasonable use doctrine to determine certain uses of water (regardless of claim of right) per se unreasonable through a quasi-legislative administrative process, and to issue blanket curtailment orders for those uses of water pursuant to this process, Stanford Vina expands upon the holding in Light and the line of cases before it. Whereas in Light the court acknowledged that the curtailment and regulation of riparian and pre-1914 water users would be pursuant to local programs, and not by the Board itself, Stanford Vina confirmed that the Board may itself declare all diversions unreasonable and issue curtailment orders to cease all diversions of water without first holding an evidentiary hearing.
A copy of the Stanford Vina decision may be found here.
Contact: Janelle S.H. Krattiger
