Key Points

• A California Court of Appeal held that the State Water Board lacks authority under Water Code, § 1052(a) to curtail valid pre-1914 appropriative water rights holders from diverting water
• This decision tracks precedent concerning the Board’s very limited power to regulate pre-1914 water rights
• But the State Water Board might still regulate pre-1914 water rights under other authorities, including drought emergency regulations

On September 12th, the Sixth District Court of Appeal held that Water Code section 1052(a) does not authorize the State Water Resources Control Board to curtail valid pre-1914 appropriative water right holders from diverting water under those rights. The State Board responded to the last drought by issuing curtailment orders in 2015, which were rooted in the State Board’s section 1052(a) authority to address unauthorized diversions. After many water service providers in the Sacramento-San Joaquin River Delta challenged those orders, the issue for the Sixth District was whether section 1052(a) authorized the State Board to curtail pre-1914 water rights.

The Court of Appeal held that section 1052(a) does not give the State Board authority to curtail pre-1914 water rights. This decision tracks precedent that the State Board generally has very limited authority to regulate pre-1914 water rights. That authority, the Court of Appeal explained, may determine whether a pre-1914 appropriative right claim is valid. Or it may determine whether the holder is exceeding the scope of the claimed right. But the authority under section 1052 does not include the power to curtail the exercise of a valid pre-1914 right.

The Court of Appeal did note, however, that the State Board may have potential authority to curtail pre-1914 water rights under other authorities, such as under the public trust doctrine and emergency regulations. In line with this ruling, the Board released a statement claiming that the Court’s decision does not impact its ongoing drought response actions, which rely primarily on emergency regulations under section 1508.5 of the Water Code.

Should you have any further questions or concerns about how these laws affect you, please contact our Water Law attorneys.