California Court: Curtailment Notices Violate Rights

By Carolyn Whetzel

July 13 — A California court has blocked state water officials from enforcing notices directing four agricultural water districts to halt diversions from rivers and streams.

Because the curtailment notices are “coercive in nature” and issued without formal administrative hearings, they violate the agencies' constitutional due process rights, the Sacramento Superior Court said in a July 10 temporary restraining order.

The decision and injunction come in one of several legal actions challenging the notices the State Water Resources Control Board sent to junior, and more recently some senior water rights holders, to manage scarce surface water during California's fourth year of drought.

Most of the actions include claims that the notices violate water rights holders' due process rights.

The West Side Irrigation District, Central Delta Water Agency, South Delta Water Agency and Woods Irrigation District filed the petition for writ of mandate in late June.

Each of the water board's curtailment notices include the same language that the Sacramento Superior Court determined violate the constitution's due process clause, Steven Herum of Herum Crabtree Suntag in Stockton, Calif., who represents West Side Irrigation, told Bloomberg BNA July 13.

A July 30 hearing is scheduled to consider arguments for a preliminary injunction, Herum said.

The court rejected the SWRCB's claims that the curtailment notices are “informational” form letters and not enforceable on their own.

Notices Seek Halt to Diversions 

In the letters, the state requires recipients to immediately stop diverting water, the court said. Also, the letters require recipients to complete an online form within seven days to document receipt of the notices.

“Nowhere in this language do the Curtailment Letters assert that Petitioners are free to ignore the directive that they cease diverting water or that it is merely a suggestion,” the court said. “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 violation of Petitioners' Due Process Rights.”

In 2014, the water board issued curtailment notices, but they were never enforced.

Many water rights holders, both this year and last year, have objected to the curtailment notices, arguing that administrative hearings were required and in some cases, that the state lacks authority to halt diversions.

Individual Hearings Required 

Individual hearings are required to determine the availability of water, Herum said.

“Forcing the Board to undertake thousands of fact-specific, formal administrative hearings would likely swamp the Board's limited staff and fiscal resources,” Richard Frank, a University of California, Davis, law professor, said in a July 12 blog posting. “More importantly, it would defer—and quite possibly prevent altogether—the Board from taking the regulatory steps necessary to respond effectively to California's terrible drought and resulting water shortages.”

In a July 10 written statement, the SWRCB said it is reviewing the order, which “only concerns the specific form of notice letter sent in May and June.”

The court order, however, makes it clear that the water board is free to exercise its statutory authority to enforce state water code as to any water user, including the petitioners, if it finds them to be in violation of the law.

To contact the reporter on this story: Carolyn Whetzel in Los Angeles at cwhetzel@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com