Appellate Confirmation of State Water Board Administrative Jurisdiction to Prevent Illegal or Unreasonable Water Diversion and Use: Young, Millview, and Light

• Publication year: 2015
• Author: by Rebecca R. Akroyd and Andrew J. Ramos

Appellate Confirmation of State Water Board Administrative Jurisdiction to Prevent Illegal or Unreasonable Water Diversion and Use: Young, Millview, and Light

by Rebecca R. Akroyd^* and Andrew J. Ramos^**

INTRODUCTION

California is facing an extraordinary drought, and the impacts of water shortages are significant and widespread. Communities that depend on agriculture suffer the consequences of fewer and damaged crops, lower groundwater levels, environmental side effects, and resulting economic turmoil. Urban communities also suffer, facing great challenges in drought planning, dealing with increased costs of water supply, and responding to an urgent need to increase conservation. Some communities are now preparing for the not-too-distant day when they run out of water altogether, and others have faced that day already.

The drought means that every drop of water counts. State and federal regulators are looking for ways to alleviate the impacts from water shortages, heeding directives to take actions to improve ecosystem health that were issued prior to the current drought. One tool receiving new scrutiny is state administrative action against alleged illegal and unreasonable diversion and use of water.

Three recent water law cases—Young, Millview, and Light-discuss, define, and, some argue, develop the administrative jurisdiction of the California State Water Resources Control Board (Board) in areas in which the Board has not historically tread: the intersection of riparian and pre-1914 appropriative water rights and the California Constitution's prohibition against waste and unreasonable use of water. These cases may spur the Board to play an expanded role in fighting illegal and unreasonable diversion and use. This article discusses Young, Millview, and Light in the context of a growing judicial recognition of the Board's authority to prevent illegal and unreasonable use of California's scarce water resources.

BACKGROUND

California's dual system of water rights distinguishes between rights of "riparian" users, who possess water rights by virtue of owning land contiguous to a natural stream, and "appropriators," who hold the right to divert water for use on noncontiguous lands.¹ Appropriators are grouped into those who claim rights that were established before and after 1914.² Post-1914 appropriative water right holders are subject to the Board's permitting authority, whereas riparian users and pre-1914 appropriators are not. Historically, this distinction between appropriators meant that challenges to diversions and water use under a riparian or pre-1914 appropriative right could only be made in court, but challenges to use of a post-1914 appropriative right could also be made administratively with the Board.³ In 2002, however, the Legislature amended Water Code section 1831 to allow the Board to issue a cease and desist order to "any person" violating, or threatening to violate, the Water Code's prohibition against the unauthorized diversion or use of water, instead of just permit and license holders.⁴ In amending section 1831, the Legislature clarified that the Board may bring an enforcement action against any person threatening or committing a trespass, or an unauthorized diversion or use of water.⁵

The Board's ability to manage water use in California by preventing waste or unreasonable use of water has a history independent from the Water Code's enforcement provisions. All water use in California—whether riparian or appropriative—is limited by the "rule of reasonableness," which prohibits the waste of water or its unreasonable use.⁶ The Water Code affirmatively requires the Board to "take all appropriate actions . . . to prevent waste, unreasonable use, unreasonable method of use, or unreasonable method of diversion of water in this state," but gives the Board discretion over whether to take action "before executive, legislative, or judicial agencies."⁷

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In 2006, then-Governor Arnold Schwarzenegger signed Executive Order S-17-06, which launched the "Delta Vision" process by establishing a Blue Ribbon Task Force, a cabinet-level Delta Vision Committee, Delta Science Advisors, and a Stakeholder Coordination Group.⁸That Executive Order affirmed that "current uses and ecosystem health" in the Delta were "unsustainable over the long-term," and initiated the Delta Vision process to "develop a durable vision for sustainable management of the Delta."⁹ In October 2008, the Blue Ribbon Task Force—charged with developing a plan to implement a long-term vision for the Delta—released the Delta Vision Strategic Plan.¹⁰ The Plan included recommendations that the Board increase its investigation of water rights compliance, illegal diversions, waste, and unreasonable use.¹¹Also in 2008, the Board adopted Resolution 2008-0056 approving a Strategic Workplan for the Bay-Delta.¹² The Workplan reflected the Board's intent to investigate and initiate enforcement actions against illegal diversions.¹³The Delta Vision process, Delta Vision Strategic Plan, and the Board's Strategic Workplan for the Bay-Delta were all borne out of a focus on improving ecosystem health.

NEW DEVELOPMENTS IN THE BOARD'S ADMINISTRATIVE JURISDICTION

Young v. State Water Resources Control Board

In Young v. State Water Resources Control Board, 219 Cal.App.4th 397 (2013), the Third District Court of Appeal analyzed whether the Board had jurisdiction to issue a cease and desist order (CDO) under Water Code section 1831 for an alleged illegal diversion of water if the diverter claimed riparian or pre-1914 appropriative water rights.

The Young case should be read in the context of an increased effort by the Board to enforce against illegal diversions of water. In February 2009, the Board sent letters to a number of landowners in the Delta who asserted riparian and/or pre-1914 appropriative water rights, requesting evidence supporting their claimed water rights.¹⁴ One of these letters went to Woods Irrigation Company (Woods), an irrigation company that "diverts water from Middle River, conveys the water to customers in a service area on Middle Roberts Island, and provides drainage services to a slightly larger area on Middle Roberts Island."¹⁵ After completing an investigation, the Board issued a draft CDO that alleged unauthorized diversion of water by Woods.¹⁶

The Board held a hearing on the draft CDO in 2010. Woods provided evidence in support of claimed riparian and pre-1914 appropriative water rights held by Woods and/or its customers. Ultimately, the Board found that Woods' evidence supported diversions of up to 77.7 cubic feet per second (cfs) under riparian or pre-1914 appropriative water rights, and issued a CDO precluding Woods from diverting in excess of 77.7 cfs, unless certain conditions were met.¹⁷

Customers of Woods then sought administrative and judicial review of the Order, challenging the State Water Board's jurisdiction to issue the CDO.¹⁸ The trial court's treatment of the jurisdictional issue was minimal,¹⁹ but on appeal, the parties and the court focused primarily on the jurisdictional issue, which was treated as an issue of first impression.²⁰

While no one in Young argued that the Board has jurisdiction to require a permit for exercise of a riparian or pre-1914 appropriative right, the question posed was whether Water Code section 1831 gives the Board "jurisdiction in enforcement proceedings to determine initially whether a diverter has either the riparian or pre-1914 appropriative rights it claims."²¹

In relevant part, Water Code section 1831 provides:

(a) When the board determines that any person is violating, or threatening to violate, any requirement in subdivision (d), the board may issue an order to that person to cease and desist from that violation.
(e) This article does not authorize the board to regulate in any manner, the diversion or use of water not otherwise subject to regulation of the board under this part.²²

Focusing on the plain language of section 1831 and other relevant Water Code provisions,²³ the court concluded that "[t]he Legislature expressly vests authority in the Water Board to determine if any person is unlawfully diverting water; to determine whether the diversion and use of water is unauthorized, it is necessary to determine whether the diversion and use that the diverter claims is authorized by riparian or pre-1914 appropriative rights."²⁴ The court reasoned that the provisions in the "part" of the Water Code referenced in subdivision (e) include the authority to regulate both unappropriated water and unauthorized diversions, e.g., water claimed under a riparian right but either not covered by an existing riparian right or water being diverted in excess of a valid riparian right.²⁵

Young confirmed that in order to enforce against a threatened or actual illegal diversion or use of water, the Board must be able to determine whether "the diversion and use that the diverter claims is authorized by riparian or pre-1914 appropriative rights."²⁶ By holding that the Board may determine whether any water use is illegal, even if made by a water user claiming a riparian or pre-1914 appropriative right, it confirmed that riparians and pre-1914 appropriators are subject to administrative enforcement against diversions in excess of their rights.

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Millview v. State Water Resources Control Board

In an extension of Young, the First District Court of Appeal held that the Board has jurisdiction in CDO proceedings to determine both the validity and scope of claimed riparian and pre-1914 appropriative water rights. Millview County Water District v. State Water Resources Control Board, 229 Cal.App.4th 879 (2014).

In 2001, Millview County Water District, a water supplier in Mendocino County, purchased a claimed pre-1914 water appropriative right to divert 1,450 acre-feet annually (afa) from the Russian River.²⁷ After receiving a citizen complaint, and conducting an investigation and a hearing, the Board concluded that...