Regulators retreat on cutting water rights in ruling’s wake

By Debra Kahn | 07/16/2015 01:07 PM EDT

California regulators eased enforcement of their drought conservation rules yesterday in response to a successful legal challenge by water users.

At issue is the state’s method of curtailing water rights. The state denied thousands of landowners their rights to draw water from rivers and streams as the historic drought deepens (Greenwire, June 15).

The State Water Resources Control Board reissued notices to water users yesterday notifying them that streams are too low for them to continue diverting supplies, but stopping short of actually telling them to stop withdrawing water.


Water users in the Sacramento area filed a lawsuit last month against the curtailment notices, arguing the board deprived them of due process by issuing the orders without first holding a hearing to present the justification for a curtailment (Greenwire, July 13).

Sacramento Superior Court Judge Shelleyanne W.L. Chang ruled last week that the board violated users’ right to due process by ordering them to stop diverting without giving them an opportunity to respond and issued a temporary injunction against the curtailment orders.

While the decision applied only to users who filed the lawsuit, the board yesterday reissued notices to all 9,300 landowners whose water had been cut in April, May and June.

Instead of directing rights holders to stop diverting water, the notices merely tell users that the board has determined their watershed doesn’t have enough supplies for them.

"To the extent that any of the notices described above contain language that may be construed as an order requiring you to stop diversions under your affected water right, that language is hereby rescinded," the agency said in its notice.

The board still reserves the right to fine users up to $1,000 per day or $2,500 per acre-foot diverted, although it hasn’t taken any enforcement actions yet, an agency spokesman said.

"The State Water Board may initiate enforcement actions under the Water Code against any parties, including those who filed the lawsuit, if it deems them to be in violation of any provision of the Water Code, so long as the Unavailability Notices are not the basis for that action," the agency said in a fact sheet yesterday.

The board’s response to the injunction is due today, and a hearing is scheduled for July 30.