Light v. State Water Resources Control Board
As California struggles through one of the state’s most severe droughts on record, the focus on all types of water use in the state is intensifying. Generally, when supplies are insufficient to meet the needs of all users, allocations are determined in accordance with the rule of priority, with senior right holders able to satisfy their needs before those more junior. However, a decision has just been issued by a California appellate court holding that the State Water Resources Control Board (the “Water Board”) has the inherent power to regulate and curtail use even by senior water rights holders who are using water for a recognized beneficial use, at least when wildlife habitat is threatened.
On June 16, 2014, in Light v. State Water Resources Control Board (2014) Daily Journal DAR 7658 (“Light”), the court upheld a regulation adopted by the Water Board mandating the protection of juvenile salmon, which will likely require a reduction in water diversion regardless of the priority of the user’s right. Reversing the trial court, which had struck down the regulation, the court of appeal upheld the Water Board’s authority to weigh competing beneficial uses under the public trust doctrine, in this case preferring the protection of wildlife habitat over the commercial use of water by riparian and senior appropriators to protect their crops against frost, and to impose regulations on those senior users. Though the Light case cites longstanding precedent as to the Water Board’s general authority with respect to the reasonableness of water use, its reliance on the public trust doctrine may lead some to try to expand the use of that doctrine in other situations as a basis for permitting the Water Board to favor one water use over others regardless of seniority, by declaring such other uses to be unreasonable in a given circumstance. The case, however, may be limited by its unusual facts, and is still subject to potential review by the California Supreme Court.
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Source: Allen Matkins Leck Gamble Mallory & Natsis LLP