Suspending senior water rights in California is a new development in the state's real property law, with its practical implications being of much more interest than its legal background. The drought affects all Californians and this reform relates to many. Will it sustain the challenge?
We should start from basics. "Senior water rights" in the state of California refer to the water claims staked before 1914. The claim allows its holder to take unlimited amount of water from the applicable watersheds free of charge. A comprehensive 2010 study by the Associated Press provides details about the structure and statistics about those claims.
On June 12, 2015, the executive director of the State Water Resources Control Board ("SWCB"), issued a "notice of unavailability of water" to serve claims dated 1903-1914. More junior claims were dealt with in prior orders, last one on May 1, 2015. This current order instructs that "[e]valuations for additional curtailments of more senior rights will be made every two weeks through September."
The notice does not just reflect upon the claims, it orders those claim holders to halt all water intake or face "potential enforcement." The orders affect most, but not all, state watersheds, as the published summary of "curtailed rights" demonstrates. The SWCB maintains a list on the developing curtailment, which shows that the more and more water sources are becoming off-limits.
Interesting notes:
How does this chain of executive orders fit the 5th Amendment's taking clause, especially with the one of a lower authority (SWCB) extending its reach beyond the higher order's chartered scope, is a question most likely to be addressed soon in courts. Its Constitutional compliance is not apparent.
There are three recognized states of emergency in California: state of war emergency, state of emergency, and local emergency (Cal. Gov. Code, § 8558), and the drought fits the "state of emergency definition." Governmental actions made in relation to the state of emergency are generally immune from liability. Cal. Gov. Code, § 8655. Standing-wise, the subject order is an action squarely within these statutes.
In its substance, this order is not an eminent domain situation (I saw no compensation discussed in the orders), but rather an exercise of police power, under which the loss to the private party is not compensated. "[T]his doctrine of noncompensable loss comes into play in connection with more direct "taking" or "damaging" of property only under "emergency" conditions; i.e., when damage to private property is inflicted by government "under the pressure of public necessity and to avert impending peril." Holtz v. Superior Court of San Francisco (1970) 3 Cal.3d 296, 305, citing House v. Los Angeles Flood Control Dist. (1944) 25 Cal.2d 384, 391.
If so, the applicable standard to measure the action is what is essential or reasonably necessary to safeguard public health or safety. "If the injury is the result of legitimate governmental action reasonably taken for the public good and for no other purpose, and is reasonably necessary to serve a public purpose for the general welfare, it is a proper exercise of the police power to permit the taking or damaging of private property without compensation. If, however, the taking or damaging for the purposes of public health, safety or morals is not so essential to the general welfare or is not prompted by so great a necessity, it comes within the purview of eminent domain and cannot be justified without proper compensation to the owner." Hunter v. Adams (1960) 180 Cal.App.2d 511, 523. Government actions are measured by being reasonable under the urgent circumstances. Thousand Trails, Inc. v. California Reclamation Dist. No. 17 (2004) 124 Cal.App.4th 450.
The pivotal questions therefore seem to be these three: was the total ban of water intake by the water rights holders reasonably necessary in general? Was it satisfying the purpose requirement for public health and safety, if taking water for health and safety reasons is not exempt under the order? Was the Board's order reasonably necessary in banning the water intake in excess of the Governor's order only limiting the same? I have a feeling water right holders won't wait too long to ask the courts similar questions, and we may know the answer before the next raining season will arrive.
______________________
Your options and available strategies will depend on your case's particular facts. If you want to learn on your options, rights, and obligations in contesting or preserving your real property rights, including the water rights, make your first step toward taking control over the circumstances, and call my office at (415) 987-7000. I will be glad to assist in guiding you through the jungle. The only thing you can't afford is to stay put and uninformed. My office provides a confidential assessment of your particular scenario, free of charge, and I will share with you the results of the analysis along with my thoughts on available solutions.
We should start from basics. "Senior water rights" in the state of California refer to the water claims staked before 1914. The claim allows its holder to take unlimited amount of water from the applicable watersheds free of charge. A comprehensive 2010 study by the Associated Press provides details about the structure and statistics about those claims.
On June 12, 2015, the executive director of the State Water Resources Control Board ("SWCB"), issued a "notice of unavailability of water" to serve claims dated 1903-1914. More junior claims were dealt with in prior orders, last one on May 1, 2015. This current order instructs that "[e]valuations for additional curtailments of more senior rights will be made every two weeks through September."
The notice does not just reflect upon the claims, it orders those claim holders to halt all water intake or face "potential enforcement." The orders affect most, but not all, state watersheds, as the published summary of "curtailed rights" demonstrates. The SWCB maintains a list on the developing curtailment, which shows that the more and more water sources are becoming off-limits.
Interesting notes:
- There are no exceptions, other than the hydroelectric use with 100% return of the water back to the stream. Even for health & safety concerns an application has to be made, which will be resolved on a case by case basis.
- According to the cited-above AP study, cities of Los Angeles and San Francisco are among senior water rights holders. At least San Francisco got its claim in 1902 ... Phew! Also related to Bay Area is another senior holder, PG&E, although it is possible that their use is hydroelectric and thus exempt from this order.
How does this chain of executive orders fit the 5th Amendment's taking clause, especially with the one of a lower authority (SWCB) extending its reach beyond the higher order's chartered scope, is a question most likely to be addressed soon in courts. Its Constitutional compliance is not apparent.
There are three recognized states of emergency in California: state of war emergency, state of emergency, and local emergency (Cal. Gov. Code, § 8558), and the drought fits the "state of emergency definition." Governmental actions made in relation to the state of emergency are generally immune from liability. Cal. Gov. Code, § 8655. Standing-wise, the subject order is an action squarely within these statutes.
In its substance, this order is not an eminent domain situation (I saw no compensation discussed in the orders), but rather an exercise of police power, under which the loss to the private party is not compensated. "[T]his doctrine of noncompensable loss comes into play in connection with more direct "taking" or "damaging" of property only under "emergency" conditions; i.e., when damage to private property is inflicted by government "under the pressure of public necessity and to avert impending peril." Holtz v. Superior Court of San Francisco (1970) 3 Cal.3d 296, 305, citing House v. Los Angeles Flood Control Dist. (1944) 25 Cal.2d 384, 391.
If so, the applicable standard to measure the action is what is essential or reasonably necessary to safeguard public health or safety. "If the injury is the result of legitimate governmental action reasonably taken for the public good and for no other purpose, and is reasonably necessary to serve a public purpose for the general welfare, it is a proper exercise of the police power to permit the taking or damaging of private property without compensation. If, however, the taking or damaging for the purposes of public health, safety or morals is not so essential to the general welfare or is not prompted by so great a necessity, it comes within the purview of eminent domain and cannot be justified without proper compensation to the owner." Hunter v. Adams (1960) 180 Cal.App.2d 511, 523. Government actions are measured by being reasonable under the urgent circumstances. Thousand Trails, Inc. v. California Reclamation Dist. No. 17 (2004) 124 Cal.App.4th 450.
The pivotal questions therefore seem to be these three: was the total ban of water intake by the water rights holders reasonably necessary in general? Was it satisfying the purpose requirement for public health and safety, if taking water for health and safety reasons is not exempt under the order? Was the Board's order reasonably necessary in banning the water intake in excess of the Governor's order only limiting the same? I have a feeling water right holders won't wait too long to ask the courts similar questions, and we may know the answer before the next raining season will arrive.
______________________
Your options and available strategies will depend on your case's particular facts. If you want to learn on your options, rights, and obligations in contesting or preserving your real property rights, including the water rights, make your first step toward taking control over the circumstances, and call my office at (415) 987-7000. I will be glad to assist in guiding you through the jungle. The only thing you can't afford is to stay put and uninformed. My office provides a confidential assessment of your particular scenario, free of charge, and I will share with you the results of the analysis along with my thoughts on available solutions.
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