State Water Board Lacks Power To Curtail Pre-1914 Water Rights Under Water Code, § 1052(a)

Key Points

• A California Court of Appeal held that the State Water Board lacks authority under Water Code, § 1052(a) to curtail valid pre-1914 appropriative water rights holders from diverting water
• This decision tracks precedent concerning the Board's very limited power to regulate pre-1914 water rights
• But the State Water Board might still regulate pre-1914 water rights under other authorities, including drought emergency regulations

On September 12th, the Sixth District Court of Appeal held that Water Code section 1052(a) does not authorize the State Water Resources Control Board to curtail valid pre-1914 appropriative water right holders from diverting water under those rights. The State Board responded to the last drought by issuing curtailment orders in 2015, which were rooted in the State Board's section 1052(a) authority to address unauthorized diversions. After many water service providers in the Sacramento-San Joaquin River Delta challenged those