WATER BOARD MAY ISSUE CEASE AND DESIST ORDERS AGAINST ILLEGAL DIVERSIONS BY PRE-1914 WATER RIGHTS HOLDERS AND RIPARIANS

摘要

In a significant decision of first impression, the California Court of Appeal, Third Appellate District, unanimously has upheld the power of the State Water Resources Control Board (SWRCB) to issue cease and desist orders to stop illegal diverters claiming pre-1914 appropriative water rights or riparian rights. These rights are not included within the statutory jurisdiction of the SWRCB under California's dual water rights system. The court in Young v. State Water Resources Control Board, 161 Cal. Rptr. 3d 829 (Ct. App. 2013), rejected the plaintiffs' claims that the SWRCB first had to file a civil lawsuit to adjudicate the diverter's water rights before "it can execute its statutory mandate to 'take vigorous action ... to prevent the unlawful diversion of water.'" Id. at 831 (quoting Cal. Water Code § 1825).