Old­est claims to wa­ter fac­ing a test

Law­suits in­volv­ing pre- 1914 rights il­lus­trate dif­fi­culty of al­ter­ing state’s sys­tem.

Los Angeles Times - - FRONT PAGE - By Bet­tina Box­all

The law­suits hit the courts within days of the state mail­ing no­tices to some Cen­tral Val­ley ir­ri­ga­tion dis­tricts: They were to stop di­vert­ing from rivers and streams be­cause there wasn’t enough wa­ter to go around.

Un­sur­pris­ing as the move may be in this fourth year of drought, to the dis­tricts, the no­tices amounted to an as­sault on wa­ter rights they have held for more than a cen­tury.

“This is an at­tempted wa­ter grab,” said Steve Knell, gen­eral man­ager of the Oak­dale Ir­ri­ga­tion Dis­trict, one of sev­eral San Joaquin Val­ley agen­cies su­ing the state to block cur­tail­ments. “It is a power move and we will fight tooth and nail to make sure that this doesn’t hap­pen.”

The drought has high­lighted the ar­cane work­ings of Cal­i­for­nia’s wa­ter rights sys­tem, one that re­wards those who got here first and un­der­pins agri­cul­ture’s po­si­tion as the state’s dom­i­nant wa­ter user.

The ir­ri­ga­tors’ rush to court shows how deeply en­trenched the sys­tem is — and how any at­tempt to sub­stan­tially re­make it would en­counter a le­gal and po­lit­i­cal minefield.

In Cal­i­for­nia and much of the West, most rights to sur­face wa­ter are based on when f lows were f irst di­verted and used, a pri­or­ity

sys­tem known as “f irst in time, f irst in right.” The most se­nior rights pre­date 1914, when the state started to is­sue di­ver­sion per­mits. In times of drought, those with ju­nior rights are cut off f irst to leave wa­ter for more se­nior di­vert­ers.

This year and last, the State Wa­ter Re­sources Con­trol Board told thou­sands of ju­nior rights hold­ers in the Cen­tral Val­ley to stop draw­ing wa­ter from rivers and streams. Then on June 12, reg­u­la­tors reached fur­ther back, send­ing cur­tail­ment no­tices to more than 100 dis­tricts and grow­ers with rights dat­ing to 1903.

On Fri­day, it is­sued ad­di­tional or­ders cur­tail­ing four of San Fran­cisco’s early 1900s rights as well as oth­ers that date to the mid- 1800s. More are ex­pected as f lows con­tinue to de­cline this sum­mer.

Reg­u­la­tors had halted se­nior di­ver­sions once be­fore, in the se­vere 1976- 1977 drought. But it is un­clear how widely those cur­tail­ments were en­forced or whether any le­gal chal­lenges were filed.

This time, ir­ri­ga­tion dis­tricts lost no time chal­leng­ing the state. They have al­ready f iled four sep­a­rate law­suits with mul­ti­ple claims.

Chief among their ar­gu­ments is that be­cause Cal­i­for­nia didn’t start ad­min­is­ter­ing wa­ter rights un­til 1914, the state has no ju­ris­dic­tion over pre- 1914 rights. It is up to the se­nior rights hold­ers them­selves to en­force the rights’ peck­ing or­der, the ir­ri­ga­tors say, and the old­est dis­tricts have not com­plained that oth­ers are tak­ing their wa­ter.

More­over, the dis­tricts say the state hasn’t fully en­forced this year’s ju­nior cur­tail­ments: The state board re­vealed last week that com­pli­ance forms had been filed for about a third of the no­tices is­sued this year, the vast ma­jor­ity of which deal with ju­nior rights.

“The state … is com­ing in try­ing to reg­u­late peo­ple who can­not be reg­u­lated for the ben­e­fit of peo­ple who don’t want to be reg­u­lated,” said at­tor­ney Steve Herum, who filed one of the law­suits on be­half of the Banta- Car­bona Ir­ri­ga­tion Dis­trict.

Fed­eral and state agen­cies have in re­cent decades re­stricted se­nior di­ver­sions for en­vi­ron­men­tal rea­sons: to pro­tect im­per­iled fish and main­tain wa­ter qual­ity. But in many re­spects, se­nior di­vert­ers have been left alone. The state board doesn’t even know how much wa­ter many of them are tak­ing from Cal­i­for­nia’s rivers and streams.

Although re­port­ing re­quire­ments have been on the books since 1966 and were beefed up by the Leg­is­la­ture in 2009, they have been largely ig­nored. Ac­cord­ing to the state board, a ma­jor­ity of se­nior rights di­ver­sions aren’t be­ing mea­sured and re­ported, a fact that prompted law­mak­ers this month to again tighten the fil­ing reg­u­la­tions.

“Wa­ter- use data in Cal­i­for­nia is a huge prob­lem,” said at­tor­ney Eric Garner, an ad­junct pro­fes­sor of wa­ter law at USC. “You can­not man­age a re­source with­out data.”

The lack of good di­ver­sion in­for­ma­tion raises the ques­tion of how the state board can de­ter­mine what rights to cur­tail and when. “We know well enough from the re­ports we get and from other es­ti­mates avail­able,” said An­drew Sawyer, the state board’s as­sis­tant chief coun­sel. “We def­i­nitely could use bet­ter data.”

Sawyer called the law­suits pre­ma­ture, be­cause the cur­tail­ments are tech­ni­cally no­tices, not or­ders. But if the dis­tricts con­tinue to with­draw wa­ter, the board could is­sue en­force­ment or­ders, sub­ject­ing di­vert­ers to steep f ines and even court pros­e­cu­tion.

“This is about di­vert­ing when there’s no wa­ter avail­able un­der your wa­ter right pri­or­ity,” Sawyer said. “What the wa­ter board is try­ing to do is im­ple­ment the pri­or­ity sys­tem.”

He cited three re­cent court cases, un­re­lated to the drought, in which di­vert­ers chal­lenged the board’s over­sight of pre- 1914 rights, as well as ri­par­ian rights, un­der which landown­ers can pump sup­plies from streams and rivers f low­ing by their prop­erty. “The wa­ter board won all three,” Sawyer said.

Although some North­ern Cal­i­for­nia cities have se­nior rights, ir­ri­ga­tion dis­tricts and grow­ers hold far more. That mis­match of wa­ter and pop­u­la­tion has led some to sug­gest it is time to re­vamp a rights sys­tem that dates to the Gold Rush. They point to Aus­tralia, which re­cently over­hauled its wa­ter rights af­ter a dev­as­tat­ing drought.

But le­gal ex­perts don’t see any rad­i­cal changes on the hori­zon.

“I don’t think the wa­ter rights sys­tem is go­ing to be blown up this year or any time soon,” said Holly Dore­mus, a UC Berke­ley law pro­fes­sor of en­vi­ron­men­tal reg­u­la­tion.

“I’ve al­ways thought the peo­ple who say, ‘ Let’s just be­come Aus­tralia’ — that’s in­cred­i­bly naive,” she said. “Be­cause it would re­quire ex­tra­or­di­nary po­lit­i­cal changes and be­cause they didn’t have the prop­erty rights pro­tec­tion that we do. It would be such a mess in terms of tak­ings claims.”

Still, mount­ing pres­sure on Cal­i­for­nia’s wa­ter sup­ply will in­evitably turn more at­ten­tion to how and by whom wa­ter is used in the na­tion’s most pop­u­lous state.

“No wa­ter right is set in stone,” Garner said. “I think that all wa­ter rights and all wa­ter users are go­ing to be get­ting greater scru­tiny.”

The most likely ve­hi­cle for that scru­tiny is Ar­ti­cle X, Sec­tion 2 of the Cal­i­for­nia Con­sti­tu­tion, a core prin­ci­ple of state wa­ter law that says ev­ery wa­ter use must be rea­son­able and ben­e­fi­cial. The state Supreme Court has ruled that what is con­sid­ered ben­e­fi­cial can change with con­di­tions.

Cit­ing that pro­vi­sion, the state board this month ap­proved an emer­gency drought reg­u­la­tion that in­cludes a ban on wa­ter­ing lawns in the wa­ter­sheds of four creeks that feed into North­ern Cal­i­for­nia’s Rus­sian River. The pro­hi­bi­tion is in­tended to re­duce wa­ter use — and thus di­ver­sions and well with­drawals — that is di­min­ish­ing stream f lows cru­cial to the sur­vival of en­dan­gered Cen­tral Cal­i­for­nia Coast coho salmon and steel­head trout.

The board “is start­ing to say cer­tain kinds of uses are un­ac­cept­able, even if you hold se­nior rights, at least un­der dry con­di­tions,” Dore­mus said. “I think ev­ery time the board says these spe­cific things are not rea­son­able uses of wa­ter, they are waste — I think … they be­come more likely to do it again,” she said.

‘ The state … is com­ing in try­ing to reg­u­late peo­ple who can­not be reg­u­lated for the ben­e­fit of peo­ple who don’t want to be reg­u­lated.’ — Steve Herum, at­tor­ney for the Banta- Car­bona Ir­ri­ga­tion Dis­trict

Rich Pe­dron­celli As­so­ci­ated Press

I N STOCK­TON, wa­ter pipes sit along a dried ir­ri­ga­tion canal. On June 12, the state wa­ter board sent cur­tail­ment no­tices to more than 100 dis­tricts and grow­ers with wa­ter rights dat­ing to 1903, prompt­ing four law­suits.

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