City joins districts to sue state over water limits
San Francisco, along with a handful of Central Valley irrigation districts, is suing the state for enacting drought restrictions that are keeping thousands of landowners and suppliers from drawing water from rivers and creeks.
The lawsuit, filed late last week in Fresno County Superior Court, claims that the State Water Resources Control Board — drought or no drought — does not have the authority to suspend the draws of those with the most senior claims to California’s water.
These water-rights holders include farms and many of their suppliers, as well as San Francisco. The city holds water rights on the Tuolumne River that date from between 1901
and 1911, allowing it to collect mountain runoff in reservoirs at and around Yosemite National Park and pipe it 160 miles to the Bay Area.
The orders to halt water draws came last month when state officials, after two years of punishing drought, determined that the Sacramento-San Joaquin River basin doesn’t have enough water to go around. The move, which curtails 4,500 farms, businesses, public agencies and others that divert water between Fresno and the Oregon border, represents the most drastic cuts ever under California’s water-rights system.
The lawsuit, in turn, represents a major threat to the state’s ability to manage dwindling water supplies.
Many of those hit with the curtailment orders have backup water sources or storage that’s not affected by the crackdown, including San Francisco. But some don’t, and others that have plenty of water want to preserve their ability to draw from rivers — for if and when their supplies run out.
“We’ve got a decent amount of water, certainly by comparison to other people,” said Steve Ritchie, an assistant general manager for the San Francisco Public Utilities Commission, the city’s water department. But “this drought has come upon us faster and deeper than the most recent droughts. So with curtailments, if we have a very dry year next year ... we’ll start to get a lot more nervous.”
The SFPUC provides water not only to city residents and businesses but to several other communities in the Bay Area.
The thrust of the legal challenge is that the state water board, which began regulating water draws in 1914, doesn’t have authority over water rights that predate its powers. Those with water rights dating before 1914, considered “senior” rights holders, claim that only the courts have jurisdiction.
“As a pre-1914 water-rights holder, there are legal questions about what they can and can’t do with us,” Ritchie said.
The suit also argues that the state water board hasn’t established a clear need to make cuts, nor have the cuts been implemented in a fair and legal way. The litigants say the state doesn’t have the tools to adequately measure water use, and therefore, can’t ration water appropriately.
The lawsuit was filed by the San Joaquin Tributaries Authority, which represents water suppliers that tap the rivers flowing to the San Joaquin River. The suppliers include Modesto Irrigation District, Oakdale Irrigation District, South San Joaquin Irrigation District, Turlock Irrigation District and San Francisco.
Officials with the state water board declined to discuss the suit. In an email Tuesday, agency spokesperson Jackie Carpenter commented only on the August curtailment orders, calling them necessary to address “extreme water shortages.”
The past two years have been among California’s driest. They’ve left many of the rivers and creeks in the vast Sacramento-San Joaquin River basin at record lows. The basin covers about 40% of the state.
California’s priority-rights system, which dates to the Gold Rush when miners made claims on the state’s waterways, is based largely on who first staked out the water. Under the system, when water supplies are low, those with more junior rights have to defer to those with senior claims. Surface water from rivers and creeks makes up the bulk of California’s water supply. This year, though, many suppliers are having to turn to groundwater, recycled water or desalination.
While the state water board occasionally makes cuts down the hierarchy of surface water rights, rarely have pre-1914 rights holders been curtailed. One occasion was last decade’s drought, which resulted in lawsuits similar to this year’s challenge.
In those cases, the courts partially favored senior water-rights holders, though the opinions took issue more with how the state implemented the cuts and not their merit. The issue is yet to be settled. This year, the state water board has taken a slower, more deliberate approach to curtailments, providing more notice and public hearings for water users, cognizant of past suits and hoping for a different outcome.
Water attorney and consultant Felicia Marcus, now a visiting fellow at Stanford University and a former chair of the state water board, said the state stands a good chance of prevailing this time around. She added that the stakes are high because the state needs to retain the ability to regulate water use during extraordinary droughts like the current one.
“Senior water-rights holders control roughly half of the water, and on some water courses, nearly all of the water,” Marcus said. “So, without that authority there is no there there.”
In total, 10,300 water rights, held by 4,500 parties, are being curtailed by the state.
In the Sacramento River watershed, which covers rivers and creeks north of Sacramento, water users with rights gained after the mid-1890s are being cut off. In the San Joaquin River watershed, which covers waterways south of Sacramento, all water-rights holders are being restricted. Those with land next to a waterway, with so-called riparian rights, are not being curtailed.
The extent of the cuts seeks to leave enough water in rivers and creeks for fish and other wildlife as well as for waterrights holders at the very top of the pecking order.