Sep 15, 2021Irrigation districts challenge California officials who cut senior water rights
California’s reservoirs are nearly empty due to historic drought conditions. Water supplies for many farmers are curtailed or cut off entirely, leaving them to hope that Mother Nature brings winter rain and snowpack to rescue them next year.
But, until then, irrigation districts in several Central Valley farm communities are going to court, challenging the authority of state officials to curtail their senior water rights.
Lawsuits, filed in recent weeks, are attempting to overturn drought emergency water curtailments imposed last month by the State Water Resources Control Board.
The Aug. 20 board action halted water diversions for 10,300 water rights on the Sacramento-San Joaquin Delta. It effectively closed the surface water faucet for some 4,500 farms in America’s largest agricultural economy.
The board said the action was necessary due to low water levels and concern about next year’s supply.
A suit challenging the curtailment was filed in Fresno Superior Court on Sept. 2 by the San Joaquin Tributaries Authority. It represents Modesto Irrigation District, Turlock Irrigation District, Oakdale Irrigation District and South San Joaquin Irrigation District.
The authority’s districts irrigate some 325,000 acres of farmland. In addition, water pulled by the authority from the Tuolumne River serves 2.7 million Bay Area residents.
The districts – joined in the suit by the City and County of San Francisco – charge that state officials are violating water rights that predate 1914. That was the year California enacted its water rights law. It gave preference to senior water rights holders – including municipalities such as San Francisco and many irrigation districts and farms – that had established water claims before the law was on the books.
“Nothing about the board’s authority over reasonable use or illegal diversions confers a generalized jurisdiction over pre-1914 and riparian rights,” said Chris Scheuring, California Farm Bureau senior counsel. “There is still a meaningful distinction in the law between post-1914 rights and these historically senior water rights, which predate the board’s establishment in 1914.”
Another lawsuit was filed in Sacramento County Superior Court on Sept. 1 by Patterson, West Stanislaus and Banta-Carbona irrigation districts, which have water rights on the west side of the San Joaquin River. And on Sept. 7, the Merced Irrigation District filed suit over its rights to divert water from the Merced River.
“While there is little question about the current dry conditions in California, there is plenty questionable about how the state water board has gone about carrying out its response,” Merced Irrigation District General Manager John Sweigard said in a statement.
The suit in Fresno County Superior Court claims the state overreached in cutting off supplies to senior water rights holders. It charges that the board denied due process to regional water districts and potentially impacted their historic water rights by not specifying when the curtailment order ends.
“We’ve raised concerns regarding the ambiguous process for the state water board lifting curtailment orders and how the process will impact our ability to store water in Don Pedro Reservoir,” said Melissa Williams, spokeswoman for Modesto Irrigation District. “We will take all legal steps necessary to challenge the state water board’s regulation authorizing the issuance of curtailment orders and the individual curtailment orders themselves.”
Williams said the board’s order is not likely to affect the districts’ water deliveries this year. But, she said, “Curtailments could have a substantial impact on available water in 2022 and beyond, depending on when this current curtailment is lifted.”
Oakdale Irrigation District General Manager Steve Knell said the curtailment order also impacts a district’s ability to store water. “We want to put ourselves in the best position so that whatever rain comes, we can capture it, store it and make it available,” he said in a statement.
Echoing that idea, Scheuring said, “We recognize the necessity of protecting releases of stored water from illegal diversion, and the board’s enforcement in that regard should follow recognized procedure.”
Stanislaus County farmer Ron Macedo, a member of the Turlock Irrigation District board of directors, said “the hard part is the board has not given any indication as to when it might lift the curtailment orders or how they will be enforced.”
“Farmers need to plan land purchases, rental agreements, cropping patterns. They need to plan all of that and how do you do that with all the uncertainty hanging over your head? That’s what’s extremely tough,” said Macedo, who grows almonds, pumpkins and other field crops in Turlock. “We’re hoping it’s going to be a wet winter.”
Merced Irrigation District said it joined other local water agencies and senior water rights holders in sending letters to the state water board months before curtailment regulations were adopted. The letters proposed a variety of actions to address the drought. But the district said it didn’t receive a “substantive” response.
Farmers are already doing more with less, Macedo said, adding that agriculture has done a great job in adopting more efficient irrigation practices and technology. But, he said, “You still need a certain amount of water to grow the crop.”
Farmers and water leaders say that the state is in for a troubled water future unless immediate action is taken to invest and construct new water infrastructure.
Macedo said it is imperative that the state gets serious about increasing water infrastructure to store water in the wet years for use in drought years.
“It is important to be able to move water among the haves and have-nots so we can continue to farm and provide to the economy,” he said.
Despite California voters’ approval of a $7.1 billion water infrastrucure initiative in 2014, water storage projects remain stalled – with construction still many years away.
“If a year like this doesn’t convince us to get off the can in terms of infrastructure and building resiliency into the system, then I have to conclude that certain people are digging in their heels as a policy matter in a way that’s contrary to the forward interests of California,” Scheuring said. “There are identified water infrastructure projects and steps that we can take to mitigate years like this.
“All eyes are on the coming season and whether it is going to bring us back from the brink,” Scheuring said. “If not, it’s going to be a really tough time next year.”
– Christine Souza, California Farm Bureau Federation