Welcome to the Coleman & Horowitt, LLP Agricultural and Environmental Law Blog. In this blog, we will focus on developments in California Agricultural and Environmental Law.

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Friday, June 12, 2015

The State Water Resources Control Board has Curtailed Diversions by Certain Pre-1914 Senior Water Rights Holders

In a move not seen since California was gripped by drought in the 1970s the California State Water Resources Control Board (Water Board) has sent notices of curtailment orders directing senior water rights holders in the Delta, San Joaquin and Sacramento watersheds to curtail water diversions.

The new curtailment orders effect senior water rights holds with Pre-1914 water rights, specifically those whose water rights have a priority date of 1903 or later.

The notices of curtailment will direct the recipients to stop diversions of water in order to protect those who have senior (older) Pre-1914 water rights. The notices have been sent to 114 rights holders (86 water rights holder in the Sacramento River watershed and 14 rights holders each in the San Joaquin River and Delta watersheds).

Senior water rights holders who violate the order could face fines of $1,000.00 for each day the holder diverts water, and $2,500.00 per acre foot of water diverted.

The Water Board will assess water availability and whether additional curtailment orders are necessary on a weekly basis.  This means that additional senior water rights holders, those who have senior water rights that predate 1903, could face curtailment orders in the future.

Pre-1914 water rights are considered sacrosanct. Given recent activity by the Water Board, and California's groundwater legislation, the legislature and governor appear to be using the drought as a stage to change the entire dynamic of the state's water rights system.

Friday, May 1, 2015

The State Water Board has Curtailed All Post-1914 Water Rights Permits, Licenses, Registrations and Certificates.

On May 1, 2015 the State Water Resources Control Board issued an immediate curtailment notice to those diverting water from the Sacramento River Watershed and Delta under a Post-1914 water right permit, license, registration or certificate.

This curtailment follows several issued in April:

The curtailment orders, while issued purportedly in accordance with state law, have issued in such a way that their purpose is to create debate about the supremacy of Pre-1914 rights.

Concurrently during April the Department of Water Resources (DWR) held listening sessions concerning the Sustainable Groundwater Management Act have yielded discussion from the public, primarily environmental activists, about groundwater sustainability agencies (GSAs) regulating agricultural uses of water through groundwater sustainability plans (GSPs) - either by decreasing extractions by blaming agriculture for water quality issues or setting tiered extraction fees based on the commodity grown. These ideas, unfortunately, are not being rebuffed by DWR as an appropriate exercise of power by GSAs.

The above combines to create great turmoil for agriculture: pitting farmers, ranchers and dairymen with junior rights against those who hold senior pre-1914 rights, and pitting all agricultural users against new local agencies that environmental activists will try to influence to further choke out agriculture.

State Water Board Uses Term 91 as the Basis for Curtailment Orders to Water Right Permit and License Holders

On April 30, 2015 the State Water Resources Control Board declared that (1) water being released from state and federal water projects is being released in the Sacramento-San Joaquin Delta Watershed (Delta Watershed) and (2) the Delta is in Balanced Condition. It then issued curtailment notices to 88 holders of post 1914 water rights permits and licenses in the Delta Watershed whose permit or license contains Term 91.

So, what is Term 91: when did it come into effect, what water right permits or licenses does it apply to, what is its purpose, and when can the State Water Resources Board issue curtailments under Term as it did on April 30th? 

On March 25, 1980 the State Water Resources Control Board adopted term No. 91. Term 91  applies to permits or licenses  obtained after August 16, 1978 that (1) authorize the diversion of water within the Delta Watershed at a rate greater than one cubic foot per second or (2) authorize the collection to storage within the Delta of more than 100 acre-feet of water per year. Its purpose is to allow for the improvement of water quality in the Delta. Term 91 prohibits, via curtailment orders, water right permit holders or licensees that contain the provision from diverting water when the amount of water being released from "the Shasta, Oroville, and Folsom reservoirs, plus the amount of water the Bureau of Reclamation is importing from the Trinity River, exceeds the amount of water the projects are exporting from the Delta plus “carriage water,” which is “the amount of additional Delta outflow required to compensate for currents created by the export pumps.” (El Dorado Irr. Dist. v. State Water Resources Control Bd. (2006) 142 Cal.App.4th 937, 951.) When such circumstances exist the water that the state and federal governments are releasing is considered their "own stored or imported water" and that its use is to meet water quality objectives or other in basin demands. (Ibid.)  

The State Water Resources Control Board consults with the U.S Bureau of Reclamation and the California Department of Water Resources to determine when to curtail water rights subject to Term 91. Curtailments under Term 91 can be issued when the following conditions exist: 
  • The Projects are releasing previously stored Supplemental Project Water to meet water quality objectives and in basin entitlements in the Delta.
  • The condition of the Delta is declared to be “Balanced” by the U.S Bureau of Reclamation and the California Department of Water Resources. The condition of the Delta is generally declared to be “Balanced” when water quality objectives and in basin entitlements are only being met because of the release of previously stored Supplemental Project Water. When there is sufficient flow through the Delta to meet water quality objectives and in basin entitlements without requiring the release of Supplemental Project Water, the condition of the Delta is declared to be “Excess.”
If you have any questions concerning Term 91, or other methods available to the State Water Resources control Board to curtail your use of water please feel free to contact me at (559) 447-5700.

The curtailment notice can be viewed here
The source data used to determine if Supplemental Project Water is being released into the Delta can be viewed here.

The source used to determine if the condition of the Delta is “Balanced” or “Excess” can be viewed here

Additional Sources: http://www.waterboards.ca.gov/board_info/agendas/2012/dec/120412_10.pdf, http://www.waterboards.ca.gov/waterrights/water_issues/programs/applications/docs/term9193.pdf

Wednesday, February 4, 2015

The State Water Resources Control Board is taking a hard look at senior water right holders.

Today the State Water Resources Control Board ("Board")issued an "Order for Additional Information In the Matter of Diversion of Water from Sacrament and San Joaquin Watershed and Delta". The order follows a May 2014 curtailment order to post-1914 appropriative water right holders in the region and emergency regulations that were adopted in July 2014. It comes in response to a complaint to the Board by the Department of Water Resources and the U.S. Bureau of Reclamation that  south and central riparian and pre-1914 diverters are illegally diverting water from the State Water Project and the Central Valley Project. Westlands Water District and the State Water Contractors presented letters to the Board in support of the complaint

The order identifies 445 different parties who the Board desires additional information from in order to determine if they have engaged in unauthorized diversions of water, despite their holding a riparian or pre-1914 appropriative water right. It requires these parties to submit information concerning diversions they made in 2014 and the right under which they made the diversion, and information for expected 2015 diversions and the right that will allow those diversions. More importantly, it requires the parties to provide documentation in support of the water rights that the parties claim to hold. Riparian water rights holders are being required to provide patent dates and patent maps, while pre-1914 appropriative rights holders must provide copies of notices, property deeds and all other information pertaining to their initial diversion of water and "continued beneficial use".

The requirement that water rights holders provide information that water they are diverting is being used for a "continued beneficial use" indicates that the Board is taking a "hard look" at water right holders whose rights are superior to other diverters. It may not just be looking to see which holders of these rights are diverting more water than they are entitled to use, it could be attempting to hinder or even eliminate their rights by invoking California's constitutional requirement that waters of the state be used for a beneficial purpose.