Court Battles Loom Over California’s Senior Water Rights
June 15, 2015
Partner David Aladjem is quoted in a KQED article regarding the response to the official order notifiying "senior" water rights holders to stop pumping water from streams and rivers.
See the full article below or view it online at KQED
By Lauren Sommer for KQED
Several water districts plan to challenge the state's authority to cut water use during the drought. (Florence Low/California Dept. of Water Resources)
Now that California officials have ordered water cutbacks for some of the oldest and most protected water rights holders in the state, we're about to see if those orders will stick.
In a historic move, more than 100 “senior” water rights holders have been notified that they must stop pumping water from streams and rivers.
The orders are expected to launch a flurry of lawsuits, with water right holders challenging the state’s fundamental authority to cut off senior rights. Court rulings could dramatically alter how water rights are handled in the state.
“This is our water,” says Steve Knell, general manager of Oakdale Irrigation District, an agricultural district that had its water rights curtailed. “We believe firmly in that fact and we are very vested in protecting that right.”
Water Pecking Order
Water is doled out in California based on how long ago it was claimed, with the earliest rights going back to the Gold Rush. In the pecking order, newer “junior” water rights are the first to be cut back when water supplies get low, so senior rights holders can continue to get water deliveries. Almost 9,000 junior water rights holders have already been ordered to stop using water this year.
But with a record-low snowpack and worsening drought conditions, the State Water Resources Control Board is now cutting back older rights, going back to 1903. “We’re now at a point that the demand in our key river systems is outstripping supply,” says Caren Trgovcich, State Water Board Chief Deputy Director.
The order affects 276 rights held by individuals and several agricultural water districts, amounting to 1.2 million acre-feet of water. Violators could face fines of $1,000 a day and $2,500 for each unauthorized acre-foot of water they draw.
“There are some that have no alternative supplies and will have to stop irrigating crops,” says Tom Howard, executive director of the State Water Resources Control Board. “There are others that have stored water or have wells that they can fall back on. It’s going to be a different story for each one and a struggle for all of them.”
Major Legal Question
Senior water rights have largely been considered untouchable in California. They’ve only been cut off once before, during the 1976-77 drought.
“If you have a very senior right, you could very reasonably conclude that you don’t have to worry too much about droughts because you’re so senior that you’re not going to get cut off,” says water rights attorney David Aladjem. “And this is the exception that proves the rule.”
California created the water board to oversee water rights in 1913 and began issuing permits for water claims. There’s even a large bank safe in Sacramento that holds all the permits. Earlier claims, going back to the Gold Rush, are considered “pre-1914 rights” and don’t have permits from the state.
Those rights holders plan to challenge the state’s authority to regulate them.
“Water right holders were here before the state exerted any authority over water,” says Oakdale Irrigation District's Knell. “Most of our water rights go back to the mid-1800s. So the state having authority over something that we developed long before the state got into this business is the legal question we will be asking a judge.”
Five water districts, including Oakdale, Merced and Modesto Irrigation Districts are filing for a stay to halt the curtailment orders. Others within the Sacramento-San Joaquin Delta are also expected to bring legal action.
“It would be a very important case in water law,” says Aladjem. “The question here is: what is the authority of the water board to enforce that priority system as opposed to the authority of the courts to enforce it? We don’t have a definitive decision from the courts as to the authority.”
At a hearing in May, the state water board heard testimony from several water attorneys who warned lawsuits would follow in quick order.
“It’s not equitable, it’s not legal and it will be challenged,” said attorney Jeanne Zolezzi, representing several water districts on the San Joaquin River. Cutting off some senior water rights to protect even older water rights wouldn’t be valid, she said, because senior water rights are only claims and haven’t been proven out by permits.
“This is a bulldozer when a scalpel is needed,” says Knell. “There are so many filings for water rights that have no validity. And the state hasn’t done their homework and gone through all these rights and validated them.”
Cities, Not Just Farms
Water officials say cities and communities aren’t exempt from water rights cutbacks.
“It does mean we would lose the entire supply,” says Ed Pattison, general manager of Mountain House Community Services District, which serves a community of about 15,000 people near Tray.
The community gets water from Byron Bethany Irrigation District, which had its senior rights curtailed. “The visionary people that brought Mountain House into being felt that the pre-1914 was a reliable water supply,” says Pattison. “And obviously it’s looking like it’s not as reliable as once planned and expected.”
“For now, we’re looking for emergency water supplies to fill the gap,” he says. “It was not budgeted, so this is going to be impacting the general fund significantly. I can’t predict if it will be successful, and if it’s not, it’ll be catastrophic.”
With the state facing a long, dry summer, officials warned that these may not be the last cutbacks.
“Curtailment notices for other watersheds and for more senior rights holders in these watersheds may be imminent,” warned the water board’s Trgovcich.
That could even affect San Francisco. The city's Public Utilities Commission has rights dating back to 1901, after the city’s mayor famously claimed water in the Tuolumne River by nailing a sheet of paper to a tree.
The city could be facing the same fate as other senior rights holders. “As we continue this process, we anticipate that they will be,” says the water board's Howard.