State water board discusses plans for curtailments


Issue Date: May 28, 2014
By Kate Campbell

Several drought-related actions by the State Water Resources Control Board have muddied the waters in terms of public understanding about what drought-related water curtailments are required now and what curtailment plans might mean for California farmers and ranchers during this year's growing season.

The board unanimously adopted emergency regulations last week to curtail water diversions from three Sacramento River tributaries—Mill, Deer, and Antelope creeks in Tehama County—if flows fall below minimum requirements for protected fish.

Simultaneously, the board conducted a workshop on broader curtailment concepts for the entire Sacramento-San Joaquin Delta watershed, presenting four options for cutting off water diversions by state water right holders due to drought-related lack of stream flows.

Commenting on the decision to curtail diversion in the three Tehama County creeks, California Farm Bureau Federation associate counsel Jack Rice said the board allowed very little time for those affected by the curtailments to grasp the proposal's implications.

"This is very troubling, both because this is a new approach to implementing the reasonable-use doctrine, and because the effects of short-notice curtailments are so significant to water users," Rice said.

Before the vote on the drought-related emergency regulations on the three streams, Farm Bureau had asked the board to carefully consider the legal and practical implications of any decisions it might make and to take no action that was not actually necessary to protect native salmon and steelhead.

One of the most troubling aspects of the board's action, Rice said, is the potential harm it might do to voluntary drought initiatives being used now by farmers, the National Marine Fisheries Service and the state Department of Fish and Wildlife to protect fish populations on the three streams.

It's not clear whether the water board understood its action could make it more difficult for water users to respond to changing water conditions and threats to species, Rice said.

Another area of concern for Farm Bureau involves a lack of due process by the board, he said.

"We appreciate that board actions in a drought must be prompt to be meaningful, but this is not justification to abrogate due process," Rice said in comments to the board. "Suffice it to say that the fact due process is cumbersome is not a justification for avoiding its requirements."

Attorneys for the Northern California Water Association told the water board prior to its vote for drought-emergency curtailment on the three streams that it was setting a dangerous precedent on two fronts—essentially declaring categorical determinations of unreasonable use and reprioritizing the state's historical system of water rights.

Equally important, Rice told the board that any supposed benefits to fisheries from the emergency regulatory action may be overstated, because the height of the spring chinook salmon run ends in early June.

While these issues were discussed by the board, a second proceeding—a workshop to consider options for drought-related curtailments of post-1914 water rights in the delta—was conducted simultaneously.

The board said there's currently not enough natural flow in the state's water system to meet all demands, and releases are now being made from already low reservoir storage.

Board Chair Felicia Marcus said the board's intention is to retain sufficient supplies in storage to meet water needs should 2015 turn out to be another dry year.

The discussions about emergency delta curtailments took place in the context of state law: Where there isn't enough water to meet the needs of all water rights holders, those with rights before 1914 and those on riparian land are considered senior. Beginning with junior water rights holders, curtailments would occur if natural flows in the delta watershed are inadequate to support all diversions and in-stream beneficial uses, including delta water quality.

Speaking on behalf of Farm Bureau, managing counsel Chris Scheuring said the proposed curtailment options presented by the board raise many questions. But Scheuring noted widespread agreement among participants regarding the importance of respecting the priority system of water rights.

"If all this workshop is about is an attempt to stop illegal water diversions in the delta, the board already has the necessary authorities to prevent that," Scheuring said. "I realize there's a question about whether water supplies should be shared in times of extreme shortage, but the legal answer is that we have a system of water rights to provide for specific actions during times of water shortage."

Representatives for NCWA also called for a clear understanding of what minimum human health and safety needs really means. They said the definition suggested by water board staff appears, at best, to be "arbitrary and lacking in evidentiary support."

"Once properly defined, human health and safety needs must be addressed within the parameters of the water right system including the rule of priority," NCWA attorney Kevin O'Brien said. "As has occurred in the past during times of shortage, the needs of municipal and industrial water users can and should be addressed through voluntary, market-based water transfers."

(Kate Campbell is an assistant editor of Ag Alert. She may be contacted at kcampbell@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.