Board adopts curtailment rule; exempts ‘seniors’


Issue Date: July 9, 2014
By Christine Souza
Accompanied by his grandson, walnut grower Bret Warner of Hickman testifies before the State Water Resources Control Board during a hearing about an emergency water-curtailment regulation.
Photo/Christine Souza

After making a change to exempt holders of senior and riparian water rights from its curtailment orders, the State Water Resources Control Board unanimously adopted emergency regulations to provide an expedited curtailment process for surface water diversions.

The action, taken at the end of a two-day hearing last week, provides the board executive director with the authority to issue immediately enforceable curtailment orders against holders of post-1914 water rights, otherwise known as junior water rights. Water rights from before 1914 and those on riparian land were left out of the emergency regulation. Senior or riparian rights may only be curtailed under existing, non-emergency procedures, after formal notifications and hearings.

The emergency regulations affecting junior water rights are due to take effect July 14 and are expected to remain in effect for 270 days.

"We appreciate the state board's recognition that their charge is to enforce the seniority system, and we think the board recognized that the pre-1914 and riparian water rights are not totally within their jurisdiction," said Chris Scheuring, environmental attorney for the California Farm Bureau Federation.

The draft proposal offered by water board staff would have given the board authority over curtailment of senior water right holders, and the threat of curtailment of senior water rights brought out enough farmers, ranchers and others to fill two meeting rooms.

CFBF President Paul Wenger, who attended the water board meeting, said he believes the public testimony was effective.

"The farmers who came to that meeting made a difference," Wenger said. "Their presence and their testimony validated the concerns about the draft regulation that Farm Bureau and others had raised. The farmers showed the board that the problems with the draft regulation were not theoretical, but real."

Many who commented on the draft proposal said it offered water rights holders no method of due process to challenge board findings.

"Due process is keenly important to our members," Scheuring said.

Alan Lilly, speaking on behalf of the Yuba County Water Agency, addressed the board's stated goal of protecting senior water right holders.

"The state board staff's agenda item repeatedly refers to protecting senior water rights and yet, no senior water right holder has come forward asking for protection, and that is very, very significant," Lilly said.

Sixth-generation walnut grower Bret Warner of Hickman, who brought his grandson to the hearing, told the board its decision on curtailments would have long-lasting implications.

"Walnuts are a 35-year investment. One year without water and that investment is gone. I've spent my whole life building this, and one notice and we're done," Warner said.

Fourth-generation farmer Dino Del Carlo, who farms in the south delta, also shared concerns about the future and his family's potential losses.

"The problem is the timing of these curtailments," Del Carlo told the board. "My life has been a terror for the last month … because I'm constantly worried about what's going to happen. Our family farm, we have probably $4 (million) or $5 million invested in our crops. If I don't finish growing those crops, I'm basically going to go bankrupt after four generations."

Testifying in support of the draft regulation, Westlands Water District General Manager Thomas Birmingham said farmers in his western San Joaquin Valley district already face the crop losses that holders of more senior rights fear.

"The basic question is: Are we facing a circumstance—an emergency circumstance—that warrants deviation from normal procedures? From our perspective, the answer to that question is yes. We are facing water supply shortages that are unprecedented," Birmingham said.

State water board chair Felicia Marcus stated at times during the two-day meeting that the purpose for the emergency regulation was to provide the board with an effective approach to protect senior water right holders against unlawful diversion by junior right holders due to widespread surface-water shortages.

As adopted, the emergency regulation outlines conditions under which the board executive director may immediately enforce curtailment orders issued to junior water right holders. Violation of a curtailment order may be accompanied by substantial penalties.

Under the regulation, a junior water right holder who wishes to challenge a curtailment order may request reconsideration before the board, Scheuring said. Whether it is reconsidered or not, the diverter also retains the right to petition a judge for review of the action. Under previous regulations, the board would have had to hold an evidentiary hearing before issuing a curtailment order.

Although the emergency regulation excluded pre-1914 and riparian rights, it allows the board executive director to order those right holders to report on their diversions, and provide information on the basis of their rights.

A separate issue relates to unauthorized diversions, including diversions of previously stored water—as opposed to natural runoff from precipitation. The regulation provides for a complaint procedure to target enforcement actions, based on third-party allegations of interference with more senior rights as well as unauthorized diversions of releases of previously stored water.

"California farmers and ranchers know better than most that it's been an exceedingly dry year, and we hope that all Californians understand the need for additional surface storage supplies to be able to ride out future years like this," Scheuring said.

Information on the curtailment process has been collected on the California Farm Bureau website at www.cfbf.com; follow the link to the Water Crisis page and click on California Water Crisis: Curtailments.

(Christine Souza is an assistant editor of Ag Alert. She may be contacted at csouza@cfbf.com.)

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