Irrigators with senior water rights prevail in court fight

By Peter Hecht

A state appeals court has issued a ruling protecting longstanding water rights of many California farmers, ranchers and water agencies.

California’s Sixth Appellate District Court of Appeal ruled that the California State Water Resources Control Board cannot target senior water-rights holders for across-the-board curtailments in water deliveries.

The Sept. 12 ruling was a win for irrigators holding water rights granted before 1914. The court said the water board does not have the power to curtail “an entire class” of senior water rights “solely on the basis that the board believes that there will be insufficient water to serve all pre-1914 appropriative water rights.”

California Farm Bureau President Jamie Johansson called the ruling an important decision that should serve as a notice for state policymakers.

“The Farm Bureau is pleased that the court has recognized senior water rights, which are critical to California communities, agriculture and securing our nation’s food supply,” Johansson said. “As food prices continue to skyrocket, this is a wake-up call for those in charge of California’s water system to reject their current policy of scarcity.”

Johansson said the ruling underscores that California needs to deliver on promised water infrastructure instead of just cutting irrigation supplies in dry years.

“We need to build water storage and invest in improved water conveyance, as a vast majority of California voters called for in approving the Proposition 1 water bond in 2014,” Johansson said. “This is a reminder that the state needs to act on those voter wishes.”

The Sixth Appellate District case stemmed from a lower court decision in favor of farmers and irrigation districts that sued the water board over curtailment orders during the 2015 drought. Those orders halted diversions from the Sacramento and San Joaquin rivers for thousands of farms in the Central Valley.

The water board argued in court briefs that the 2015 water notices were later lifted, meaning they no longer merited a legal review. The appeals court disagreed, saying, “The question of whether the board had the authority issue the curtailment notices...remains an important question affecting the public interest.”

The court said state water officials could halt water deliveries to irrigators lacking pre-1914 senior water rights. However, it said, applying the same standard to senior water-rights holders was “outside the scope” of the board’s authority.

“We reject its contention that the statute endows the board with jurisdiction to curtail diversions based on alleged violations of priorities of right among valid pre-1914 right holders,” the court ruled.

In a statement after the ruling, state water board officials said the appeals court took “a narrow view of the State Water Resources Control Board’s customary enforcement authorities.”

“Water scarcity is one of the most important challenges facing Californians,” the board statement said. “Ensuring that water districts and others divert and use water consistent with the state’s water right priority system is critical to protecting public health and the delivery system for farms, communities and the environment.”

This year, the board again curtailed diversions from the Sacramento and San Joaquin rivers for some 4,500 farms and senior water-rights holders, including Modesto and Turlock irrigation districts and the city of San Francisco.

The water board acknowledged that the court ruling “shields the most senior water right holders.” But it said the ruling “does not impact the board’s authority to take actions against illegal diversions, nor does it preclude the board from taking enforcement measures to protect water released from storage, such as the State Water Project or Central Valley Project.”

The board said it has relied on its emergency regulation authority, which was enhanced by the Legislature in 2014. It said it “will continue to do so amid increasing threats to the state’s water supply.”

However, California Farm Bureau Senior Counsel Chris Scheuring said the court decision “is a win for the water rights system.”

“As a practical matter,” Scheuring said, “it’s a recognition that the state can’t regulate itself out of a water supply and demand crisis by targeting senior water rights, and a signal that we must renew our focus on new supply and infrastructure.”

(Peter Hecht is chief editor of publications for the California Farm Bureau. He may be contacted at phecht@cfbf.com.)