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Drought Puts California Water Rights in Crosshairs for Reform

Some experts believe California’s antiquated regulation of water rights is ripe for reform; farmers worry it would come at their expense.

Written by Gary Pitzer Published on Read time Approx. 4 minutes

California’s severe drought has put its water rights system under scrutiny, raising the question whether a complete overhaul is necessary to better allocate water use.

That process would be a monstrous undertaking and extremely complicated. It would be vigorously opposed by those with long-held water rights who favor the present system, and supported by reform advocates who believe the time has come for California to join other western states with more defined rights.

Some experts believe it’s time for a change.

“It’s a system that worked reasonably well 20, 50, 100 years ago, but the current drought is showing that it is most inadequate to deal with California’s current water challenges,” said Richard M. Frank, professor of environmental practice and director of the California Environmental Law and Policy Center at the University of California Davis School of Law. “It’s very inflexible in terms of water rights priorities, there is limited recognition of environmental values and environ­mental needs for water, and there’s a lack of transparency that is very frus­trating to me and to a lot of observers.”

But to those on the ground, changing the current system is inviting catastrophe and unpredictable results.

“The calls for revisions of water rights are not coming from within the agriculture community; they are coming from folks who would like to see water go to different purposes,” said Cannon Michael, who grows processing tomatoes, fresh market tomatoes, melons, corn, cotton, alfalfa and wheat on 11,000 acres in Merced County (he’s also a Water Education Foundation board member and a member of Water Deeply’s advisory board).

“You don’t hear a call from the ag community saying we want to redo the water rights system.” Michael said, “and that is because having some priority to deliver water to ag, especially south of the Delta, is important because we then can work out transfers between neighbors. If the water rights system was revised in California now, it is very likely that existing water rights held by agriculture would be weakened.”

Water rights attorney David Aladjem, of Downey Brand in Sacramento, believes the current water rights system is stable and fair, as exhibited by the willingness of “major water rights players” to abide by the state’s mandated reductions.

“There is no dispute that the water gets allocated according to the priority system,” he said. “It’s all about using the priority system to allocate a scarce resource in a time of scarcity.”

Some water rights holders have been hammered by a drought that may leave them with no water by the end of the summer. In 2015, for the second consecutive year, 2,582 junior water rights holders in the Sacramento River watershed and 219 in the Sacramento-San Joaquin Delta received curtailment notices from the State Water Resources Control Board. The action affects people in the 27,000-square mile Sacramento River watershed, which includes the Pit, Feather and American rivers, and all other portions and tributaries of the watershed. (Click here for a database of California senior water rights, compiled by the Associated Press.)

The state water board’s curtailment notices came on the heels of an April 1 Sierra snowpack with a snow water equivalent of just one to two inches – a disconcerting development considering the previous low measurement for April 1 was 27 inches in 1977. Snow water equivalent is the depth of water that would theoretically result if the entire snowpack melted instantaneously.

The drought has forced the state to curb water for a record number of water rights holders. On June 12, the state water board announced another round of cuts, bringing the total to 8,721 junior water rights and 277 senior water rights in the Sacramento-San Joaquin River watersheds and Delta. That was followed by “extended curtailments” on the Merced River for senior water rights dating back to 1858; and all pre-1914 and post-1914 appropriative rights on the Upper San Joaquin River.

The city of San Francisco also received the notice based on appropriative water rights it holds on the Tuolumne River dating back to 1903.

Some Delta farmers with riparian water rights agreed in May to a voluntary 25 percent reduction in water use in exchange for not being asked to make further cuts to their supply.

“This proposal helps Delta growers manage the risk of potentially deeper curtailment, while ensuring significant water conservation efforts in this fourth year of drought,” state water board chair Felicia Marcus said in a statement following the Delta water users’ agreement. “It allows participating growers to share in the sacrifice that people throughout the state are facing because of the severe drought, while protecting their economic well-being by giving them some certainty regarding exercise of the state water board’s enforcement discretion at the beginning of the planting season.”

However, the state water board’s curtailment notice to the West Side Irrigation District, Central Delta Water Agency, South Delta Water Agency and Woods Irrigation Co. was blocked by a Sacramento Superior Court judge July 10 on the basis that the water agencies weren’t given the chance to defend their water rights before the board.

Five days later, the state water board issued a draft cease-and-desist order to the West Side District, which could cost it $10,000 for every day it diverted water from the Old River in San Joaquin County.

This article was originally published in the July/August 2015 issue of Western Water, a magazine published by the Water Education Foundation, based in Sacramento.

Top Photo: Farmer Rudy Mussi watches as his grandson Lorenzo tries to turn a water valve on at his almond orchard in the Sacramento-San Joaquin River Delta near Stockton. Dozens of farmers in the Delta offered this year to reduce their water consumption 25 percent in order to avoid steeper cuts in their water rights. (by Rich Pedroncelli, Associated Press)

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