By Vicky Boyd
As part of a state drought emergency, the State Water Board has begun steps to halt water diversions by about 4,300 junior water rights holders within the Sacramento and San Joaquin River watersheds. And it has warned those with much older water rights that include pre-1914 and riparian could be next.
Not only does the move worry San Joaquin Farm Bureau President David Strecker as a diverter with some of the oldest water rights in the state, but he said curtailments could devastate agriculture as a whole.
“I feel threatened – I might be impacted by this,” said Strecker, who farms row crops on Roberts Island in the Sacramento-San Joaquin Delta. “But in ag, we’re all in this together, and it affects the entire farming economy. So it’s not the time to feel relieved if you don’t receive a notice.”
The complexity behind the State Water Resources Control Board’s proposed water diversion curtailments, as it calls the cutoffs, also raises questions, he said.
“It’s very broad and very vague,” Strecker said. “It gives a lot of people an unnerving feeling, and it’s kind of unsettling.”
Notices of water unavailability
He was referring to the board’s late July proposed emergency regulation that would prohibit water diversions in the Sacramento and San Joaquin River watersheds when supplies were not available.
Both river systems flow to the Pacific Ocean through the Delta, which the board said its actions are designed to protect along with drinking water supplies, minimum salinity standards and endangered fisheries habitat.
In June, the water board sent notices of water unavailability to post-1914 water rights holders, warning of water shortages and marking the first step in eventual curtailments. It followed in late July with water unavailability notices for all pre-1914 rights holders in the San Joaquin River watershed, all pre-1914 water right claims in the Sacramento River watershed with a priority date of 1883 or later and most riparian rights holders.
Together, they would affect about 5,700 water rights holders and claimants, according to water board figures.
The proposed emergency regulation is expected to be taken up at the board’s Aug. 3 meeting.
The Delta’s complex hydrology
Dante John Nomellini, a water attorney representing the Central Delta Water Agency, said the proposed rule and methodology used to calculate water availability could be changed during the Aug. 3 water board meeting. The Central Delta Water Agency comprises mostly water users with pre-1914 and riparian water rights.
“I don’t think we’re going to be curtailed in the Delta because it’s so far down in the (watershed) system,” Nomellini said.
He pointed out that the Delta, which has a mix of salt- and fresh-water flows, has complex hydrology with different water dynamics than normal waterways. For example, upstream uses as well as ocean tides affect where a brackish zone of mixing occurs within the Delta. Lower Delta flows also affect local groundwater, which will move upward with the reduced pressure – a process known as accretion.
Nevertheless, Nomellini still has questions about the methodology and how it will be applied. Until he sees the final versions, he won’t know his course of action.
“There are some aspects that look like we should oppose, but we haven’t made a decision,” Nomellini said. “We’ll meet with all of the attorneys together and see if we can reach a general accord on some of these aspects.”
How does 2021 compare to 2015?
The water board based its proposed curtailments on the second driest two-year period on record: 2020 and 2021. Its actions also were driven by a “water unavailability methodology” used to calculate monthly water supply and demand. The current water availability projections run through September, but the board said it plans to issue regular updates on its website.
This year’s workshops and public comment periods on the proposed curtailments differ from when the water board issued what amounted to cease-and-desist orders in 2015 for all diverters. Several water districts sued the state, saying the water board’s actions were unconstitutional. The state had failed to follow due process and hold hearings, since the curtailments amounted to takings without compensation, the districts contended.
The state eventually backed down, but those lawsuits remain active and are currently in the appeals court. So far, the water districts have prevailed.
Should the water board adopt the emergency regulation Aug. 3, it would move to the Office of Administration Law for up to a 10-day review. If approved, it would be filed with the secretary of state and would become effective immediately upon filing.
The curtailment regulation could last for up to a year unless the state receives appreciable precipitation before then. It also could be extended for an additional year if the state remains dry.
