SACRAMENTO (CN) – A week after a court ruled that California cannot fine water districts for ignoring curtailment notices, the state issued its first cease-and-desist order against a Central Valley irrigation district.
State Water Resources Board inspectors found that the West Side Irrigation District in Tracy, which holds junior rights to water in the Sacramento-San Joaquin Area, continued to take water from the Delta’s Old River after it received a May 1 notice that there was insufficient flow to meet the demand of junior right holders.
Under the complicated rules of Western water rights, the oldest claims from those who make “beneficial use” of water are senior to later claims.
The board threatened to fine West Side up to $10,000 a day if it does not comply with the order. The irrigation district can request a hearing on the matter within 20 days of receiving the order.
It was the first such enforcement action the water board has taken this year.
West Side was one of four irrigation districts that sued the board over a curtailment notice it received in May.
Sacramento County Superior Court Judge Shellyanne Chang on July 10 handed the districts a victory when she issued a temporary restraining order preventing the water board from enforcing curtailment notices that strip the districts of their ability to divert water.
Chang said the curtailment notices violate the districts’ rights to due process because no hearing was held for the districts to present evidence disputing the board’s findings.
The ruling was based on how the state regulates water use – not on its power to do so.
After the ruling, the state issued revised letters to 4,600 farmers throughout the state and said the notices were only advisory. The board plans to reissue notices it began sending in April to more than 9,300 junior and senior water rights holders, many of whom were told to quit diverting water due to drought for the first time since 1977.
The revised notices tell water rights holders that while they are allowed to divert water, there is not enough water to serve their needs.
The water board will continue its field inspections to see if rights holders are illegally diverting flows from rivers and streams that do not have enough water. Based on the results, more cease-and-desist orders could be coming soon.
A water board represenative said the cease-and-desist order was “in no way retaliatory.”
The State Water Board has been investigating allegations of unauthorized diversions by West Side for several weeks, with West Side’s knowledge, and well before West Side’s lawsuit,” the representative said. “An outside observer could just as easily conclude that West Side’s lawsuit and TRO application were timed to thwart the board’s enforcement efforts. Water-rights enforcement is grounded in due process, and West Side now has the opportunity to request a hearing on all of the allegations, including the board’s calculations of water availability.
Attorneys for West Side Irrigation District did not immediately respond to requests for comment.
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