California Hedges on Water Cuts;|Managers Call Situation ‘Chaotic’

           SACRAMENTO (CN) – The California Attorney General’s office backtracked Tuesday, surprising senior water rights holders by saying in court that the curtailment notices they received were merely advisory and not compulsory.
     The turnaround happened in San Joaquin County Superior Court during a hearing in Banta Carbona Irrigation District’s challenge of curtailment notices the State Water Resources Control Board issued to 114 senior rights holders in the Sacramento-San Joaquin River Delta region on June 12.
     The Banta Carbona Irrigation District is south of Tracy in San Joaquin County, in the heart of the San Joaquin Valley. California produces more than one-eighth of the nation’s agricultural revenue, and the valley, known as California’s Breadbasket, produces most of the state’s output.
     The notices directed certain owners of water rights dating back to 1903 to immediately stop diverting water and threatened daily $1,000 fines plus $2,500 per acre-foot of water drawn if they did not comply. An acre-foot of water is enough to supply approximately two homes for a year.
     Several water districts responded by suing the water board, claiming the state does not have the right to restrict the senior water rights holders’ water use.
     In court documents rebuffing the lawsuit brought by Banta Carbona, state officials seemed to change their stance by characterizing the curtailment notices as “courtesy notices” that were “advisory” only.
     Water managers said that hardly seemed to be the case.
     South San Joaquin Irrigation District General Manager Jeff Shields said the notices told rights holders they had seven days to sign a compliance statement under penalty of perjury.
     “That doesn’t sound like a general courtesy notice. That sounds like an order,” he told Courthouse News.
     Steve Knell, general manager of Oakdale Irrigation District, said the state’s change of position surprised everyone.
     “They basically said, ‘I don’t know why you’re all upset, these are just advisory notices, they’re not enforceable, they are in no way intended to make folks do anything.’ There’s a lot of confusion right now,” Knell told Courthouse News.     
     Water board spokesman Tim Moran said there appears to be “some confusion” about the curtailment notices.
     “A curtailment notice, provided by the State Water Board’s Division of Water Rights, lets water right holders receiving it know that if diversions are not stopped pursuant to those rights, the water right holder may be subject to enforcement for an unauthorized diversion of water,” he said. “This notice is not an order. An enforceable order would follow an evidentiary hearing, if requested by the diverter, at which the State Water Board would determine whether an unauthorized diversion or threat of unauthorized diversion was occurring.”
     The water board is in the field to determine whether unauthorized diversions are actually taking place, he said.
     This is just the second time in history that the state has sought to curtail water rights of farmers and agencies whose claims date back before 1914. They have historically been protected by their longstanding water rights.
     Shields said the state’s curtailment notices violated due process.
     “California water law is really simple. There is a water right priority system that has been established and it exists to create order in times of shortage. They can’t just issue a blanket order saying that everybody has to stop pumping. That’s not how the water rights priority works,” Shields said.
     The state must abide by a process in which it identifies the water rights at issue, who holds those rights and in what order, and who would be injured, Shields said. Then it can curtail the rights in order of seniority.
     In this case, the state “never held a process to say why they are doing this,” Shields said.
     “I don’t even know whose water we’re supposedly diverting that has a higher right to it than we do. Instead, the water board just told us to sign a document without a hearing and without due process. The attorney general identified these fatal flaws in the process, and as a consequence stepped away from calling them curtailment orders.”
     Shields called the situation “chaotic.”
     The only appropriate action now is for the water board to rescind the orders or issue a clarification explaining that they are only advisory and not compulsory, he added.
     Court documents filed by Attorney General Kamala Harris state that Oakdale and South San Joaquin irrigation districts’ request that Stanislaus County Superior Court stay the water board’s enforcement of the curtailments is premature.
     “The notice does not impose liability on any diverter, or determine that any diverter is in violation of the law; rather, the notice refers to potential penalties, the imposition of which must be preceded by an adjudicative proceedings,” according to the state’s opposition to the water districts’ request for a stay.
     Because the water board has not found that the districts are diverting water without the authority to do so, and such a finding would require a hearing, the districts’ challenge to the general curtailment notice “presents no justiciable controversy,” the state said.
     A hearing on the districts’ ex parte application for a stay of the curtailments is set for Thursday before Stanislaus County Judge Timothy Salter.
     Salter is expected to rule that he does not have jurisdiction to issue a stay, and must transfer the case outside of the county.
     On Wednesday, Salter ruled in the Patterson Irrigation District‘s case that the state was entitled to a change of venue.
     On Tuesday, San Joaquin County Superior Court Judge Carter Holly ruled that the Banta Carbona case must be transferred to a less partial county – which one has not yet been determined.
     In its change of venue motion in the Oakdale and South San Joaquin complaint in Stanislaus County, the state says the water board “will likely be perceived as a distant sovereign opposing the interests of the local residents.”
     Oakdale Irrigation has 2,900 agricultural accounts in its 65,000 acres. South San Joaquin Irrigation serves drinking water to 200,000 people and irrigation water to 50,000 acres.
     Oakdale general manager Knell said the change of venue will delay the case to the detriment of water agencies that are unsure of how to proceed in the troubled legal waters.
     “We could be looking at 10 to 12 weeks until districts get their day in court. It’s almost impossible to run an irrigation district when the state keeps jerking you around like this. We need to know how much water we’re going to have at the end of the year. Because the state is so uncertain, that makes our business so uncertain, and that’s the hard part of it,” Knell said.
     He criticized the water board for not being better prepared on how to handle the curtailments.
     “We live in a state that has droughts. This is the fourth year of the drought and the state’s now doing things against senior rights holders that may not be legally possible. The water board should have figured this out long ago,” Knell said.
     The state did not immediately respond to requests for comment.

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