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California water suppliers cast 1st challenge to strict drought rules

Central Valley water agencies say drought regulators overstepped their bounds in cutting off thousands of farmers and businesses from the state's largest watershed to save fish.

SACRAMENTO, Calif. (CN) — Freshly cut off from their chief water supply, a group of California water agencies in one of the state’s most fertile farming areas sued on Wednesday to freeze the latest round of emergency drought rules.

In a lawsuit filed in Sacramento County Superior Court, the suppliers argue they were denied due process when state regulators ordered thousands of landowners last month to cease diversions from the Sacramento-San Joaquin River Delta due to drought conditions. They claim the sweeping water curtailments were based off faulty data and will cause permanent damage to pricey fruit and nut orchards.

The suppliers say they are facing a catch-22 situation: break the rules and continue diverting water or abide and watch countless farms and businesses in San Joaquin and Stanislaus counties go bankrupt.

“The petitioners face this untenable choice despite the fact water is available to divert under its water rights and it has been fully deprived of an opportunity to challenge,” the lawsuit states.

The legal challenge from Banta-Carbona, Patterson and West Stanislaus irrigation districts comes less than two weeks after the State Water Resources Control Board ordered approximately 4,500 water rights holders to stop drawing from the delta watershed. It also signals a fresh fight over the state's complex scheme of divvying up its most precious resource.

The delta is the largest freshwater estuary on the West Coast and the hub of two massive water conveyance projects jointly operated by the state and federal government. The delta props the state’s multi-billion-dollar farming industry and provides drinking water for an estimated 25 million people.

With the state mired in its second driest two-year-period on record, the water board believes demand has outpaced supply on the state’s largest rivers and that curtailing water rights was necessary to avert ecological disaster. The water board has issued similar curtailment orders in other watersheds but smaller in terms of impacted users compared to the delta prohibition.

“Curtailing water rights has an impact on livelihoods and economies, but it is painfully necessary as severe drought conditions this year and next could threaten health, safety and the environment,” said Erik Ekdahl, deputy director of the Division of Water Rights, in a statement on Aug. 20.

Water suppliers, farmers and local politicians lambasted the order and hinted lawsuits would soon follow.

In their petition for writ of mandate filed late Wednesday, the suppliers claim the water board only has “limited jurisdiction” over holders of California’s most senior water rights, known as pre-1914 rights. Furthermore, they say the water board should have focused first on junior right holders and are asking the court to stay the curtailment order as the case proceeds or toss it altogether.

Another group, the San Joaquin Tributaries Authority, filed a similar petition Thursday claiming the California State Water Resources Control Board has no authority to curtail pre-1914 water rights.

A collection of water suppliers pitched similar due process complaints with some success following curtailment orders issued during the state’s most recent drought. A state judge found some of the 2015 curtailments “likely violated due process” and temporarily barred the board from fining suppliers for breaking the orders. However the drought soon subsided as did the legal battle.

The plaintiffs provide water for nearly 50,000 acres of farmland that produces crops like almonds, walnuts, cherries, tomatoes, beans and grains. They say not all of their members will be able to sustain the loss of surface water supplies by turning to groundwater.

A spokesperson for the the water board said it could comment directly on the pending litigation.

"In response to the extraordinary drought in California, the state water board utilized its emergency drought authority and adopted regulations designed to implement the state’s water rights priority system, protect minimum health and safety supplies, and preserve water stored by the state and federal projects," it said in an email. "The deputy director for the Division of Water Rights subsequently issued curtailment orders based on those regulations to address the extreme water shortages throughout the Central Valley."

California has a complex set of water rights, where people who received diversions from various areas before 1914 or own property adjacent to waterways have seniority over those who procured water rights later. In previous droughts, regulators have routinely ordered junior holders to stop diversions, but the latest order directed at thousands of delta senior rights holders has critics questioning whether the water board overstepped its bounds.

“There was no evidence before the water board of the deputy director that the continued diversion of water by petitioners, pursuant to petitioners’ water rights, would injure another legal user of water or the public trust,” the 15-page suit concludes.

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