N. Calif. Counties Denied Priority Water Rights

SACRAMENTO (CN) - In a longstanding dispute over the rights to water from California's two largest rivers, a federal judge denied a Sacramento-area water authority's claim that its residents have first right to water from their own watersheds, before it's pumped 500 miles through federally funded canals to the San Joaquin Valley.

District Judge Oliver Wanger found that neither state nor federal law supported the water rights claims from Tehama-Colusa Canal Authority, which delivers water to people in four coastal counties in northern California. Wanger denied the Canal Authority's claims, finding that the U.S. Department of the Interior and the Bureau of Reclamation have the responsibility of allocating water "for the widest public benefit."

The Tehama-Colusa Canal Authority claimed the federal government should have given its members 100 percent of their contractual water supply before exporting Central Valley Project water south of the Sacramento-San Joaquin Delta during water shortages.

In its complaint, the Canal Authority referred to two dry water years: 2008 and 2009. In 2008, the Canal Authority and other water service contractors north of the Sacramento-San Joaquin Delta received 100 percent of their water allocation, while contractors south of the delta received only 50 percent.

In 2009, a year of such intense drought that Governor Schwarzenegger declared a State of Emergency, Canal Authority and its northern brethren received 40 percent of their contractual amount, while those in the south received only 10 percent.

The Canal Authority sued, claiming California's state water code grants priority rights water to users in the water's area of origin.

But the water system at issue, the Central Valley Project, is a federally funded project dating back to the 1930s that includes Shasta Lake and Shasta Dam.

California set up the project in 1933 to pump water from the Sacramento River to the San Joaquin River and into canals that carried it to the southern San Joaquin Valley. California's Central Valley Project Act provided "area of origin statutes," that were "intended to protect water use within areas of origin," the ruling states.

But California couldn't afford to fund the entire project, and in 1935 it asked the U.S. Congress to step in and help.

Congress agreed, but it wasn't until 1950 that it provided additional funding for canals as far north as Sacramento Valley.

That year, Congress passed An Act to Authorize Sacramento Valley Irrigation Canals, Central Valley Project, California.

Congress described the newest California irrigation act as "a desirable step to implement the intent of the legislation of the State of California which preserves the water supply that will be required to meet present and future beneficial needs in the various watersheds of origin."

However, "the 1950 Act did not direct that the canals be operated to provide area of origin contractors with a priority over other contractors, rather Congress required that the canals be 'coordinated and integrated' with the operation of the 'existing features of the Central Valley Project in such a manner as will effectuate the fullest and most economic utilization of the land and water resources of the Central Valley of California for the widest public benefit," Judge Wanger wrote.

Under the Act, Wanger found that the Bureau of Reclamation has the room to make its own decisions on where to best allocate the water in order to create "the widest public benefit."

Although the Act "instructs that areas of origin are not to be 'denied' of the 'prior right' to 'the water reasonably required to adequately supply the beneficial needs of the watershed,' it does not specifically identify what action the Bureau is required to take to protect such 'prior right," the judge wrote.

And "decades of consistent interpretation" on the part of the Bureau and the California legislature back up the Bureau's position of refusing to grant superior rights to any one region.

Wanger also noted that Canal Authority members agreed in their original water service contracts in the 1960s and 1970s to let the Bureau of the Interior reduce their water supply during dry years.

In 1996, while renewing their contract agreements, Canal Authority members asked the Bureau to grant them superior rights based on area of origin.

But the Bureau rejected this idea, finding that California water law statutes "do not guarantee that the water supply needs of an entire area of origin, will or can be met," according to the ruling.

Judge Wanger wrote that Canal Authority wants "to change the rules of the game after almost 40 years of contracting for Central Valley Project water service, to judicially create new contract terms granting preferential treatment to plaintiff and its members" during times of shortage.

At most, Wanger wrote, the Canal Authority could have applied to the State Water Resources Control Board for priority water rights permits under the state's area of origin statutes, but neither the Canal Authority nor its members have done so.

"The lack of any federal statutory language recognizing or granting an area of origin priority in [Central Valley Project] water service contracts defeats [Canal Authority's] self-serving, and wholly unsupported contention that such a priority exists and is not inconsistent with [Central Valley Project's] purposes," Judge Wanger wrote.

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