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Who Holds Superior Rights, And Where Is All That Water Going?

By Aubrey Bettencourt

In the regulatory realm, responsible due process follows a simple path: Legislation creates a statute granting authority; that authority sets regulation and conforming orders; violations of orders result in a notice; notice leads to demonstration of wrongdoing; and wrongdoing leads to punishment.

Within this framework, courts interpret how the players conduct themselves. Our constitution gives the judicial system the authority to put any player in the penalty box if they misbehave.

But somehow this reality is lost on the State Water Resources Control Board (SWRCB).

SWRCB recently told holders of 9,018 junior and senior water rights to stop diverting water from California’s rivers and streams. The SWRCB deputy counsel and lawyers said in court filings and to the media that it’s because ‘there isn’t enough water to go around for everyone with water rights.’

On June 12, 114 senior rights holders dating to 1903 were asked to stop drawing water. On June 26, 16 senior water rights holders dating to 1858 received more curtailment notices. All were told that the SWRCB had acted to protect those with more senior rights to the water.

The questions that need to be answered are: Who holds those superior rights, where is all the water going, and how does the SWRCB know definitively whose water is whose?

On July 10, 2015 Sacramento Superior Court Judge Shelleyanne Chang issued a restraining order. She said the SWRCB’s senior water rights curtailment actions violated the due process rights of four water irrigation districts that had sued the SWRCB.

The judge was crystal clear: To be legal the SWRCB must show how each district broke the law or a regulation, and it must provide each district an opportunity to defend itself before cutting off its water diversions.

The water board seemed to relent. It sent out new notices that seemed to comply with Chang’s order, but they lacked itemized specific violations or orders to stop diversions.

The SWRCB didn’t say who held superior rights, where the water was going, or how it knew whose water the districts were diverting.

A week after the ruling, the SWRCB issued a draft cease-and-desist order to West Side Irrigation District to stop diverting water from the Old River. West Side was a plaintiff in the restraining order case.

In a clear challenge to the judge’s order the Sacramento Bee reported, “The water board believes it could take action against West Side even without rewriting the curtailment notices.”

On July 20, the SWRCB levied a $1.5-million fine against another plaintiff, Byron-Bethany Irrigation District, claiming that district diverted water during the interval between its two notices.

Left unanswered were the same questions:

  • Who holds superior rights to the water Byron-Bethany and West Side diverted,
  • Where is all that water going, and
  • How does the SWRCB propose to prove in a court of law that it separated and identified the water owned by a harmed superior rights holder from all the other water owned by other rights holders flowing intermingled in those waterways?