June 7, 2014

Water rights may be limited for century-old irrigation districts

With water shortages caused by the drought, state officials are considering limiting who can continue to divert water from the Tuolumne, Stanislaus and Merced rivers.

Some folks simply don’t trust state leaders when it comes to protecting their water rights.

The State Water Resources Control Board this month is expected to “curtail” river diversions for those who established their water rights more than 100 years ago.

That includes flows down the Stanislaus, Tuolumne and Merced rivers, which the Northern San Joaquin Valley’s big irrigation districts depend on to supply farmers with water.

State officials insist they simply want to protect California’s most senior water users from shortages caused by others who otherwise might take too much water.

“There’s not enough water to satisfy all the demand,” said Tim Moran, a spokesman for the water board. “We’re following the rules everyone knew were there. … Curtailment is a system to protect water rights based on seniority.”

Managers of the Oakdale and South San Joaquin irrigation districts aren’t convinced that protection is really what the state has in mind, and they’re threatening to take legal action to protect their water supply.

“We don’t think the state’s authority extends to our pre-1914 water rights,” said Steve Knell, Oakdale Irrigation District general manager. “We fully expect to take them on should they decide to go down that path.”

He’s not the only one.

“We will do whatever we have to do to protect our legacy water rights,” agreed Jeff Shields, general manager of South San Joaquin Irrigation District. “The regulations they’re proposing are illegal.”

But those proposed regulations aren’t even out yet, and state officials insist there’s nothing to fear.

At its meeting June 18 in Sacramento, the water board will consider a “resolution regarding drought-related emergency regulations for curtailment of diversions to protect senior water rights.”

What that resolution will say has not been made public, which has led to speculation that the state plans to tap into the water now stored in irrigation district reservoirs.

OID issued a statement last week expressing Knell’s concern about the state reducing his district’s rights to water stored behind New Melones Dam.

That won’t happen, assured Moran.

Whatever water has been stored can be used, and the state isn’t going to touch it, Moran promised. But once the curtailment order is issued, he said, some irrigation districts may not be able to divert any additional water out of the rivers.

Rights get muddied

Who gets cut off and who doesn’t depends on how long ago water rights were established.

“First in time, first in right” is the rule, explained Aaron Miller, a senior engineer on the water board’s staff.

The Modesto Irrigation District, for example, was established in July 1887 and has some of California’s oldest water rights, and OID came along in 1909, according to their websites.

So even though MID gets its water from the Tuolumne River and OID gets its from the Stanislaus River, the Modesto district may be entitled to take its full share of water before Oakdale gets another drop.

That’s because both rivers are part of the San Joaquin River watershed, and everyone with senior water rights in that watershed will be ranked by seniority, Miller said.

But establishing seniority is a tricky business when it comes to century-old water rights.

The water board’s online water rights database, for instance, shows the oldest water rights for OID and SSJID date to 1913; the Modesto and Turlock irrigation districts have rights listed as far back as 1900. The Merced Irrigation District’s oldest rights have a 1911 date.

Those dates are wrong, according to Shields. He said OID and SSJID acquired five water rights dating from 1853 to 1914.

Shields doesn’t think it’s fair to limit the seniority ranking just to those in the San Joaquin River watershed.

“Stack up the Sacramento River’s water right holders and put them in the queue as well,” Shields suggested. “I’ve got no beef” if the entire state is included on the seniority list.

Miller said it wouldn’t make sense to mix the watersheds because water from the Sacramento River watershed cannot be naturally accessed by those in the San Joaquin River watershed.

There’s a lot of suspicion, however, that state officials plan to put more restrictions on those with San Joaquin water rights than on those with Sacramento water rights.

Both rivers flow into the Delta, and from there some of the water gets pumped through aqueducts to Southern California.

Moran acknowledged there are environmental and health concerns about the low freshwater flows to the Delta, particularly because of saltwater intrusion from the Pacific Ocean. He said that salty water negatively affects Delta farmers and municipal water supplies for the Bay Area and Southern California.

State officials have warned all those with water rights that it “may consider needs for limited diversion for public health and safety needs where there is no other water supply available for emergency human health, sanitation and safety needs.”

Mismanagement alleged

Knell accused the state of mismanaging California’s water supply during the drought, which is now in its third year. The state “has had since 1976 and 1977 ‑ the last major drought ‑ to get ready for this drought, and it did nothing,” Knell said in a written statement issued by OID. “Thirty-seven years of sitting on the bench and when it’s time to play, the state can’t dribble the ball.”

The Merced Irrigation District also has concerns about the state’s water regulations.

Curtailment of water rights may cause Merced’s growers “to lose tens of thousands of acre-feet of water to which they are legally entitled,” said Mike Jensen, the Merced district’s spokesman. “This will also impact our groundwater basin and our local environment. The loss will depend on when the curtailment is issued, when it is lifted and how much water is in the river during those times.”

Jensen said his district “is extremely concerned” about what actions the state board may take.

“It makes absolutely no sense for Merced ID to be required by the state board to release even more water than it already does (into the Merced River),” Jensen said. “This is especially concerning because, aside from the severe impacts that the drought has had on our customers already, this has the potential to benefit junior water right holders downstream at the expense of Merced senior water right holders.”

The Modesto and Turlock irrigation districts are taking more of a wait-and-see approach regarding the water board’s curtailment plans.

“As of today, there has not been a curtailment order issued involving senior water rights on the Tuolumne River. If that order is issued, TID will examine it closely and determine an appropriate strategy at that time,” TID spokesman Calvin Curtin said.

“It is difficult to determine specific impacts without having any details,” MID spokeswoman Melissa Williams said. “MID will work diligently with other San Joaquin River watershed agencies to both inform the (water board) and protect our water rights.”

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