Farmers in at least two California irrigation districts are considering whether to ignore a letter from the state calling for historic cuts in water use during the drought, a lawyer said Thursday.
Attorney Steven Herum, who represents the Patterson and Banta-Carbona irrigation districts, said the move is under consideration because the state is backing off the notices issued this month demanding deep cuts.
He said the confusion has caused the farmers to consider defying the state to keep their orchards alive.
“We’re reaching the point of reckoning,” Herum said. “I think the farmers and irrigation districts are going to have to take a hard look at the totality and legal consequences of the situation.”
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State water board attorney David Rose said the state hasn’t wavered on the cuts and farmers face significant fines if they are found illegally using water. Rose said the state letter to rights holders carries the message: “You hold this right. Under our analysis, this right doesn’t have water available to it. Be aware.”
Herum, however, said attorneys for the state called the curtailment notice “advisory” and a “courtesy notice” in court. He said that amounts to backing off the strongly worded letter that uses coercive language.
“They (the irrigation districts) kind of jumped on some wording used in court, but it’s not really a change in what we’re doing,” water board spokesman Tim Moran said Wednesday.
He agreed with Rose’s assessment. A curtailment notice “is telling water rights holders that there is insufficient water to continue withdrawing under their rights and telling them that if they continue, they could face action,” Moran said.
“They’re correct that it’s a courtesy notice,” he said, but that doesn’t mean action would not follow.
Moran provided a statement from the water board: “Under Water Code section 1052, unauthorized diversions are subject to penalties by the water board or a court. Violations are subject to fines up to $1,000 per day and $2,500 per acre-foot of water unlawfully diverted, cease and desist orders, or prosecution in court.”
If an irrigation district challenges a fine, he said, it could request an evidentiary hearing. At the hearing, the water board “would determine whether an unauthorized diversion or threat of unauthorized diversion was occurring” and, if so, “an enforceable order would follow,” according to a water board statement.
Irrigation districts in Oakdale, Manteca, Patterson and Tracy (Banta-Carbona) have filed lawsuits seeking to suspend the curtailment notices.
In each case, a judge ruled the disputes need to be heard by a court outside the counties where the farmers work and live, as a way to avoid prejudice.
“We’re living life in a blender at this point,” Oakdale Irrigation District General Manager Steve Knell said in a news release issued by OID and the South San Joaquin Irrigation District on Wednesday. “The state water board has generated a lot of confusion by its actions. In its court papers, it’s apparent it’s changed course. It’s mass confusion.”
“The attorney general identified fatal flaws in the SWRCB’s curtailment notices,” SSJID General Manager Jeff Shields said in the same release. “As a result, the appropriate action would be for the SWRCB to rescind the curtailment order or issue a clarification explaining they are only advisory, not compulsory.”
Herum said farmers in the districts he represents have trees that produce more than $1 billion in almonds and walnuts. They say the cuts would threaten their livelihoods.
The State Water Resources Control Board issued the curtailment notice June 12 to 114 water users who hold rights dating back to 1903.
It is the first time since a drought in the 1970s that senior water rights holders have been told to stop irrigating from rivers.
The Associated Press and Deke Farrow of The Modesto Bee contributed to this report.