Senior water rights holders in Northern California went from the thrill of “complete victory” to the agony of defeat, all at the hands of a single judge in a two-week period.
Superior Court Judge Shelleyanne W.L. Chang told the State Water Resources Control Board three weeks ago that she was letting holders of California’s oldest, pre-1914, water rights ignore its letters curtailing their access. She said the state abused the constitutional due process rights of people by not giving them a hearing before they get whacked.
Attorneys for the water districts, which primarily serve Sacramento-San Joaquin Delta farmers, were jubilant, while the state said it just had to tweak the letter’s language. The state did that, sent out 9,000 new letters and ended up back in court. The judge liked the new letter.
“The July letter now rescinds this language of command that the court found violated petitioners' due process rights,” Judge Chang wrote, according to Courthouse News Service.
The new letters now make it clear that the state would very much like senior rights holders to stop using water because of the drought, but they can keep doing it—at the risk of paying a penalty.
The water board announced its first proposed fine (pdf) against a senior rights holder for illegal use of water on July 20. Byron-Bethany Irrigation District in the Sacramento-San Joaquin Delta area was told it would have to pay $1.5 million for diverting water for two weeks after being told to stop. The district provides water to 160 farms and the planned community of Mountain House (pop. 15,000), a decade-old exburb 60 miles outside of San Francisco.
Water districts complained that the board was still using “coercive” and offensive language in its new letters left over from the original letter. But the judge said, “It is not for this court to second guess the board and decide exactly how it should have rescinded the curtailment letters.”
Individual districts are free to contest their curtailments at administrative hearings. But those hearings are probably not going to be the last word on whether senior rights are broadly constrained for the first in history. State agencies are often given great deference by the courts in their application of the law, but the issue of whether senior water rights can be touched at all still appears headed for a legal showdown.