California’s drought regulators lose big case. What it means for state’s power to police water

California’s drought regulators have lost a major lawsuit that could undermine their legal authority to stop farms and cities from pulling water from rivers and streams.

With California in its third punishing year of a historic drought, an appeals court ruled Monday that the State Water Resources Control Board lacks the power to interfere with so-called “senior” water rights holders and curtail their diversions of water from rivers.

The case stems from orders imposed by the state board in 2015, during the previous drought, when it halted farms and cities throughout the Central Valley from taking water from the Sacramento and San Joaquin rivers.

A group of farm-irrigation districts centered in and around the Delta itself — the freshwater estuary that feeds vast farmlands and serves as the hub of California’s complex water-delivery network — brought the lawsuit challenging the state board’s actions.

What the ruling means for this drought

Less clear is whether the ruling, by the 6th Appellate District Court, affects the state board’s ability to govern water supplies during the current drought.

“It’s certainly a defeat for the state board,” said Brian Gray, a water-rights expert at the Public Policy Institute of California.

But Gray said the court’s ruling did suggest that the board could exercise its authority over senior rights holders by using emergency powers granted by the governor.

Earlier this year the board ordered roughly 4,500 farms, cities and other entities to stop taking water out of the Sacramento and San Joaquin rivers, the 1,100-square-mile watershed that provides about two-thirds of California’s population with drinking water. The board’s orders this year have included senior rights holders such as the city of San Francisco and the Modesto and Turlock irrigation districts, all of which pull water from the Tuolumne River.

The board, in a statement responding to the court’s decision, said the ruling doesn’t affect the agency’s “ongoing drought response actions, including curtailments of senior water rights.” The board said it used its emergency authority to issue its curtailment orders earlier this year, and the court’s decision doesn’t eliminate that authority.

Nonetheless, the board was clearly irked by the ruling and the potential threat to its authority.

“Water scarcity is one of the most important challenges facing Californians. Ensuring that water districts and others divert and use water consistent with the state’s water right priority system is critical to protecting public health and the delivery system for farms, communities and the environment,” the state board said. The ruling “shields the most senior water rights holders ... from certain enforcement actions.”

Senior rights holders are in the minority but include some of the largest water users in California, including the city of San Francisco.

Why some Californians have senior water rights

California’s water rights system is notoriously complicated but essentially boils down to how early a farm, city or other landowner claimed a water right.

The earlier someone claimed a right, the higher they are in the pecking order. Because the state board will first halt diversions from “junior” rights holders, having senior rights buffets a user from some of the agency’s curtailment orders.

The key date is 1914, when the California Water Commission Act took effect and the precursor to the state water board was established. Anyone holding rights that were claimed before 1914 is considered a senior rights holder.

The water board’s decision during the last drought to go after those with senior water rights was an important step to ensure there was enough water in the state’s rivers to protect near-extinct species of fish and to ensure the rivers don’t run dry, said Doug Obegi, an attorney with the Natural Resources Defense Council.

He said that while the ruling does leave the water board with authority to use its emergency powers, it’s clear that California lawmakers need to step up to give the state’s water cops the tools they need to make sure everyone is playing by the same rules.

“It is a call for the Legislature to strengthen and clarify the board’s authority,” he said. “So that we ensure that no one is above the law.”

Jennifer Harder, a water-rights expert at the University of the Pacific’s McGeorge School of Law, said, “The outcome is disappointing. The opinion unnecessarily interprets the Board’s authorities narrowly, which hampers statewide progress toward a sensible system that would benefit all water users .... In our drought-prone state it is self-defeating not to equip the Water Board with better tools than it has.”

The court ruling doesn’t cover the state board’s authority over two of the most significant water users in the state: the federal government’s Central Valley Project and the State Water Project, the system of dams and canals that bring water to much of the Central Valley, the Bay Area and urban Southern California.

Both projects were built well after the key 1914 date.

The ruling represents a victory for nine irrigation districts centered around the Delta — home to vineyards, tomatoes and other crops grown in one of California’s most productive agricultural areas.

A conglomeration of dozens of islands and tracts formed by the intersection of the Sacramento and San Joaquin rivers, the Delta is also a burgeoning population center. Besides serving farmers, Byron Bethany Irrigation District, which led the legal crusade against the state’s curtailment orders, also provides water to Mountain House, a community of 21,000 developed in the past 20 years by CalPERS, the big state pension fund.

Officials with Byron Bethany weren’t immediately available for comment Tuesday, but hold itself out as a fighter for water rights. “Byron-Bethany Irrigation District believes it is of the utmost importance to protect its pre-1914, senior water rights – a foundation for reliable water deliveries, for agriculture in California and ultimately, a secure food supply,” the district said in a statement to The Sacramento Bee last week.