State info order affects EID

Michael Raffety

2-9-15

The State Water Resources Control Board has demanded information on “persons claiming senior water rights in the Sacramento-San Joaquin Delta watershed.”

That broad brush order directly affects the El Dorado Irrigation District.

The order follows complaints that senior water rights holders in the Delta were diverting water released from reservoirs by the state and the U.S. Bureau of Reclamation.

“This order applies to two EID pre-1914 rights:  Our 70-cfs direct-diversion right from the South Fork American River into the El Dorado Canal, and our 8,000 acre-foot storage right at Caples Lake,” said EID Counsel Tom Cumpston. “Both are part of EID’s overall 15,080 acre-foot pre-1914 consumptive entitlement from Project 184.”

“Given that the stated basis for this order is two 2014 complaints of unlawful diversion in the Delta, the State Board’s action to require pre-1914 and riparian water rights holders upstream of the big project dams to report is legally shaky,” Cumpston said. “We intend to comply, but reserve our rights to challenge the legal basis, should this information order be the precursor to something more coercive.”

In July the California Department of Water Resources and the U.S. Bureau of Reclamation, both holding junior water rights, alleged that senior water right holders in the south and central Delta were illegally diverting water stored and released by the State Water Project and the Central Valley Project. The two agencies asked the State Water Board to require Delta water users to provide proof of their water rights claims, or to curtail unauthorized diversions, the state water board stated in its press release.

The order, which the state said, applies to 1,061 water rights claims held by about 450 individuals in the Delta and the Sacramento and San Joaquin watersheds apparently swept up upstream water rights holder like EID.

The state is also demanding information on diversions made in 2014 and “projected 2015 diversions.” With a dry January and a snowpack reported by EID Jan. 26 to be at 30 percent of normal, making predictions for 2015 diversions will be sketchy at this point i the season.

Last summer the state water board issued a curtailment order for water right holders whose water rights came after 1914. That affected 8,500 junior water rights holders, including Outingdale residents in El Dorado County. They were limited to 68 gallons per person per day. That order has since been lifted following rains in November and December.

The state gave EID and the other 449 pre-1914 water right holders five days to send their information to the state.

The other complainant is the California Sport Fishing Alliance, which was primarily complaining about diversions by the Department of Water Resources and the Bureau of Reclamation at the Delta pumping station and the Friant project on the San Joaquin.

“Last year, the SWRCB debated whether or not to (try to) limit senior water rights holders in the Delta under the false proposition that in-Delta use was wrongfully taking (state and federal water) project storage water,” said John Herrick, Restore the Delta board member and counsel and general manager of the South Delta Water Agency. “In response, we showed the SWRCB that the Delta always has a supply for riparian and pre-1914 right holders, as the channels are never without water. The SWRCB responded that the water in the Delta would get worse absent the releases by the projects, and thus, in-Delta diversions were wrongfully taking that released water. We responded that a diminishing quality is irrelevant to the ability to divert under the law, that the projects are obligated under statute and regulation to maintain Delta water quality for us, and that the case law on point clearly shows that if you put your water into someone else’s supply (the project’s stored water), you can only remove it if it does not harm those who could have diverted absent the added supply — us.”

The order is signed by Barbara Evoy, deputy director of the Division of Water Rights of the State Water Resources Control Board.

A 15-page report dated Jan. 31 was released by the State Water Resources Control Board Feb. 6 when it e-mailed notice of its Feb. 17 meeting that will include a workshop of the report. The report’s aims suggest “near-term changes to the administration of the water rights priority system to improve effectiveness if dry conditions persist into 2015.”

The report called the water year that ended Sept. 30, 2014, the third driest on record in 119 years of record. Water managers use a water year that begins Oct. 1. Weather records, however, use a rainfall season that begins July 1 and ends June 30 the following year. With the latter method, the rain year 2013-14 is the fourth driest (19.45 inches) in 140 years of Mountain Democrat-PG&E records. The third driest was 1986-87 at 19.42 inches.

Currently, holders of pre-1914 rights, such as EID, are only required to report diversion statements every three years. The report calls for annual reports to the state water board.

The regulatory power of the state water board dates back 100 years to Dec. 19, 1914. Legislation in 1913 created the Water Commission Act of 1913, which the state’s voters approved Nov. 3, 1914. Appropriative water rights created before 1914 and recognized by California since 1851, do not require a license from the sate water board. They are termed “senior” water rights. All water rights licensed by the state after Dec. 19, 1914, are termed “junior” water rights.

The junior water rights were curtailed by the state during this past summer because of drought conditions. As of Jan. 23 the state sent out a “notice of potential curtailment” for 2015.

The board’s Water Rights Division performed 947 field inspections last summer to check on compliance with the curtailment order.

“The field investigations identified previously unreported claims of water rights, potential unauthorized diversions and unapproved changes, such as changes in the point of diversion or place of use that require additional follow-up activities,” the report noted.

“The field inspection program found many persons who received curtailment notices for a post-1914 right claimed a riparian or pre-1914 right for continued diversions. In many instances the division was previously unaware of the claimed right,” the report stated.

The division received 154 complaints last year compared to 54 in 2013.

The goals of the report is to adjudicate or otherwise account for all water rights, particularly riparian and pre-1914 rights, determine minimum in-stream flow requirements for all streams, and accurately track and measure in-stream flows and diversions.

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