A victory for holders of in-Delta water rights

The 2009 Comprehensive Water Package called for improved accounting of water diversions. The State Water Resources Control Board (SWRCB) got busy and focused on investigating in-Delta water rights only, and not the water rights of any other area.

The impetus for this investigation was a biased and targeted report by Stephen Wee, funded and filed by the San Joaquin River Group Authority (SJRGA). The State Board prosecution team was largely assisted and led in presenting the case to the State board by formal participants: Modesto Irrigation District, State Water Contractors and San Luis & Delta Mendota Water Authority.

Basically, a prosecutorial Dream team was compiled with the intent to end in-Delta water use and further weaken the economic engine of the Delta: agriculture.

A look at a graph on Historical Diversions from the Delta Vision report, reproduced in the California Water Plan Update 2009 as well, makes it clear that in-Delta diversions are a consistently small portion of total diversions over the past 57 years. The significant increases in diversion are from the state and federal water projects.

Last year, the SWRCB issued a draft Cease and Desist Order against the Delta’s Woods Irrigation Company (WIC) after having initially concluded that WIC did not have rights to support the amount (or rate) of diversions.

WIC was formed in 1909 to irrigate approximately 8000 acres and currently serves about 6000 acres. WIC disputed the SWRCB’s initial conclusions, which resulted in a hearing last summer on the issue of what water rights WIC might have. WIC asserted it diverted under its own rights and those of its landowners.

The SWRCB hearing officers were notified by certain landowners within WIC that they believed the process could result in adverse effects to them, and requested they be allowed to join the process. WIC and the other interested parties participating (who were attacking local water right holders) agreed, but the SWRCB stated that it would not do anything that would affect such third parties, and would issue a ruling only as to the rights of WIC. The SWRCB denied the landowners’ request to enter the proceeding.

In February of this year, the final SWRCB ruling in the WIC matter was a Cease and Desist Order which precluded WIC from diverting anything in excess of 77.7 cfs, and precluded WIC from diverting under anyone else’s claimed water rights unless it made a

further showing of those other rights. The ruling clearly adversely affects landowners within WIC’s service area who asserted their own water rights.

Some of these landowners brought suit in Stockton Superior Court claiming their due process rights had been violated by the SWRCB’s order. After all interested parties had briefed the matter, the court ruled that the Cease and Desist Order had indeed resulted in a denial of due process to the landowner’s and declared the order a “nullity.”

The landowners also asserted, as did WIC, that the SWRCB is without authority to regulate riparian and pre-1914 rights, but the court did not rule on that issue.

A review of the facts reveals a very clear case of denial of due process. Hopefully this latest setback in the attacks against local water rights will give the SWRCB pause to reconsider its unsupported policy to focus only on in-Delta diverters.

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