Sent back to the drawing board by a judge, state drought regulators issued new water rights curtailment notices Wednesday to thousands of farmers and other Californians in an effort to keep a crucial water-use regulation regime on track.
Even with the changes, big legal challenges remain to the state’s effort to rein in water use.
The State Water Resources Control Board delivered notices to 4,600 rights holders telling them to stop diverting water from California’s rivers and streams. The notices are a rewritten version of letters sent to those same water rights holders earlier this year.
The earlier notices produced a potentially major legal headache for the water board as it tries to cope with the state’s fourth year of drought. Last week, a Sacramento Superior Court judge issued a temporary restraining order telling the board not to enforce curtailment notices issued to four Delta-area agricultural districts. Citing issues of due process, Judge Shelleyanne Chang said it was illegal to slash the districts’ water rights until each had a chance to defend itself in a hearing at the water board.
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Until this point, curtailing water rights has been a major tool for the water board in seeking to curb water consumption. The board has curtailed 9 million acre-feet worth of rights this year. An acre-foot is 326,000 gallons.
In her ruling, Chang said the original curtailment notices were coercive, telling recipients they had to file certifications “under penalty of perjury that they are no longer diverting water.” She disagreed with the state board’s argument that the notices were merely informational.
The new letters take a more conciliatory approach than the original notices. While they say water users “should be aware that they may be subject to enforcement if they do not stop diversions (from rivers) due to insufficient water supply,” they make it clearer that the notices themselves aren’t enforcement documents or legal orders.
“There is no order to stop taking water,” the board said in a statement. In addition, no one is required to certify that they aren’t diverting water, as was required before.
Legal experts said the rewritten notices appear to satisfy the judge’s objections.
“The board has done exactly what the court has asked for,” said Jennifer Harder, a water-rights expert at the University of the Pacific’s McGeorge School of Law.
But Scott Shapiro, a water-rights lawyer at Downey Brand in Sacramento, said major legal questions remain. In particular, it’s unclear whether the water board has the power to curtail so-called senior rights, said Shapiro, who isn’t involved in the case before Chang. Those are rights that originated before 1914, when California formally established its water rights system.
So far, Chang hasn’t ruled on that point. “There is considerable uncertainty on that issue,” Harder said.