A week after getting slapped down in court, California drought regulators went back on the offensive Thursday in their campaign to curb water use, launching a crackdown against a small irrigation district that allegedly took water illegally from a river in San Joaquin County.
The State Water Resources Control Board issued a draft cease-and-desist order threatening to fine the West Side Irrigation District, which serves farmers in the Delta, up to $10,000 for every day that it drew water from the Old River. Officials said it’s the first time this year that the board has initiated any drought-related disciplinary steps.
In a separate case, West Side was one of four irrigation districts that won a closely watched court victory last week against the water board. A Sacramento Superior Court judge issued a temporary restraining order preventing the water board from enforcing curtailment notices stripping the four districts of their ability to divert water. The judge said the state violated procedure by not giving the districts a chance to defend their water rights.
While the ruling was hailed by other water districts fighting the state board in court, state officials said it didn’t prevent them from taking action against West Side. Judge Shelleyanne Chang’s ruling made clear the board still had the power to police illegal water diversions, said Andrew Tauriainen, senior staff counsel at the water board.
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“We are not running afoul of the judge’s order,” Tauriainen said. “The court made very clear we have and continue to have the authority ... even against West Side.”
He said it’s a coincidence that the state is going after one of the districts involved in the court case, and insisted West Side isn’t being singled out.
“This won’t be the only enforcement,” he said. “There may be many more coming.” Anyone accused of using water illegally can get a hearing before the board, he said.
However, West Side lawyer Steve Herum said the state is pursuing a claim against the district because of its success in court.
“This is retaliatory,” Herum said. “They’re targeting the main plaintiff. They’re trying to chill the district’s exercise of its constitutional rights.”
He added that he doubts West Side can get a fair hearing from the water board.
Regardless of what happens to West Side, the action could ratchet up the pressure on farmers and others to comply with the state board’s curtailment notices. As the drought drags on, the board has issued curtailment notices to 4,600 irrigation districts and other users, warning them they don’t have water available to divert from California’s rivers despite their rights. Those notices affect a combined 9 million acre-feet, or nearly 3 trillion gallons, of water.
The judge’s ruling last week focused largely on the wording of the curtailment notices. Chang said the notices were “coercive” and read like legally binding orders that didn’t give West Side and the other districts a chance to plead their case before the water board.
On Wednesday, the water board issued revised notices to thousands of irrigation districts and other users in an effort to satisfy the judge’s objections. The new letters make it clearer that the notices are “informational” and aren’t legal orders.
The water board believes it could take action against West Side even without rewriting the curtailment notices, Tauriainen said.
State officials said inspectors discovered West Side employees were pumping water on May 18 out of the Old River, despite a curtailment notice issued by the board almost three weeks earlier telling West Side it couldn’t pull water from the river.
Herum said the water was pumped out of the river as part of a long-standing recycling program.