Big fines could be imposed on those who don’t stop diverting river water

jnsbranti@modbee.comJune 23, 2014 

Few of the 7,910 landowners who were ordered last month to stop diverting water from California’s rivers have complied. So the state is proposing to “put some teeth” into its emergency drought regulations.

The State Water Resources Control Board next week will consider imposing hefty fines on farmers and other water users to “ensure timely compliance” with curtailment orders.

Those fines could impact thousands of San Joaquin Valley irrigators who hold so-called junior rights to water that normally flows down river and streams.

That includes those who use water from the Stanislaus, Tuolumne, Merced and San Joaquin rivers.

Violators could be fined $1,000 per day plus $2,500 per acre-foot of water diverted. And farmers would have to stop using water before – not after – they go through the state’s appeal process.

After three years of drought, there’s simply not enough water for all to take what they think they’re entitled to, state officials explained. So they must protect what’s left for those who have California’s most senior water rights, which date back more than a century.

The water board “must move quickly to enforce these water diversion restrictions or risk losing the ability to effectively manage the scarce water supply and prevent harm to senior water rights,” a statement from the water agency contends. “Without the regulatory action, diverters could potentially delay compliance through procedural measures well into the dry season, or until no water remains.”

Some senior water rights holders, however, suspect the state wants to create new and unnecessary regulations simply to establish legal precedence as part of a power grab.

The water board’s staff insists that’s not true.

Board spokesman George Kostyrko said only about 20 percent of the 7,910 junior water rights holders have responded to last month’s order to stop diverting water. That’s well past the one-week deadline they were supposed to meet.

“This is a tool to enforce curtailment with those who have not responded. They would have to stop diverting water immediately,” Kostyrko said of the proposed new compliance rules. “It will put some teeth into existing regulations.”

Fairness of fines questioned

But officials from several of the region’s irrigation districts question whether those new rules are necessary or fair.

“The state’s premise is: You are guilty until you prove your innocence,” said Steve Knell, general manager of the Oakdale Irrigation District. He challenged the fairness of imposing fines and stopping water diversions to farms before farmers are allowed to appeal.

“While I’m waiting for my day in court, my crops are drying up,” Knell said. “That’s not much of a choice.”

Knell’s fear is that the water board plans to unnecessarily curtail water diversions for senior water rights holders, such as the Northern San Joaquin Valley’s irrigation districts.

“They’re drafting this new law and taking away the ability of water users to protest,” Knell said.

The state’s claim that these new fines and rules are necessary to protect senior water rights is not credible, according to Jeff Shields, general manager of the South San Joaquin Irrigation District.

“Where’s the problem? Where are the senior water rights holders they’re purporting to protect?” Shields asked. “I don’t like them adopting rules without evidentiary hearings (proving there’s a need to stop diverting water). This is just the state water board’s staff saying, ‘Because we said so.’ That’s a dangerous process.”

Proposal worries districts

Irrigation districts had known the water board planned to address water rights at its July 1 meeting in Sacramento, and they’ve been gearing up to fight any threat to their senior water rights. They see this latest proposal as a problem because it eventually could be applied to them.

“TID remains concerned about water rights curtailments and their possible effects on TID customers, both now and in the future,” Turlock Irrigation District spokesman Calvin Curtin said. “We are reviewing the draft regulation that was issued by the state water board over the weekend and will submit written comments.”

The Merced Irrigation District also is reviewing how the water board’s proposal might impact its water supplies. “The district has a number of overarching concerns, including the fact the (water board) is considering this action related to pre-1914 water rights, which is clearly outside of its authority,” Merced district spokesman Mike Jensen said.

Bee staff writer J.N. Sbranti can be reached at jnsbranti@modbee.com or (209) 578-2196.

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