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The water rights shuffle

Then, earlier this month, the State Water Resources Control Board sent a notice to Diverters of Surface Water alerting them to lower-than-average storage levels in reservoirs resulting from two years of record dry and warm conditions.  “For 2013,” they note, “the combined total precipitation for the months of January through May is the driest in about 90 years of record.”

Operators of the State and federal water projects are going to have to release supplemental stored water to meet Delta water quality standards and in-basin entitlements.  (“In-basin entitlements” refers to a class of holders of water rights in the Sacramento and San Joaquin river basins that includes cities.)  When they release that stored water, users of surface water with what are called Term 91 permits can’t divert water as they ordinarily would.  The Board warned that “water in the fall for uses such as planting winter crops may only be available to the most senior water right holders.”  If these conditions continue, even holders of senior water rights might see their diversions restricted.

In other words, the Water Board is approving water transfer petitions that create new uses of water at a time when existing water users are asked not to divert.  This means the Board is violating water rights law and the doctrine of prior appropriation.  This is because the Board regulates to benefit the water projects rather than to benefit ALL water rights holders.

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  • August 3, 2013, 7:23 pm

    In times like this, we are once again reminded of this admittedly inequitable, though legal provision supported by both the Water Code and the Racanelli Decision. All water users have a stake in this game and naturally feel slighted when Board actions go against their interests. Area of origin proponents for example, have always questioned why their claimed priorities can be superseded when the Delta is in “imbalance”. In-Delta interests question why temporary urgency transfers are allowed south-of-the-Delta (especially in years such as this) when such supplies could be retained for later instream flow, temperature, and water quality protection purposes. And, as noted recently, local purveyors diverting from terminal CVP/SWP reservoirs wonder aloud why the USBR (and DWR) continue to make deliberate releases from their reservoirs to meet downstream regulatory needs when reservoir water elevations are dropping to dangerously low levels and the upcoming WY is forecasting no relief in refill. Each interest group makes a strong claim for the preservation of their particular priority. Both the SWRCB and USBR are acting within the law, as unfair as that may at times seem. The solution has always been enhanced capture and storage of the annual winter yield. The fundamental rule in hydrology is that it is impossible to have a water supply and flood control issue in the SAME water year, unless…..your infrastructure is inadequate, which is precisely the situations we find ourselves in today. Evacuated flood storage from Folsom Reservoir this past winter (as mandated by flood encroachment rules) could have been “retained” for use today, IF, someone had the foresight to have built new upstream storage that would have reduced the necessity to draw Folsom down as far as the flood diagram required.