July 10, 2015

An effort by state officials to stop some Delta farmers from diverting water during the drought amounts to a taking of private property rights without due process, a judge ruled Friday.

The decision cast doubt on the legality of thousands of similar cuts, or “curtailments,” that the State Water Resources Control Board has imposed on water users up and down the Central Valley over the past two months.

The news doesn’t mean those other water users can resume pumping away without fear of penalty. The state can still crack down on users who are taking water which, during times of shortage, belongs to those with older, more senior rights.

But the state would have to enforce the law through a more formal process, supporters of Friday’s decision said.

“It’s a complete victory,” said Stockton attorney Steve Herum, who represented the relatively small West Side Irrigation District in the case. “I think it has an impact on every curtailment letter that was sent (by the state), because of the coercive language that is in all of those letters.”

State officials began sending the letters on May 1, starting with newer water-right holders and working their way up to older, more senior users as the drought deepened.

The letters told water users to “immediately” stop diverting water because there wasn’t enough left in the rivers and streams for those with higher-ranking rights. The letters warned that if they did continue to take the water, users could face significant penalties.

This put farmers in a tough bind. They could defy the notices and continue to take water, risking fines, or they could allow their crops to die.

Several water districts sued and asked judges to grant a temporary “stay.” In response, the state asked for those cases to be moved outside of the Central Valley, delaying any such relief.
But the Delta farmers’ attorneys forced the matter to be heard by filing the West Side case in Sacramento County, in the water board’s backyard.

Defending against a possible stay, state attorneys began describing the curtailment letters as merely “informational” and “advisory” in nature. But in her five-page ruling on Friday, Superior Court Judge Shellyanne Chang found that wasn’t the case, saying the state’s argument “is not only misguided, it is also inaccurate.”

“Nowhere in this language do the curtailment letters assert that (the districts) are free to ignore the directive that they cease diverting water or that it is merely a suggestion,” she wrote.

Rather, the letters required water users to sign off on forms confirming they stopped diverting water — a taking of their property rights without a hearing, in violation of due process, the judge wrote.

Chang did not resolve a broader debate over whether the state has authority to regulate the most senior of water rights in the first place. Nor does her decision address Delta farmers’ claim that they should always be able to pump, drought or not, because there is always water in the tidally influenced estuary.

Instead, the judge’s decision focused on the process used by the state. And that’s been one of the biggest concerns, said Jeff Shields, general manager of the Manteca-based South San Joaquin Irrigation District, which filed a separate lawsuit against the state.

“The state has to recognize that these (water rights) are property rights — you can’t just go in there and take them,” Shields said Friday.

The immediate impact of the judge’s decision is limited. The order applies only to the West Side
district, as well as the Central and South Delta water agencies and the Woods Irrigation Co., the districts involved in that particular lawsuit.

Many of the central and south Delta farmers have been able to continue diverting this summer anyhow, because they have other senior water rights.

That wasn’t the case for West Side, which has been without water for about a week, Herum said. The decision allows the district to turn its pumps back on.

As for the more than 9,000 other curtailment letters issued across the Valley, Herum said he considers them all “equally unconstitutional.”

Still, rivers and streams are running at a relative trickle, and the judge’s ruling makes clear that under the law, the state can still crack down on possible illegal diversions, said Shields with the South San Joaquin district.

This time, however, the state must do so by examining specific cases, as opposed to issuing widespread curtailment notices to large numbers of growers, Shields said. The more formal process could take considerably longer, raising questions about what extent the state will be able to substantially curb water use.

“Hold a hearing, show us somebody with a water right that is senior to ours who is harmed, and we’ll honor that process,” Shields said.

A water board spokesman said in a statement that the board is reviewing the decision, and looks forward to the next hearing in the case, scheduled for July 30.