California SWRCB Warns of Water Rights Restrictions

Yesterday, the California State Water Resources Control Board issued a Notice of Surface Water Shortage for 2013 addressed to all “Diverters of Surface Water and Interested Persons.” In it, the SWRCB reported on the record dry and warm conditions facing the state during the past two years. The SWRCB reminded water diverters that the California water rights system allocates water in order of chronological priority, and that water shortages could lead to restrictions on the exercise of some water rights in late summer and fall of 2013. The letter included a list of suggested actions for diverters whose water rights are curtailed, such as controlling conveyance losses, improving coordination with other local diverters, conserving water and using alternative water supplies.

The letter specifically stated that:

If water supply conditions do not improve, permit, license and registration holders may see their diversions restricted. It may even become necessary in some parts of the state to restrict more senior water rights, such as riparian rights or pre-1914 rights.

While it may be true that streamflow in certain parts of the state will be low enough to cut off diversions to all post-1914 appropriators—leading to restrictions on pre-1914 water rights, followed by riparian rights—this is an odd statement, as it appears to skip a lot of actions before jumping to the most senior and paramount rights. That is especially true given that the preceding paragraph primarily discussed conditions in the Sacramento River watershed. In that context, the SWRCB has attempted to restrict senior water right holders in the past, through imposition of Term 91 on water rights that were issued prior to 1978. That attempt failed, as the courts held that the SWRCB could not restrict senior rights in the Sacramento River watershed without working in reverse chronological order, in El Dorado Irrigation District v. SWRCB, 142 Cal.App.4th 937 (2006). One has to suspect that any effort by the SWRCB to curtail pre-1914 and riparian rights in 2013 will meet a similar fate.

2 Comments on “California SWRCB Warns of Water Rights Restrictions

  1. Yet again it is interesting for an Aussie to read about water management in the USA, Wes. As you know, during drought we would tend to cut back allocations on a more ‘across the board’ manner, consistent within water entitlement classes such as ‘general security’, ‘high security’ etc. Not sure it that is fairer than the US (or Californian?) system of chronological priority (that is probably a judgement call) but it does strike me as being more economically rational, especially when coupled with a good system of free-market water trading.

    • We certainly lack the infrastructure and institutional framework for free-market water trading. In California this year, there have been a group of trades on the Sacramento River system, which is our largest watershed in the state. But there is a significant challenge to such transfers right now based on infrastructure. We don’t have the ability to move traded water from the Sacramento River to uses in the Bay Area, Central Valley, Central Coast or Southern California, except in years when the State Water Project allocations are between about 30 to 40 percent. In other years outside that range, the SWP uses all the capacity in the infrastructure for itself, and the Department of Water Resources and SWP contractors have been very resistant to allowing anyone else to convey water through their facilities. By refusing conveyance, DWR believes it can obtain the water for free, rather than paying for it in a trade. California needs broad reforms in water management, many of which are institutional. What I appreciate most about Australian water management is the willingness to make substantial changes to institutions. While there is an effort by DWR now to build tunnels under the Delta, and that would help with conveyance, many of the problems are institutional, and there is no political willingness in the state to take that on, unfortunately.

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