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.