State issues first action to enforce a water rights curtailment

State regulators Thursday took another step in the escalating battle over drought-related curtailments of thousands of California water rights.

The State Water Resources Control Board issued a draft cease-and-desist order against the West Side Irrigation District of Tracy, which holds junior rights to some flows in the Sacramento-San Joaquin Delta.

The board alleges that inspectors found the district was continuing to withdraw water from the delta’s Old River even after it received a May 1 notice that there weren’t sufficient flows to meet the demand of junior rights holders in the delta. It is the first such enforcement action the board has taken this year.

If West Side doesn’t comply or request a hearing on the matter, the state board could adopt the order, subjecting the district to fines of up to $10,000 a day.

The board made the move less than a week after a Sacramento County Superior Court judge ruled against the board in a lawsuit filed by West Side and three other irrigation districts.

Judge ShelleyAnne Chang concluded that the May 1 curtailment notice violated West Side’s constitutional rights of due process because it amounted to a command to stop diverting. Before issuing such an order, the judge ruled, the board should have held a hearing at which the district could present evidence disputing the finding.

Chang’s decision applied only to the West Side case. But in its wake, the board is mailing revised notices to the 4,600 junior and senior rights holders who have received letters this year telling them to stop diverting because of the drought.

The new notices drop the curtailment language Chang cited. But they continue to inform the diverters that there isn’t enough water for them.

“The parties that are continuing to divert despite knowing that there’s no water available to serve their rights run the risk of being subject to board enforcement action,” said state board attorney Andrew Tauriainen. “The point is to provide a disincentive to [those] who may want to continue to divert.”

Steve Herum, West Side’s attorney, called the board’s action retaliatory. “It’s intended to chill the district and it’s contrary to democratic principle.”

Herum also argued that West Side has cut its diversions and is only pumping runoff that has flowed into the river from irrigated fields.

The state board contends that the district is diverting a mixture of field runoff and river water it has no right to under the current drought conditions.

Herum said the district was weighing its legal options, adding that it has no alternative water supplies this year. “This will cause financial ruin,” for district farmers, he argued.

If West Side does request a hearing to contest the order, it would be months before it is held, Tauriainen said.

In the meantime, he said the state board is making inspections to see if rights holders are illegally diverting flows from drought-shriveled rivers and streams.

“This is not the only enforcement case that will be coming soon,” Tauriainen added.

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