Despite adverse court decisions the state is still aiming to take some of the El Dorado Irrigation District’s water rights, many of which predate the Water Commission Act of 1914 and even more predate the 1927 Fiegenbaum Act. That latter act exempted prior water rights from the due diligence requirement as the state applied for unallocated waters to use for the State Water Project and the Central Valley Water Project.
A Dec. 4, 2012, report from the State Water Master to the State Water Resources Control Board calls for the state to take control of all water rights, even those predating 1965 and predating the 1931 law protecting county-of-origin water rights. The technical term used by the State Water Master is Term 91. That provision would allow the state to force EID to surrender water to the state whenever it called for it.
The state tried to apply that term to EID’s water rights application for 17,000 acre-feet of water from the South Fork of the American River. This water is released from storage in four alpine reservoirs, diverted from the river near Kyburz and sent through 22 miles of canal, flumes and tunnels, all of which originally were built between 1874 and 1876. The water rights for this system — now called Project 184 — date to 1856.
When PG&E owned this project and the 21-megawatt powerhouse the State Railroad Commission ordered in 1919 that the electric company provide El Dorado County Water Users Association 15,080 acre-feet of water. When EID bought Project 184 from PG&E in 1996 it was able to claim an additional 17,000 acre-feet of water. The original state-filed application in 1927 had been for 70,000 acre-feet.
The state granted EID the 17,000 acre-feet in November 1996, but in 2001 decided to add Term 91 to it, making it subject to release for the Delta when called by the state. El Dorado County sued the state, saying it had no right to apply Term 91 to its 17,000 acre-feet of water rights. Concurrent with that the Sierra Club’s legal arm sued, claiming EID didn’t have a pre-1914 right to the 15,080 acre-feet. Those two suits dating from 2001 were consolidated and Judge Lloyd Connolly issued a ruling in 2003 favorable to EID. It voided the state water board’s action to apply Term 91 to its 17,000 acre-feet and also said the board had no jurisdiction to require EID to prove its pre-1914 water rights.
Despite this ruling, the State Water Master, with little legal basis, issued a report stating, “It is the recommendation of this report that the requirement to curtail diversions of released stored water be extended to all water rights holders on a phased basis pursuant to relative water rights priorities where the release of such stored water is being used to meet water quality standards.”
Delta Water Master Craig M. Wilson further specified “curtailment letters”, aka Term 91 notices, should be sent to pre-1965 and pre-1914 water rights holders.
EID General Counsel Tom Cumpston, told the board Jan. 14 that the Delta Water Master and a team of 30 enforcement officers were originally tasked with ferreting out illegal diversions and pumps in the Delta.
“Their own investigation found illegal Delta connections were not a problem,” Cumpston said.
“What the Water Master is suggesting has no foundation in law,” Cumpston said. He noted that the California Supreme Court has said that seniority is the foundation of water rights.
Imposing Term 91 on EID’s pre 1927 water rights “poses a fundamental threat to EID,” Cumpston said.
Altogether EID has 77,590 acre-feet of annual water entitlements, according to the 2012 update of the 2010 five-year water plan it submitted to the U.S. Bureau of Reclamation in September: 7,550 ACF of contract water from Folsom Lake, 15,080 plus 17,000 from Project 184, 33,400 from Jenkinson Lake in Sly Park and 4,560 from ditches and Weber Reservoir. Water rights to diversions from Slab Creek, Hangtown Creek and Weber Creek date back as early as 1853 – 160 years ago.
Additionally, 15,000 acre-feet of water was granted by an act of Congress named after its author, Vic Fazio. That water entitlement is still pending. Also in the future is a pending application for 40,000 acre-feet of water to fill space in existing reservoirs that the Sacramento Municipal Utility District is contracted to make available to El Dorado County. That contract also includes a drought storage agreement with SMUD to hold 15,000 acre-feet for EID.
Monday the EID board unanimously approved $196,875 for its share of expenses for the El Dorado Water and Power Authority’s pursuit of water rights for this SMUD reservoir storage.