Lawyers, farmers criticize water board

By From page A1 | July 04, 2014

SACRAMENTO — The hearing on Tuesday by the State Water Board on the proposed emergency regulation governing water diversions attracted a large and vocal audience of several hundred.

Over 50 of them chose to address the topic, often on behalf of the organizations they represented with most opposed to the new regulation.

Among those speaking were a cross-section of agencies and individuals including the U.S. Bureau of Reclamation, California Energy Commission, California and the San Francisco Public Utilities Commissions, owners of vineyards and wineries, a cattleman’s association, the Capistrano Taxpayers Association, multiple water and irrigation agencies, the U.S. Forest Service, American Rivers, the State Air Resources Board, the Westland Water District, PG&E, sportfishing organizations and lots of landowners and farmers.

However, despite such a diverse group, a few major themes developed during the day as people critiqued the regulations and detailed the personal and financial losses that would occur if they could no longer count on a reliable water supply.

Earlier, during a presentation, the Water Resource Control Board staff estimated the cost of the curtailment at almost $84 million.

Peter Rieticerk of the Patterson Irrigation District, told the board that farmers in his area annually generate $38 million in revenue because they have a reliable water supply. The new regulation will bankrupt them because of the fines and will result in litigation, he said.

Dan Kelly, an attorney representing the Byron-Bethany Irrigation District, said growers were not planting because they don’t know if their rights will be curtailed. You need to let the growers know if they’re going to be cut off, he told the board.

Dino Del Carlo, a fourth generation farmer, complained about the timing of the curtailments. After investing $4 million to $5 million this year in his farm, he asked to be able to finish the crops he already planted, while Rudy Mussi said a curtailment order would bankrupt his family farm. Bret Warner, a farmer who brought his grandson to the hearing, claimed the regulation was a theft of senior water rights. Close to tears at times during his presentation, he suggested the answer to the water shortage was more storage.

Alan Lilly, an attorney for the Yuba County Water Agency, asked the board why the regulation referred to senior water rights but no one with senior rights had come forth and asked for protection.

“Is this instead about illegal diversions from the reservoirs?” he asked, implying the real reason for the regulation was to protect water in the state and federal reservoirs.

Dante Nomellini, an attorney representing the Central Delta Water Agency, maintained those with pre-1914 water rights had priority over the state and federal water projects and asked the staff to take a different approach, predicting the new regulation would end in a lawsuit. Another attorney, Tim O’Laughlin of the San Joaquin Tributaries Association, said there was a disconnect between the stated goal of the regulation and how it would actually work. “You already have the tools to address this issue,” he maintained, saying trying to protect stored water was misappropriation and that people in the Delta had no right to the water.

Gregory Van Pelt, an independent power operator, reminded the board that curtailments could affect power grid reliability as the flow of water was reduced, while Jonathan Knapp, an attorney with the San Francisco Public Utility Commission, hinted at legal action if the city’s water rights were jeopardized, saying he hoped SWRCB was not trying to set a precedent with the new regulation. Joseph Ray, an engineer with PG&E, suggested reservoirs be exempt from any curtailments of non-consumptive water.

Attorney Jeanne Zolezzi, who was representing multiple irrigation districts, said there wasn’t a lot of trust out there for what they proposed, the process lacked due process and too much authority was being granted to a deputy director at the State Water Board to decide who would and wouldn’t get a curtailment order. Paul Minasian, an attorney for the San Joaquin River Exchange Contractors, went further and accused the state water board of putting itself in the role of judge, police and terrorizer. “You don’t realize what you’re doing,” he said, calling the new regulation a “terror program” to terrorize people. “Why are the rest of us being netted into your reign of terror?” he demanded.

Robert Mehlhaff, an attorney for the Naglee Burk Irrigation District, said there was a lack of due process built into the proposed new regulation. “The curtailment at the beginning of the process is like shooting the person and then trying him,” he claimed. Those trying to defend themselves against a diversion order might end up self-incriminating themselves, a violation of the U.S. Constitution, he said.

Peter Kiel of the Alexander Valley Group, a collaboration of wine growers in northern Sonoma County, worried about sub-surface water rights since their water comes from wells that tap into the Russian River underflow. He also worried about what he said was a lack of due process in the new regulation. Ben Benumof, a lawyer representing the Capistrano Taxpayers Association, agreed, saying the State Water Board didn’t have the right to bypass the U.S. Constitution. John Herrick, with the South Delta Water Agency, said the new regulations included a process where the water user was found guilty before a hearing. He went on to charge that the regulation would protect nothing except the stored water in the state and federal water projects. “I’m not sure you have the right to do this,” he charged, asking “Who the hell are these senior right holders we’re protecting?”

The issue of cabins also attracted speakers, with Harold Thomas, representing 700 cabin owners in the national forest, and Barry Hill, with the U.S. Forest Service, saying many homes had already received curtailment notices. They cited health and safety concerns as well as the uses of the cabins during fire season as reasons to grant their owners exemptions from curtailment.

Abe Hathaway questioned if the board had the right to adjudicate pre-1914 rights and asked that those rights be excluded from the new regulation. Chris Scheuring with the California Farm Bureau, echoed those sentiments, saying the board didn’t have any authority over riparian or pre-1914 water rights.

However, as small a group as they were, the new regulation also attracted some supporters from the U.S. Bureau of Reclamation, Trout Unlimited, American Rivers, the Westland Water District and a nonprofit called the Public Trust Alliance. Ron Milligan of the USBR called it another tool in the tool box for the water board to use, while Richard Roos Collins of American Rivers said he supported the regulations, but suggested working out the details of how the process would operate before adopting it, saying a workshop on hydrology in the area would be helpful to everyone.

Contact Dawn Hodson at 530-344-5071 or [email protected] Follow @DHodsonMtDemo on Twitter.

Dawn Hodson

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