Monday, July 28, 2014

Outingdale: Possible state abrogation of water rights

From page A1 | June 13, 2014 |

It was standing-room only on Monday as a Stage 4 drought emergency was declared for Outingdale by the board of the El Dorado Irrigation District.

The action was taken following a May 27 decision by the State Water Resources Control Board requiring the immediate curtailment of nearly every water diversion made upstream of the Delta under a post-1914 appropriative water right.

According to counsel and staff at EID, the action by the state may portend a near-universal curtailment of water rights when the water board meets later this month.

EID currently serves approximately 200 customers in Outingdale exclusively through a post-1914 diversion on the Middle Fork Cosumnes River.

The state board’s order requires the district to curtail this diversion except to the extent necessary for human health and safety, there being no other available water supply with the maximum conservation having been implemented.

The state board’s order also requires the district to forego summer inflows to Jenkinson Lake that would otherwise be used to augment natural flows in Clear Creek and supply water to EID’s customers.

EID staff anticipate the primary impact of the order will be the need to bypass water that would otherwise fill Lake Aloha, which will further reduce hydropower revenues in 2014.

Fortunately the order by the state does not affect water already diverted to reservoir storage before May 27. That water can be used for consumption without penalty.

In order to maximize such storage, the district has been importing more water from the South Fork to Jenkinson Lake via the Hazel Tunnel. The downside of doing so, however, is that it reduces the amount of water available for hydropower generation.

EID General Counsel Tom Cumpston said he questions the legality of the May 27 order with the biggest problem being the lack of any evidentiary basis for such curtailments.

“No substantiation has been offered for the conclusion that all pre-1914 water rights must be curtailed to allow more senior rights to be fully exercised,” he said. “No watershed-specific analyses have been performed. The explicit rationale and clear effect of the order is to increase instream flows so that the reservoirs of the State Water Project and the Central Valley Project can release less stored water to meet water-quality and environmental requirements in the Delta.”

Cumpston also believes the May 27 order is legally inconsistent with California’s water-rights priority system because it curtails the rights of senior water rights holders in favor of protecting the big water projects, which have junior rights. Further, it is inconsistent with a 1999 state board ruling that the water projects, not senior water rights holders, are responsible for meeting Delta water-quality requirements.

EID staff noted the district is fortunate in that the bulk of its water rights portfolio consists of pre-1914 rights not affected by the state board’s May 27 order. However, if the state board takes further action to curtail all pre-1914 water rights, no matter how senior, the district’s 15,080 acre-feet water supply from Project 184 and its Ditch/Weber Warren Act Contract supply from Folsom Reservoir would both be in jeopardy of significant reductions.

In fact, EID is worried that very topic may be coming up at the June 17-18 meeting of the state water board where it may take additional action to curtail all appropriations in the Delta watershed, including even the most senior pre-1914 rights.

An early warning of the board’s intent was contained in the May 27 order that stated,”If current conditions persist, the state water board may curtail some pre-1914 and riparian water rights in the near future.”

According the Cumpton’s report, the executive director of the state board has already ordered his staff to prepare emergency water rights curtailment regulations for state board adoption “if possible.”

That led EID Director Dr. Dale Coco to comment, “I think we’re all about to become Outingdale.”

EID anticipates that a state board curtailment of all appropriative rights in the Delta watershed will set off immediate and bitter litigation between water agencies and the state. In response, Cumpston recommended that the district join and actively participate in such legal challenges. Authorization to do so was to be taken up later in closed session.

With consensus on the issue, the board voted 5-0 in favor of the drought emergency declaration for Outingdale.

In a separate action, the board ratified a continuing resolution of a Stage 2 water warning and emergency declaration for the district as a whole. The resolution was approved on a 4-1 vote with Director Greg Prada voting no.

However, a vote to add a 30 percent surcharge on water usage above 4,500 cubic-feet per billing period failed on a 3-2 vote with Directors George Osborne and Bill George voting for the surcharge and Directors Alan Day, Prada and Coco voting against.

Contact Dawn Hodson at 530-344-5071 or Follow @DHodsonMtDemo on Twitter.





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