Are Water Rights Sufficient to Protect Water Users?

Drought water crops“The judiciary is the safeguard of our liberty and of our property under the Constitution,” said U.S. Supreme Court Justice Charles Evans Hughes in Elimra, New York in 1907.

That quote exemplifies the reason that five irrigation districts on tributaries to the San Joaquin River as well as the city of San Francisco filed lawsuits recently against the State Water Resources Control Board. They are defending their water rights. 

In December, ahead of the Water Board hearing, Governor Brown and Governor-elect Newsom both asked the Water Board to hold off and let the districts, the State, and the federal government finalize the voluntary agreements. But that didn’t happen and the problem is now in Governor Newsom’s lap as his Water Board will likely have to turn its attention to defending its decision in court.

“We file suit not because we prefer conflict over collaboration. On the contrary, we continue to encourage and participate in settlement discussions on our rivers, and support science on the Stanislaus. But we also have an indisputable responsibility to reserve our legal rights and protect our ag and urban customers,” said Peter Rietkerk, General Manager of the South San Joaquin Irrigation District (SSJID).

Unfortunately, sometimes, the courts are your only recourse.

The State Water Board’s decision on December 12, 2018 doubles the amount of water the State will take away from farms growing food, the parks and sporting fields where our children play, and even the water we drink from our taps at home and bubbling out of drinking fountains at schools. And if flow requirements can be imposed on the San Joaquin River they can be imposed anywhere.

The sad thing is there was an alternative available, but the Board has so far rejected it. Farmers in the San Joaquin and Sacramento valleys, irrigation districts, the Department of Water Resources, Department of Fish and Wildlife and the Bureau of Reclamation, worked collaboratively at the behest of both Governors Brown and Newsom, to propose a voluntary plan designed to quickly accomplish more for fish and the environment without the drastic harm water users expect from the water cuts.

Under these proposals farms and cities would still give up billions of gallons of water to the river during times that science tells us that it’s needed, as well as implement projects that improve habitat for fish, reduce predators and enhance ecosystems far beyond what the Board’s water-only plan could achieve. The voluntary proposals, expected to produce more salmon than the plan adopted by the State Water Board with less harm to the economy, would have been a win for all – farms, fish and folks.

“Our voluntary agreement will ensure water security and reliability, includes environmental improvements, enhances fish populations far beyond what is projected in the state’s current plan and most importantly, guarantees timely implementation,” said Modesto Irrigation District Board Vice President John Mensinger. “Their (the Board’s) plan threatens not only Central Valley ag and urban water users, but also the water supply of more than two million people living in the Bay Area.”

There is still an opportunity for the Water Board to adopt a voluntary path toward ecosystem restoration and faster solutions to restore dwindling salmon populations. The question is, will they do it or will former Supreme Court Justice Charles Evans Hughes words be put to the test again?

Executive Director, California Farm Water Coalition.

This article was originally published by Fox and Hounds Daily