Water lawsuits scream overhead

 There have been a slew of articles this past 10 days about California water-rights lawsuits following the state's announcement of its intention to "curtail" the rights of senior water-rights holders. There have also been articles that try to explain California water rights. And there have been articles about cities and towns under mounting water-supply stress and about farmers ignoring various orders to stop using various sources of water to which they believe they are entitled. Throughout is stated the generally agreed upon ratio that agriculture uses 80 percent and municipalities 20 percent of California water resources.
Meanwhile, the state Legislature managed to decide a long smoldering issue about vaccinations. It decided that it was in the public's clear interest that all public school children be vaccinated and that unvaccinated children must be home schooled, with very few exceptions. This decision was based on the idea that the Common Good was served by avoiding as much contact as possible with infectious diseases.  
By contrast, the Legislature allowed water policies to languish basically since the terrible political traumas caused by earlier droughts and the first peripheral canal initiative, led by Jerry Brown in his first terms as governor, until the Phony Drought of 2009 brought to us by Westlands Water District, the Latino Water Coalition, Our Hun, Gov. Arnie, FoxNews, and other birds of a feather.  In this manmade drought, the governor was able to force through a bill for a water bond for $11-billion, considered by enough people to have been the most outrageously pork-laden bill of its era so that it never made it to the ballot box. But when it came to the Hun's successor, Jerry Brown, back for a second pair of terms, he overhauled it, chopped it down to $7.5 billion, and it passed in 2014 when we were in the third year of the Real Drought. (The pork is reported to be more modest now.) Now we are in the fourth year of that drought and Brown's thirst for a peripheral conveyance by tunneling of Sacramento River water under the Delta to the north-south canals, though unquenched for now, remains a daily threat to the environment of the Delta.  
The present stance of the two main parties to the confect at the moment, farmers v. the state, is that farmers are ignoring the state's orders not to use surface water and pumping groundwater as fast as they can find drillers to drill wells; meanwhile the state, which has cracked down hard on municipalities, at least in terms of its demands for reductions if not enforcement of those demands, seems to be more tentative with farmers, whose water lawyers (at least of past generations) wrote most of the state's water law.
Meanwhile, environmental groups have sued both the state and federal resource agencies to try to protect endangered Chinook salmon, Delta smelt and other species from over pumping of the Sacramento-San Joaquin Delta for agriculture and Southern California residential consumption.  While this suit is clear enough as far as it goes, we question whether it is broad enough for the times we are in.
We ask whether the main question here is, once again, the direct confrontation of private property rights and public resource law. Ever since environmental law was enacted, both sides have veered away from direct confrontations on this matter although it came very close to occurring in a 2002 US Supreme Court case called Borden Ranch v. United States Army Corps of Engineers.




Print this Page
Case Basics

Docket No. 
Borden Ranch
United States Army Corps of Engineers
Decided By 
Rehnquist Court (1994-2005)
537 U.S. 99 (2002)
Tuesday, December 10, 2002
Monday, December 16, 2002


Timothy S. Bishop
(Argued the cause for the petitioners)
Jeffrey P. Minear
(Department of Justice, argued the cause for the respondents)


Facts of the Case 
In 1993, Angelo Tsakopoulos purchased the Borden Ranch, an 8348-acre ranch in California. Tsakopoulos planned to subdivide the land into parcels for cultivation as vineyards and orchards. Because a dense layer of material prevented water from reaching the depths necessary to cultivate vineyards or orchards, Tsakopoulos intended to "deep rip" the soil. Deep ripping has a dramatic effect on the character of a wetland area. The Corps of Engineers and the Environmental Protection Agency informed Tsakopoulos that he was not to deep rip protected waters without a permit. Ultimately, the District Court found that Tsakopoulos had violated the Clean Water Act multiple times and imposed a substantial fine. The Court of Appeals affirmed in relevant part.
Does deep plowing ranchland to plant deep-rooted crops constitute the "addition" of a "pollutant" from a "point source" so as to fall within the regulation of the Clean Water Act? Is deep plowing ranchland which is farmable in its natural state to plant deep-rooted crops statutorily exempt from regulation under the Act's exemption for any discharge from "normal farming...activities such as plowing?" Does the Act's civil penalty section authorize assessing the maximum daily penalty for each time a plow crosses a seasonal drainage feature, without regard to the number of days when such activity occurred?
Borden Ranch v. United States Army Corps of Engineers - Oral ArgumentBorden Ranch v. United States Army Corps of Engineers - Opinion Announcement
Decision: 4 votes for United States Army Corps of Engineers, 4 vote(s) against
Legal provision: Federal Water Pollution Control (Clean Water), plus amendments
In a per curiam opinion, the Court affirmed the judgment of the appeals court by an equally divided vote. Justice Anthony M. Kennedy took no part in the consideration or decision of this case.
There are a couple of peculiar features about this case that bear noting. First, although decided on a very narrow interpretation of the CWA statute, concealed within that is the confrontation which Tsakopoulos was sufficiently reckless enough to provoke. A widespread rumor at the time had it that he felt he had Kennedy's vote because Kennedy was an old friend from Sacramento.
When Kennedy recused himself, the court split evenly and, according to the rule in such cases, the respondent Army Corps prevailed.
The decision was made "per curiam," by the court as a whole without individual written opinions.  The whole affect was to leave the dangerous issue for another day.
But if state and federal resource agencies cannot or are afraid to use the regulatory authority that by law they possess to defend the public against California agribusiness that is asserting it is entitled to a wholly new kind of agriculture never known on the face of the earth -- Totally Risk Free -- including the right to extirpate species at will and deprive a growing number of poor citizens in the main farming region of fresh, unpolluted drinking water.
There are two bases for the state's protection of the resources from the entitled, panicked farmers: the principle of Beneficial Use articulated in the California State Constitution and the  Public Trust Doctrine.  
SEC. 2.  It is hereby declared that because of the conditions
prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare.  The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not
and shall not extend to the waste or unreasonable use or
unreasonable method of use or unreasonable method of diversion of water.  Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which the owner's land is riparian under reasonable methods of diversion and use, or as depriving any appropriator of water to which the appropriator is lawfully entitled.
  This section shall be self-executing, and the Legislature may also enact laws in the furtherance of the policy in this section






Public Trust

As increasing emphasis is placed on protecting instream uses – fish, wildlife, recreation and scenic enjoyment – surface water allocations are administered under ever-tightening restrictions, posing new challenges and giving new direction to the State Board’s water right activities.
Under the public trust doctrine, certain resources are held to be the property of all citizens and subject to continuing supervision by the State. Originally, the public trust was limited to commerce, navigation and fisheries, but over the years the courts have broadened the definition to include recreational and ecological values.
In a landmark case, the California Supreme Court held that California water law is an integration of both public trust and appropriative right systems, and that all appropriations may be subject to review if “changing circumstances” warrant their reconsideration and reallocation. The courts also have concurrent jurisdiction in this area. At the same time, it held that like other uses, public trust values are subject to the reasonable and beneficial use provisions of the California Constitution.
The difficulty comes in balancing the potential value of a proposed or existing water diversion with the impact it may have on the public trust. After carefully weighing the issues and arriving at a determination, the Board is charged with implementing the action which would protect the latter. The courts also have concurrent jurisdiction in this area. As with all the other pieces of the California water puzzle, allocating the limited resource fairly and impartially among many competing users represents one of the Board’s greatest challenges.
These two values, beneficial use and the public trust, are intended to orient the three branches of government when complex issues of resource use arise that threaten to upset the current "balance" between citizen and citizen and citizen and wildlife. We put balance in quotes to memorialize one outstanding aspect of the California natural habitat situation, the often repeated notion that "95 percent of the wetlands are gone," a statement about 20 years out of date. Yet baselines should not be as important -- given that they can lead to endless delaying wrangles among experts in courts -- as the values contained in the principle of beneficial use and the doctrine of public trust.
However, the tail wagging this dog of drought is going to be private property rights v. government water-curtailment orders.
Are they legal? Really, this question contains another of more basic importance: Does the California public have the right in California or federal law to defend its water supply against a relatively few huge consumers of water for export-led agricultural growth?  Standing next to that question is this: Do endangered species have the right to adequate habitat to survive even in drought or should we force their extinction in the name of export-led agricultural growth?
Will the government have the will to enforce its own laws and regulations? The state and federal resource agencies in California have a miserable record and the present environment is the result of their cowardice in the face of political pressure from special interest groups. Environmental law, at least in California, is in its own category: you might call it "law-lite."
At the moment, some state and federal resource agencies are being sued by special interests for threatening to enforce curtailment orders and other agencies are being sued by environmental groups -- as is far more frequently the case -- for not enforcing law and regulation. Attorneys for government agencies try to protect those agencies; they do not work for the public. And the first thing they will say is that the agencies lack funding and staff to enforce the sort of regulation required this summer.
So, with these sorts of questions in mind as we return to the legal phase of the Water War of 2015, a preliminary question must be: How much difference will it make how judges rule? The damage has been done and it will continue because California agribusiness is far too big and mighty to have anything like a public conscience. All it can do is project power through the politicians, lobbyists and lawyers it owns. -- blj

“This is our water,” Oakdale Irrigation District General Manager Steve Knell said in the news release. “We believe firmly in that fact, and we are willing to take on the state bureaucracy to protect that right.” -- Kevin Valine, Modesto Bee, June 18, 2015
Some California farmers say they face financial ruin under orders to stop pumping river water to irrigate their crops this summer amid the state's relentless drought, according to a lawsuit filed Thursday..."The water board has simply exceeded its jurisdiction in its eagerness to control all water in the state," said Jeanne Zolezzi, Banta-Carbona's attorney. "It's overreaching. They feel like they have to do something or be criticized." --Scott Smith, Associated Press, June 18, 2015

Mother Jones
Want To Get Rich? Become a Water Lawyer in California
California regulators are finally trying to fix the state's insane water rights system. So now they're going to get sued.
Nick Stockton
Want to get rich? Move to California, become a lawyer. Most important, specialize in water, because as the state's drought drags on, every drop of coastal rain, every flake of Sierra snowpack, and every inch of reservoir water becomes both more valuable and more contested. Before long you'll start counting rain drops—every one that fails to fall will ring cha-ching.




California Has Cut Water to Some Farmers. What Exactly Does That Mean?

The latest windfall to California's legal community came Friday, when the State Water Resources Control Board announced it was cutting certain historical water rights—held by some farmers, communities, and companies for more than a century. In a normal state with a normal drought, this wouldn't be too much of an issue. But California water policies are so old (and so unsuited to the state's desert ecosystem) that they might be outside the jurisdiction of the present-day water board. With barely a weekend for curtailment news to simmer, the summer air is already thick with lawsuit rumors.
"California has the most complex system of water rights in the world," says Buzz Thompson, a legal expert in said system at Stanford University. The state's problems trace back to its earliest days. In order to take the stress out of drafting up a constitution from scratch, California's founders adopted English Common Law, and customized it with caveats to fit their needs. Unfortunately, they didn't bother amending the Common Law rules on water allocations.
"California has the most complex system of water rights in the world," says Buzz Thompson of Stanford University.
The English, and thus Californians today, used a system called riparian law: You are allowed to use a reasonable amount of any tributary, creek, stream, or river that abuts or bisects your land. This worked great in rainy England, veined with waterways. "That type of system of makes no sense in California," says Thompson, "because there is a lot of land through which no river or stream passes."
If you want water to run through your land in California, you have to dig a path for it yourself. The necessity of canals and pipes led to an irrigation-based water rights system called prior appropriation. Under this system, you are allocated a reasonable amount water from the source from whence you diverted, as long as you put it to good use.
Here's where things get ridiculous. The system for establishing rights to those flows was—prior to 1914—absolutely bananas, leading to a lot of inappropriate water usage in a state that was, and remains, essentially a desert.
To lay claim to running water back then, all you had to do was post and record a notice of the diversion. In 1901, the mayor of San Francisco used this law to claim the Tuolumne River by posting a note on a tree. The state finally figured out its own water scarcity in 1914, when it passed a law requiring any new claims to submit an application to a state-controlled board (now known as the State Water Resources Control Board).
Literally kept in an old safe in the back room of an office building in Sacramento, these slips of paper determine how much water each rights-holder is due. More importantly, they determine the order in which the rights holder gets to drink. And that's determined historically: First in line, first in law. "The whole system was created through action on the ground rather than someone making a legal regime and then codifying the system," says Leon Szeptycki, the director of the Water in the West program at the Stanford Woods Institute for the Environment.
Setting up a first come, first serve water system in a desert is pretty insane. (For one thing, it creates an uneven patchwork of water haves and have-nots.) What's crazier is that political pressures at the time meant the pre-1914 allocation and riparian rights got grandfathered right past the whole thing. That's right: There are people in California whose right to water came from putting a piece of paper on a tree, and those rights are some of the most senior in the state. And they don't just belong to people. Corporate farming conglomerates, sprawling rural irrigation districts, several cities, and even the state's Department of Fish and Wildlife have pre-1914 water rights.
In 1901, the mayor of San Francisco claimed the Tuolumne River by posting a note on a tree.
Which brings us to last Friday. This move restricts access to water rights holders whose claims date from 1903 to 1914. (The state had already curtailed all post-1914 rights). Thompson says the agency's move is both expected and incredibly historic. Expected because without precipitation the state is forced to cut off water from senior rights holders. Historic because the State Water Resources Control Board is a fairly cautious agency that does not like being sued.
"The most important thing about the most recent curtailment order is it reflects the depth of our current drought," he says. In response to Friday's announcement, many of the pre-1914 rights holders announced plans to sue the water resource board because their rights predate the existence of the board. In fact, the State Water Resources Control Board's charter states that it only controls permits that come after 1914.
On the other hand, the board's charter does not prevent it from curtailing pre-1914 rights, neither riparian nor appropriated. Further, there are several state statutes giving the board the authority to police both reasonable uses of water and illegal diversions. "Those statutes as well as other legislative and legal decisions I think provide the board sufficient authority to issue the type of curtailment orders that they did," says Thompson.
And as long as the drought continues, these curtailments will continue to reach back in time; all the way to the most senior rights holders, whose allotments trace back to the Gold Rush.
But even though Governor Brown teased an overhaul of the state's allocation system earlier this year, legal experts doubt this is possible. That's because California's water rights knot is enshrined in the state's constitution. Any challenges would probably have to be backed up at the federal level.
Caught between the calcified reality of the drought and the calcified words in the state's constitution, the curtailments will probably continue—and the lawsuits will follow. And like we've said before, any explanation of California's drought is always incomplete. Even if the state does win its case, enforcing the curtailments is an entirely different dilemma, with woefully outdated and outclassed methods of tracking. These conflicts aren't going away anytime soon. Which reminds me: Feel free to tell your kid to study water law too.
6.  Urban Water Saving Won't Help Much

Even with Governor Brown's water reduction mandates, political experts at a California think tank say conservation efforts will not be enough to combat the effects of drought.
Officials at Stanford University's Hoover Institute say the main problem with a conservation-only policy is that urban water use only accounts for 10 percent of the state's available water.
"So even if tomorrow every single Californian woke up and decided they're not going to drink water, they're not going to water their lawns, they're not going to take any baths, etc, you'd only see total water use drop by 10 percent statewide," said Hoover Fellow Carson Bruno.
Bruno believes the state's water storage system needs to be upgraded and the system of senior-water rights needs revision.
"Rights holder have to use the water for beneficial use," Bruno said. "However the definition of beneficial is very vague making a lot of rights holder very wary of trading that water for fear of losing that water."
Bruno says California's leaders need to start acting as if this drought is the new normal.
Modesto Bee
Modesto-area irrigation districts sue state over water restrictions

Modesto-area agencies band together in lawsuit
Local official says state did not honor districts due process rights

More drought-related restrictions could come
Kevin Valine
Modesto-area irrigation districts are suing the State Water Resources Control Board after the agency last week curtailed century-old water rights for some of them.
Attorneys representing the Oakdale and South San Joaquin irrigation districts as well as the San Joaquin Tributaries Authority filed the lawsuit Friday in Stanislaus Superior Court. The authority consists of the Oakdale, South San Joaquin, Merced, Modesto and Turlock irrigation districts and San Francisco, which owns and operates the Hetch Hetchy Reservoir on the Tuolumne River in Yosemite National Park.
With California in a fourth year of a dismal drought, the water board announced June 12 that it was curtailing the rights of more than 100 senior rights holders in the San Joaquin and Sacramento watersheds and Sacramento-San Joaquin Delta. Those water rights predate the beginning of California’s permitting process in 1914, according to a news release from the agencies that filed Friday’s lawsuit.
The Oakdale, South San Joaquin and Merced districts were among those affected by the water board’s announcement. SSJID General Manager Jeff Shields said the curtailment notice means the districts can use only the water they had stored in reservoirs but can’t have access to additional water flowing into the reservoirs. Those violating the notice face a penalty of $1,000 per day and a $2,500 for each acre foot of water diverted, according to the lawsuit.
District officials question whether the state has jurisdiction over the pre-1914 water rights. The state last week curtailed rights secured from 1903 to 1914.
“This is our water,” Oakdale Irrigation District General Manager Steve Knell said in the news release. “We believe firmly in that fact, and we are willing to take on the state bureaucracy to protect that right.”
Shields added that the state did not protect the districts’ due process rights by officially notifying them of its intention or provide them with the opportunity to speak at a hearing. Shields said he learned of the state’s decision when the water board held a news conference announcing the curtailments.
“The State Water Resources Control Board has a difficult challenge to manage a critically deficient water supply, but that challenge does not trump constitutional protections of due process and property rights,” Shields said in the news release.
He said the irrigation districts are asking that state not be able to proceed until the districts have been able to make their case in court.
Water board spokesman George Kostyrko said in an email that “we typically don’t comment on pending litigation. We typically will file a response first with the court, before commenting on our position.”
Last week was the first time since 1977 drought that the water board curtailed water rights predating 1914, when the current system was established. Districts with pre-1914 rights had been in better shape than others during the drought, though their farmers are seeing considerably less water than in better times.
The water board indicated last week that even older rights could be affected if conditions do not improve, including those held by the Modesto and Turlock irrigation districts. MID officials are keeping a close eye on the situation.
“We are assessing the full scope of this action and any resulting impacts to MID,” spokeswoman Melissa Williams said in an email. “It’s doubtful that these curtailments will impact MID’s irrigation operations during the 2015 irrigation season.
“However, we’re concerned with senior water rights curtailments and the unquestionable impacts they will have on our region as we continue to struggle through this unprecedented fourth consecutive critically dry year. We will continue to defend our senior water rights for the benefit of the customers we serve.”
Associated Press
California Farmers Told to Stop Irrigating Seek Court Order

Scott Smithhttp://abcnews.go.com/US/wireStory/california-farmers-told-stop-irrigati...
Some California farmers say they face financial ruin under orders to stop pumping river water to irrigate their crops this summer amid the state's relentless drought, according to a lawsuit filed Thursday.
The Banta-Carbona Irrigation District in Tracy wants a judge to suspend the curtailment order issued by the state Water Resources Control Board last week. The order stops pumping for 114 water users who hold some of the strongest water rights in one of the country's prime farming regions.
"The water board has simply exceeded its jurisdiction in its eagerness to control all water in the state," said Jeanne Zolezzi, Banta-Carbona's attorney. "It's overreaching. They feel like they have to do something or be criticized."
In its fourth year of drought, California residents and businesses statewide are required to reduce their water use by 25 percent.
The state on Friday issued a round of historic orders, called curtailments, hitting water users with senior water rights that date back to 1914 and earlier. They have some of the most iron-clad access to the state's rivers. It's the first time since a 1977 drought that California has directed a significant number of senior water rights holders to stop pumping.
State water board spokesman George Kostyrko declined to comment on the lawsuit. The board's chair, Felicia Marcus, has said she welcomes litigation to settle longstanding questions over the board's powers.
Zolezzi said California's water rights system is designed to be self-regulating, so water users file complaints against one another. Their disputes are to be settled in court, she said, adding that state water board doesn't have the authority it is now asserting.
The board's order also comes with devastating fines of $22 million a month for Banta-Carbona if it continues pumping, or $800 million in lost orchards and vineyards if farmers within the district comply and let their crops wither and die, Zolezzi said.
The state rejected Banta-Carbona's offer to reduce its water use by 35 percent, Zolezzi said. Banta-Carbona represents a fraction of the water users who received curtailment orders, but more lawsuits from other irrigation districts are expected to follow.
San Francisco Chronicle
New round of big state water cuts to hit San Francisco
By Kurtis Alexander
State water officials on Friday are expected to tell more farms, irrigation districts and even some cities that they need to stop drawing water from rivers and creeks in light of the drought, putting a bigger dent not only in California’s agricultural reserves but in drinking water supplies.
San Francisco, which was among water rights holders contacted by the state water board Thursday, was warned that the Bay Area’s rights to divert pristine Sierra water into reservoirs for household consumption could be restricted.
City water officials say there’s plenty of water in reservoirs now, including Hetch Hetchy in Yosemite, that won’t be affected by the restrictions and can meet the needs of 2.5 million customers for at least the coming year. But the threat of an unprecedented notice to stop filling reservoirs further is a stark reminder of the vulnerability of the region’s supplies after four dry years.
Officials with the State Water Resources Control Board declined to comment on any upcoming directive.
The board’s curtailment notices are targeting water rights holders whose claims on rivers and creeks have long been considered untouchable. On June 12, the state water board told hundreds with water rights dating before 1914, the year that California began permitting for water, to restrict their draws. More senior rights holders are expected to be hit with the directive Friday.

The demand has not set well with these water rights holders, most of whom have never been cut back before and don’t have an alternative supply. In the Central Valley, scores of farmers are having to fallow fields or let crops die.
Many senior water rights holders contend the state doesn’t have the authority to tell them to stop pumping water since their claims predate the state’s permitting requirements.
At least three lawsuits against the state have been filed since the water board announced the first round of pre-1914 curtailments two weeks ago. Some of those with senior claims, which include farmers, water districts, private companies and local governments, have threatened to continue drawing water in spite of the demands.
Officials with the San Francisco Public Utilities Commission have not said whether they will contest any restrictions that come down Friday, but the agency has said in the past that it will staunchly defend its rights to draw water in the Sierra.
Which of the agency’s handful of water rights in the Tuolumne River watershed will be curtailed was not clear Friday morning. City water officials were scrambling to take inventory of their century-old claims.
Until now, the state board has told water rights holders back through 1903 that they could be penalized for pumping water. The restrictions apply to water users in the Sacramento River and San Joaquin River watersheds, as well as the delta — which is where most of California’s water comes from.
The notices Friday were expected to target those with even older water rights.
California water law requires restrictions to be levied in order of the seniority of the water claim.
San Francisco’s right to divert water from the Tuolumne River into Hetchy Hetch Reservoir dates to 1902.
The water is pumped more than 150 miles to the Bay Area, where it serves the taps of not only San Francisco residents but many communities in the region.
State penalties for unauthorized water diversions include cease-and-desist orders, a $1,000 fine for each day of pumping and a $2,500 fine for every acre foot of water that is illegally drawn.