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We were just kidding

State water board tells court curtailment order has no teeth

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We were just kidding

New Melones Reservoir is now at 20 percent of capacity.

Photo contributed/


POSTED June 24, 2015 1:12 a.m.

The California Attorney General’s office stunned senior water rights holders in San Joaquin County Superior Court Tuesday by stating State Water Resources Control Board curtailment orders have no teeth.

“They essentially said we were just kidding,” noted South San Joaquin Irrigation District General Manager Jeff Shields  of the state’s threat June 12 that they would go after pre-1914 water right holders that continue to divert water and subject them to fines of up to $1,000 per day and prosecution in  court.

The filing by State Attorney General’s Office in the Banta-Carbona Irrigation District verses the California State Water Control Board argued that the Tracy-area water district had no legal standing to seek a cease and desist order for the state’s curtailment order regarding pre-1914 rights because the order was only “advisory in nature.”

That isn’t what press releases that the state issued or directives they sent to irrigation district and senior water right holders less than two weeks prior  stated.

In the filing Tuesday the state argues the notice did not create any penalty or fine for continued diversion of water. The state, however, said the exact opposite June 12 not just in printed news releases and Internet posts but also in interviews with electronic media.

It also stated that “before the State Water Board can impose civil liability under Water Code section 1052, or issue a cease and desist order under Water Code section 1831, against Banta-Carbona, it must file in superior court or hold an evidentiary administrative hearing, providing due process.”

In other words, the Attorney General’s office admits the state bureaucracy can’t simply seize water rights because they feel like doing so.

It is also the argument SSJID and Oakdale Irrigation District leaders used in their initial response to the curtailment order.

The Attorney General’s position has significant implications for SSJID as well as farmers in the South County and residents of Manteca, Lathrop, and Tracy plus the rest of California. As it stands now, the state is conceding they can’t legally imperil water supplies held by those with pre-1914 water rights unless somehow they can prove someone is being injured under law.

The SSJID is one of five irrigation districts along with San Francisco that are due in  Stanislaus County Superior Court today after filing a lawsuit challenging the state’s authority to curtail their century-old water rights.

That order had prompted Bryon Bethany Irrigation District to serve notice to the Mountain House Community Services District that they would stop sending water to the community of 10,000 people northwest of Tracy to comply with the state edict as of midnight on June 22. The district is Mountain House’s sole source of water.

A deal reached June 22 kept the water flowing after the Mountain House Community Services District agreed to cover all legal costs and fines Byron Bethany would incur fighting the state over diversion rights.

Meanwhile on Tuesday the SSJID board wrestled long and hard over a request from Mountain House to come to their rescue. After weighing the risk of penalties and litigation the board deiced to go ahead and commit to transferring 1,800 acre feet of water through Dec. 31 at the rate of five cubic feet per second.

That vote came even though at the time the SSJID board was operating under the state’s threat that they would be fined and prosecuted for transferring water,

 “It’s unbelievable,” Shields said of  the state water board essentially telling all of California they were either  usurping  water rights without first running it by the Attorney General’s office for an opinion or else knowingly knew they had no power to do so all along.

“This is not the way to handle an emergency,” Shields said of the severe drought that is now well into its fourth year.

Shields pointed only 22 percent of those with post-1914 water rights have complied with state orders.

Shields said the state might be better served trying to enforce curtailment orders first with those agencies and individuals that have a lower legal standing.

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