Water Rights Curtailments in California – How Deep Will the Cuts be in 2015?

Since Governor Jerry Brown announced sweeping new mandatory water reductions in an executive order in early April, the news media and blogging communities have been quick to point the finger at many different types of water users as the “culprit” and “poster child” of the drought. As I mentioned in my last post, new land development is now in the crosshairs of water issues in the state. In addition, articles have pointed the finger at everything from swimming pools, green lawns, almonds, rice, bottled water and breweries in the Golden State, saying that they all have been a contributor to the State’s declining water supplies.

In times of drought (and if there is one thing that the news media can agree on, it is that we certainly are in a period of drought), there are not enough water supplies to fulfill the needs of every water user. As such, it came as no surprise that on April 23rd, the State Water Resources Control Board issued curtailment notices to junior water rights holders mainly in the San Joaquin River watershed for the second year in a row. The Board issued the curtailment notices approximately five weeks earlier than last year, and the notices also hinted that senior water rights holders in these basins may receive curtailment notices as well later this year.  California has not curtailed senior water rights since the 1970s. It is clear that the drought is putting even the most “secure” (I use that term relatively) water rights on a shaky foundation. How deep will the cuts in California’s water rights go? And more importantly, what will the implications be for California’s century-plus old system of water rights? I will explore both issues in this piece.

A Short Primer on California Water Rights

Water rights in California are incredibly complex, and books could be written on this one topic alone. However, a quick overview of how water rights in the state works will provide an important background to this piece. Water rights generally fall into two categories: groundwater rights and surface water rights. Groundwater rights give the holder (usually in an adjudicated basin) the right to extract a certain amount of water out of that basin. This topic is a discussion for another piece. The water rights that are subject to a curtailment order relate to surface water rights. A surface water right (of which there are a few types) generally allows the holder to divert a certain amount of water from a particular river.

When there is not enough water to satisfy everyone’s needs, some rights holders must go without some of their entitlement (or all in the instance of extreme drought like we are facing now). But not all water rights in California are created equal. California has a system of water rights known as “first in, first right,” meaning that the first claim to a river is the most “senior” and has the highest priority. Some of these senior water rights  go back as far as the days of the gold rush in the 1850s. The year 1914 is a key year in the Golden State that demarcates the seniority of water rights. (Please see the California Water Resources Control Board  page for a more detailed discussion of the history of water rights in the state) Until 1914, water appropriators did not have to file formal paperwork or receive permits to remove water from rivers and streams. The increased need for water as the state grew caused disputes between claimants to the state’s surface water. The Water Commission Act of 1914 established a permitting process that would formalize how water users would be able to divert water from rivers and streams.

However, the Act did not erase the water rights in place prior to the legislation’s passage. As such, these “pre-1914” water rights are the most senior water rights in the state. Water rights granted after the passage of the Water Commission Act became “junior” water rights, and hold a lower priority to the senior water rights. However, regardless of how “senior” particular water rights may be,  the amount of water that Mother Nature provides the state still dictates what claimants can draw from surface water sources. The current drought is challenging the very foundation of this system of water rights.

How Deep Will the Curtailment Orders Go?

On April 23rd, the California State Water Resources Control Board issued a curtailment order, effective immediately to all post-1914 holders of water rights in the San Joaquin Watershed. The curtailment notice follows looks similar to last year’s curtailment order, with one important difference and one important similarity. What’s different? Last year’s curtailment notice came in late May, almost five weeks after the Board issued this year’s notices. However, similar to last year, the 2015 curtailment notices also warn that senior water rights holders may receive curtailment notices later in the year. A late-April storm brought some much needed rain to many areas in California and up to a foot of snow in the Sierras. Unfortunately, this storm will do little to put a dent into the exceptional drought our state faces.

Without further storms, the State Water Resources Control Board has warned that senior water rights holders may face curtailment orders.  An article in The Capital Press points out that stop diversion orders in the San Joaquin “likely” will include water users with pre-1914 rights, but it is impossible to know right now how deep the cuts will be. “More curtailments are coming,” said George Kostyrko, a State Water Resources Control Board spokesman. “It is likely that some seniors on some watersheds will be affected at some point by summer. We just don’t know (how many) quite yet.” The bigger question remains as to if there will be any significant changes to the system of water rights in California.

What Affect Will the Curtailment Order Have on Water Rights in the Future in California?

The system of water rights in California has been in place for well over a century, and the current drought has incited much debate over whether the current system of water rights is appropriate for a modern California. On the one hand, the system of rights has been established for over a century, and there is a long series of laws and case law that supports this system. On the other hand, critics of the system argue that senior water rights holders have little accountability, and currently have few limits on the amount of water they use in times of drought. Regardless of what happens to senior water rights this summer, it is likely that the debate over these rights will continue as the drought intensifies.


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About Jeff Simonetti

Jeff Simonetti is the Vice President of Public Affairs at the Capitol Core Group and provides project management, business development, and policy/lobbying expertise to a variety of federal, state and local clients. During his tenure at Capitol Core, Jeff has among other projects helped a renewable energy company to secure authorizing resolutions in cities across Southern California. Prior to joining Capitol Core Group, Jeff was a Vice President at the Kosmont Companies, a real estate and economic development consulting firm. At Kosmont, Jeff was the project lead for cities looking to implement financing strategies such as Enhanced Infrastructure Financing Districts (EIFDs) and other post-redevelopment funding mechanisms. He also was the project manager for the Economic Development element of the Fontana General Plan Update. Jeff gained significant state and local government affairs experience as the Government Affairs Director at the Building Industry Association (BIA) of Southern California’s Baldy View Chapter. During his tenure at the BIA, he helped to found the annual San Bernardino County Water Conference, an event that gathers over 400 elected officials and business leaders in the region to discuss the pressing water policy issues that affect the community.