San Francisco Cut-Off with Senior Water Rights Holders

The drought in California continues. It is the dry season and there will be no rain until late fall or early winter. In an average year precipitation in California is about 23 inches. However, since 1960 almost 40% of years have been drought years. The evidence tree rings show that California has had alternating cycles of severe drought and heavy precipitation a dangerous pattern when water use is at its limit. Right now California is experiencing the most severe drought in the past century. This may be the result of a changing climate, the beginning of a long period of drought or just extreme weather. No one really knows how long this drought will last, but tree-ring studies indicate one 61 year drought from 1760-1820. Anything could happen-the next rainy year might be next year or in a half century.

Meanwhile, water reserves continue to dwindle down and so the California State Water Resources Control Board has issued “curtailment orders” to more than 100 senior water rights holders on the Merced and upper San Joaquin, Sacramento, Tuolumne and Scott rivers as well as the Antelope Creek. These curtailments have not just been to agricultural water districts and farmers, but also communities. San Francisco had their rights to divert water from the Tuolumne River to the Hetch Hetchy reservoir curtailed. San Francisco depends on water diversion from the Tuolumne River to fill its reservoirs and supply the city with water.

There is some question as to the date of the San Francisco’s claim on the Tuolumne River, it has been variously reported to be 1902 and 1903. Also, there is some question whether the most senior claims, and riparian claims, can be curtailed. The most senior of all water rights is the riparian right. The riparian right is a right to the natural flow of a watercourse- if the river runs through your land, you can use the water, but not store it. Riparian rights are senior to pre-1914 appropriative water rights, and are not lost by non-use. California created the State Water Resource Control Board to oversee the water rights in 1913 and began issuing permits for water claims in 1914. Prior to 1914, there was no comprehensive permit system to establish water rights in California. To establish an “appropriative right” right required simply posting and recording a notice of intended water diversion and use, and the construction of the system to divert and use the water. Claims going back to Gold Rush days are lumped together as pre-1914 rights.

Today the California Department of Water Resources (DWR) “owns” the California state-owned State Water Project (SWP) just as the U.S. Bureau of Reclamation “owns” the federally-owned Central Valley Project (CVP) water. Together they form the largest water storage and transportation system in the world with 1,200 miles of canals and nearly 50 reservoirs. Water is doled out based on the system of rights. There is hardly any water flowing naturally in California. Several lawsuits have already been filed by senior water rights holders who are challenging the California State Water Resources Control Board’s authority to cut their rights.

Water is wealth. Newer or junior water rights are the first to be cut back or curtailed when water supplies are inadequate. In this way, senior water rights holders can continue to get water deliveries in time of drought. In April of this year, the fourth year of the current drought, almost 9,000 junior water rights holders were ordered to stop using water this year. Now the California State Water Resources Control Board issued “curtailment orders” to Pre-1914 Claims of Right that Commenced During or After 1903.

While this is calamitous to the farmers who stand to lose $60-$100 million in crops already in the ground, San Francisco is not likely to run out of water any time soon. The city made sure that the Hetch Hetchy reservoir was over 90% full before the order was issued. The bigger issue for San Francisco is their rights to the water. The Hetch Hetchy Project supplies water to the City of San Francisco and surrounding Bay Area communities, and regulates stream flow in the Upper Tuolumne River, Cherry Creek, and Eleanor Creek. The Hetch Hechy system consist of the Hetch Hechy Reservoir, Cherry Reservoir and Eleanor Reservoir a portion of the New Don Pedro Reservoir as well as other small surface reservoirs of various size and significance and five groundwater basins. The stored water in the system is transported from the Tuolumne River to the cities, towns and farms supplied by the system via the Hetch Hetchy Aqueduct, the California Aqueduct, the Delta Mendota Canal, the South Bay Aqueduct, and the Pacheco Tunnel. The curtailment order challenges the City’s right to manage and regulate the Tuolumne River flow and sets precedence for the remaining city water rights.

It appears as if the courts will regulate water and determine water rights, too.