Stockton CA judge won’t hear local farmers’ case over water cuts

STOCKTON — Dozens of Central Valley farmers who were hoping a local judge would come to their aid and fend off sweeping state water restrictions imposed on some of California’s most senior water rights holders were dealt a blow Tuesday when the court declined to hear their case, citing a potential for “local prejudices.”
San Joaquin County Superior Court Judge Carter P. Holly, after three hours of arguments, honored a request by state water officials to transfer the challenge to their conservation measures to a less partial county. A new site has not been determined.

The lawsuit brought by the Banta-Carbona Irrigation District in Tracy is the first to question the state’s authority to demand that those with century-old water claims stop pumping from rivers and creeks in light of the drought.
Although the case was filed on behalf of just 75 or so growers, it could affect thousands of farmers, water districts and communities whose supplies hinge on senior water rights. It is viewed as a crucial test of the state’s power to manage water use during the drought.
The bulk of Tuesday’s debate, which focused on just how far the State Water Resources Control Board can go in its conservation crackdown, won’t be ruled on since the case will be moved before another judge. However, it provided a glimpse of the fight to come.
“The hearing exposed the state board’s flawed thinking,” contended Jeanne Zolezzi, one of the attorneys representing the irrigation district.
The district’s argument is that its century-old right to draw water from the San Joaquin River predates the state’s requirement for permits and cannot be compromised.
Since the river water is the district’s only supply, all deliveries to the farmers in the area will cease under the state’s directive. The suit estimates this will mean $800 million of crop losses this year.
Farmers in attendance
Dennis Baker, who runs a hay business in Tracy, was one of about 50 in the courtroom Tuesday who looked as if they would rather be back at the farm with their dusty boots, work jeans and Western hats. The issue was too important to ignore, however.
“I have like a cutting of hay left in the field. After that, there will be no more if they turn the water off,” Baker said.
Baker has been using extra fertilizer to make up for the water shortage, but that won’t be enough to yield the usual three or four harvests that ensure he can pay the bills each year.
The irrigation district was still delivering water to Baker and other customers Tuesday, citing a one-week grace period after receiving notice from the state to stop pumping. The district’s board had not decided whether it would continue drawing water after the deadline.
Those who illegally pump face fines of $1,000 per day plus $2,500 per acre-foot drawn. An acre-foot of water is enough to supply one or two homes for a year.
The state water board contends there simply isn’t enough water in California’s rivers and creeks to meet the demands of all water rights holders. So, per the state’s system of seniority, cuts need to be made by those with less senior rights.
Orders to stop pumping were issued earlier this year to thousands with claims after 1914, the year that California began granting permits for water draws. On June 12, the state water board took the unusual step of extending the directive to senior rights holders with claims back to 1903.
Only once before, during the drought of the late 1970s, has the state reached as deep into the hierarchy of water rights. Those with claims older than 1903 can still draw water.
The Banta-Carbona Irrigation District staked its claim in 1911.
The curtailment applies across California’s biggest farming regions: the Sacramento River watershed, the San Joaquin River watershed and the delta.
State attorneys argued Tuesday that they have the power to force water rights holders to stop pumping when those with more senior rights are at risk of not getting their water.
“It’s the reality of the water shortage,” said attorney David Rose.
The heart of the dispute was over what legal mechanism the state had to regulate water rights holders whose claims precede California’s regulatory system.
Attorneys for the irrigation district held that pre-1914 rights were simply off-limits, while state lawyers contended that the water board’s authority rests on its legislative mandate to protect California’s water supply.
The irrigation district also claimed that it hadn’t been given the opportunity to protest before pumping restrictions were issued, denying it due process. State attorneys said due process would come when the state enforced the restrictions.
Drilling a new well
Not knowing what would happen with the district’s water supply, grower Kris Thomsen, who attended Tuesday’s hearing, made the decision to pay $230,000 to drill a new well on his property to secure another source of water.
The well still needs a motor and pump, so he is not sure yet how much groundwater he will have to irrigate his almond trees, but he is hoping for the best.
“We’re not necessarily looking to get a bumper crop,” he said. “We just want to keep them alive.”
Similar suits to the one heard Tuesday also have challenged the state’s authority to restrict senior water rights holders. No others, though, have gone before a judge.
Among those filing suits are the Patterson Irrigation District also along the San Joaquin River and a consortium of water agencies that draw from the Stanislaus, Tuolumne and Merced rivers. Several other irrigation districts have threatened legal action.
By Kurtis Alexander : San Francisco Chronicle staff writer