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Drought Continues, CA Institutes Agricultural Water Reductions

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By Casey C. Sullivan, Esq. on June 15, 2015 3:54 PM

When Governor Brown instituted mandatory water restrictions on urban water users early this April, he was widely praised for taking drastic action to address California's worsening drought. Yet, that praise was often paired with skepticism and even condemnation, as Brown had failed to mandate any reductions for agricultural water users. In California, agricultural users are responsible for four times as much water use as all urban uses, or approximately 80% of all water use in the state.

Agricultural users' reprieve hasn't lasted long, however. On Friday, California instituted sharp cutbacks for farmers, the first reduction of its kind in 38 years. The cutbacks could raise tricky legal issues in California, where water rights complicated and often controversial.

The state's reductions will apply to water rights holders in the San Joaquin and Sacramento watersheds whose claims came after 1903, according to The New York Times. The order, issued by the State Water Resources Control Board, affects 276 water rights claims, totaling 1.2 million acre-feet of water. Violators face fines of up to $1,000 a day and $2,500 for each unauthorized acre-foot. The restrictions are likely to lead to fallowing of water-intensive seasonal crops as farmers look to reduce their water consumption.

California's Complicated Water Laws

At present, the reductions do not touch senior water rights, but they soon could. In California, and much of the West, water rights are a tricky and often litigious topic. For much of the state's early history, California had an appropriative "first in time, first in right" system. If you diverted and used water, you had the right to continue to do so, limited only by the rights of those who came before you. This was a use it or lose it system, which obviously does not lend itself towards conservation.

In 1914, the state moved to a permitting system and the creation of the State Water Resources Control Board to administer water rights and licenses. Water rights permits and licenses determine the amount and timing of water diversions and what they can be used for. This switch caused a split between pre-1914 and post-1914 water rights, with the older rights having priority over the newer ones. Throw in riparian water rights, ground water rights, contractual and prescriptive water rights and you've got quite a tangled system.

Almost Unprecedented Reductions

The state's new restrictions are only the second time California has ever restricted pre-1914 water rights. As junior water rights holders see their allocations reduced, senior water rights are likely to be impacted, leading to a degree of control over pre-1914 rights that is rarely seen in the state.

Some farmers, however, may have bought themselves an out by taking earlier, voluntary action. Last month, the state and Delta farmers reached an agreement to reduce water use by 25 percent in exchange for no further cuts throughout the season. Only half of the eligible farmers took part; the rest may now see their water use reduced far beyond 25 percent.

Expect litigation to begin before the tap runs dry.

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