Forget It Jake, It’s Chinatown:
State Seizes Water Rights in the “Delta Watershed”
Late yesterday the State dropped an anvil on water-rights holders in what it calls the “Delta Watershed,” streams tributary to the Delta, though not in the Delta itself. The State, following the battle plan of Los Angeles for its invasion of Owens Valley more than a hundred years ago, has stealthily acquired much of the Delta and its water rights. It would not want to curtail its own water rights.
The “curtailment order” is broad, fiendishly named, and set out below. As you read it, a cringe may crawl through you. But bear in mind that many legal scholars consider water rights to be no less “property rights” than rights in land. The government cannot “curtail” your right to use your land simply because it wants your land for its own purposes. That would be a taking of property, which must be for a “public purpose,” and must be compensated. And that is so even if the confiscation is temporary. At least, last we looked.
When the State deprives cities and farmers and ordinary people of their water rights, it isn’t as though the water disappears. What happens is the State takes possession of the water, seizes it from the rights holders, and considers itself free to use it for its own political purposes.
The State has concocted various theories for why taking water from water rights holders really takes nothing. It says that all water rights are subject to the limitation that their use must be “reasonable”, and that using water to supply cities and grow crops is somehow unreasonable. It also says that the “public trust” requires taking water away from farms and people and letting it flow out to sea. Does any of this inspire the public’s trust that the State is acting reasonably?
For what it is worth, the State of California has a particularly poor record of using water. For its first thirty-two years, from 1850 until 1882, its primary water policy was to use the State’s water to blast apart, like modern-day Howitzer artillery guns, the Sierra Nevada Mountains. That blasting released the Sierras’ gold in torrents of water that caused environmental devastation that has existed to this day. The State’s politicians were giddy. The taxes on the mines paid bloated government salaries, and the unreported payments from the mining companies to the politicians made some remarkable fortunes.
Here are the relevant parts of the State’s diktat of yesterday:
This email contains important information about the curtailment status of water rights and claims of right within the Sacramento-San Joaquin Delta (Delta) watershed pursuant to Initial Orders Imposing Water Right Curtailment and Reporting Requirements in the Delta Watershed (Order for water rights/claims under 5,000 acre-feet and Order for water rights/claims over 5,000 acre-feet).
The following water rights are curtailed, effective June 8, 2022 . . ..:
1. Water rights and claims on the following Sacramento River tributaries:
a. Post-1914 appropriative water rights and pre-1914 appropriative water right claims in thePutah Creek subwatershed outside of the Legal Delta with a priority date of 1850 or later;
b. Post-1914 appropriative water rights and pre-1914 appropriative water right claims in theCache Creek subwatershed with a priority date of 1859 or later;
c. Post-1914 appropriative water rights in the Bear River subwatershed with a priority date of 1942 or later; and
d. Post-1914 appropriative water rights in the Stony Creek subwatershed with a priority date of 1957 or later.
2. Water rights and claims on the following San Joaquin River tributaries:
a. All post-1914 appropriative water rights, pre-1914 appropriative water right claims, and riparian water right claims in the Calaveras River subwatershed outside of the Legal Delta;
b. All post-1914 appropriative water rights, pre-1914 appropriative water right claims, and riparian water right claims in the Chowchilla River subwatershed; and
c. Post-1914 appropriative water rights and pre-1914 appropriative water right claims in theMerced River subwatershed with a priority date of 1859 or later.
3. Post-1914 appropriative water rights and pre-1914 appropriative water right claims in the San Joaquin River watershed outside of the Legal Delta with a priority date of 1900 or later.
Curtailments are expected to continue through the summer and early fall until significant precipitation occurs. Water supply forecasts will continue to be evaluated regularly to determine if, when, and to what extent the further re-imposition or suspension of curtailments may be appropriate. The next curtailment status update will be provided by email and web posting no later than June 14, 2022. Please check the Delta Watershed Curtailment Status List for the current curtailment status of each water right and claim in the Delta watershed.
John Briscoe
235 Montgomery Street, Suite 935
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630
