CSPA Water Rights Initiative
CSPA has been a strong advocate in regulatory processes since our foundation in 1983. Our mission statement reflects it, and our record of participation proves it. One of our overriding principles is that if laws already on the books were enforced, California’s fisheries would generally be in excellent condition. If regulators did their jobs, CSPA staff could spend a lot more time on rivers and a lot less time in offices, meeting halls, and courtrooms.
The State Water Resources Control Board is the single venue where CSPA has pursued the greatest portion of our regulatory advocacy. A large part of our State Board advocacy deals with water rights.
Water rights protests
Major water rights actions often have humble beginnings in protests. Whenever an entity seeks a permit for a new water right, it must file an application with the State Board. Similarly, whenever an existing user seeks to change an existing water rights permit or license, it must file a petition with the State Board. Notice of new applications and petitions is posted on the State Board’s website, and is also available through a State Board listserve. With each notice, a protest period of 30 to 60 days is specified.
CSPA often protests water rights applications and petitions on three grounds: that they are contrary to law, that they would not serve the public interest, and that they would have an adverse environmental impact. Any of these reasons is sufficient for the State Board to reject an application or petition, but generally CSPA protests on all three grounds.
CSPA’s strategy for water rights protests
CSPA staff reviews every water rights application and petition that is noticed by the State Board. Decisions on whether to protest are based on multiple factors, including:
- Known or likely environmental impacts
- Magnitude of proposed diversions
- Availability of water in affected watersheds
- Important legal issues
- Important policy issues
- Nexus to CSPA’s mission
Some protests are filed in order to assure appropriate mitigations or instream improvements, like fish screens on existing diversions, or increased instream flows. However, CSPA files many protests to seek denial of the application or petition altogether: in general, less water diverted from rivers means more water in rivers for fish.
Follow-up to protests
Filing a water rights protest is a serious exercise that requires investigation of the particulars of a proposed action and legal research, in addition to the composition of the protest itself. But acceptance of a protest by the Board is only the first step in a lengthy process. The applicant or petitioner is asked to respond to an accepted protest, and the protestant in turn must state whether the response is sufficient to resolve the protest. If not, the applicant or petitioner is given a defined amount of time to try to resolve all of the outstanding protests; this may involve a series of meetings. Environmental impact reports are also often required for proposed projects. For protestants, this means review, comments, and sometimes separate legal actions.
If protests cannot be resolved, and the parties are timely in following procedures, the Board may grant a hearing to address outstanding protests. Usually, the Board will issue a draft order to be considered as the focus of the hearing, and a series of key issues to be addressed by the parties. A water rights hearing is an evidentiary process where applicants/petitioners and protestants must submit testimony and exhibits to support their claims, testify under oath, and be subject to cross-examination and rebuttal.
Legal challenge through lawsuits is always a possible final step following hearing.
A CSPA protest began the process that killed the water rights for Auburn Dam
In 1998, CSPA protested a petition for extension of time filed by the Bureau of Reclamation for the water rights permits for Auburn Dam. The permit was granted in 1971, but the dam was not constructed, and the time for putting the permit to use had run out by many years. Even after 1998, the State Board was extremely indulgent with the Bureau, asking the Bureau only for limited progress on the permit, including completion of a environmental document. The Bureau repeatedly answered that it was waiting for Congress to fund the project.
Ten years later, in 2008, 37 years after the permits for Auburn Dam had been granted, the Board moved to revoke the permits. A hearing was scheduled. CSPA and our allies, most notably including Friends of the River, submitted exhibits and testimony.
We stated in written testimony: "After 37 years, there is no project, no prospect of a project, no Congressional interest in a project, no federal funding for a project, no funding partners for a project, and no environmental documentation for a project." In oral testimony, we framed two issues for the Board. First: "Who interprets, carries out, and enforces the Water Code, the Board or the Bureau?" And second: "What goes for all the small water rights that have been revoked in the last couple of years must also go for the Bureau."
In early 2009, The State Board unanimously revoked the permits for Auburn Dam.
Two generations of CSPA water rights protests
Similar to our protest of the permits for Auburn Dam, CSPA has many active water rights protests that date back to the 1990’s. Among the most notable are protests on application 17447 for the Santa Ynez River (Santa Ynez Water Conservation District), 30166 for the Big Sur River (El Sur Ranch), and 29835 for the Mokelumne River (a consortium of interests styled as the Mokelumne River Water and Power Authority). Hearings for El Sur Ranch are now scheduled for June, 2011.
Application 30358 of the cities of Davis and Woodland to appropriate water from the Sacramento River went to hearing on January 18 and 19, 2011. CSPA testified that water was not available for appropriation from an over-appropriated Bay-Delta system. The Water Board decided that since water is available at some times (for instance, during floods), it would grant the permit. The issue of whether any new permits in the Bay-Delta watershed should be granted before protective flows for the system are established is now being considered by the Delta Stewardship Council.
In addition to numerous pending protests already on file, CSPA has filed additional protests over the past several years. By application number and year the protest was filed, these include:
- 12721 et al CVP petitions for extension of time 2009
- 29062 Delta Wetlands application and petition 2009
- 5629 DWR petitions for extension of time 2010
- 5644-5645 El Dorado applications and petitions 2009
- 31807 Forest Ranch application 2010 [draft cancellation order issued by State Board]
- 29657 San Joaquin County application 2008 [draft cancellation order issued]
- 12842 North San Joaquin petition 2009
- 12919A Sonoma County Russian River petition 2010
- 12919BC Mendocino application state filings 2008
- 31553-31554 Rogina Russian River application 2007
- 14313 Bear Gulch petition for extension of time 2009
- 476, 22061 Paradise Irrigation District Little Butte Creek petitions 2008
- 1270 et al Nevada Irrigation District petitions 2009 (joint protest)
- 17002 Zone 7 Alameda Creek watershed petitions 2010 (joint protest)
- 11587, 12179, 21471B Bureau of Reclamation Santa Margarita River petitions 2010 (joint protest)
CSPA seeks support for its water rights initiative
At present, CSPA has no grant funding dedicated to water rights actions. Please help support CSPA’s water rights initiative by joining CSPA and by contributing to CSPA’s water rights initiative.