Delta voluntary cuts challenged

The latest lawsuit by a water district with senior rights is significantly different from its predecessors.

While the districts all argue that the state’s curtailment of those so-called “pre-1914 rights” are illegal, the Byron-Bethany Irrigation District is the first to challenge the voluntary 25 percent reduction program in which more than 200 Delta growers have reportedly enrolled.

In its lawsuit filed June 26 in Contra Costa County Superior Court,  BBID calls the 25 percent plan a “scheme,” saying it’s not fair for the State Water Resources Control Board to waive enforcement against some farmers while threatening enforcement against others.

BBID also questions the riparian rights claimed by the Delta growers, saying that many of the lands involved in the voluntary program “do not appear to be contiguous to a watercourse” and that landowners have not provided evidence that the water rights for those non-contiguous properties still exist.

All of this “significantly injures” BBID, since the Delta farmers’ thirst plays into the water board’s calculation that there is no longer enough water available for other senior right holders, the lawsuit says.

I asked George Hartmann, one of the attorneys who helped cobble together the 25 percent plan, if he was concerned about the lawsuit.

No, he said.

The state board didn’t agree to exempt Delta growers from future curtailments, Hartmann said; the board merely agreed not to bring enforcement against those who decided to participate.

And that’s the board’s right, Hartmann said.

“To argue they don’t have prosecutorial discretion, I don’t think you’re going to get too far with that one,” he said.

As for BBID’s claim that the riparian rights simply aren’t there, Hartmann said the state is requiring proof of riparian rights to enroll growers in the 25 percent program.

“They (state officials) are not sitting idly by,” he said. “If somebody’s not riparian, they’re going to get kicked out.”

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