Term 91 -- Flips Senior Water rights to Junior

The fight over the Delta’s water has gone on for decades. Most of the time, those of us up here in the foothills are unaffected by the long drawn out battles that take place in the state houses and courts down in the valley or Southern California, but it looks like that is going to change.

At the State Water Resources control Board meeting last month, December 10th, the Delta Watermaster’s Report informed the board, they must extend “Term 91 to all water rights water rights holders” in Northern California, “regardless of individual water rights type status or priority date.”

Term 91 first appeared when it was attached to any new water permit issued by the water board after 1965. This term tied permit holder's water to the Board’s demand when ever they need it for the Delta.

Attaching Term 91 to everyone else throughout Northern California no matter how long they had their rights would take away their “Senior” water rights established long ago. Term 91 would make everyone’s water rights a “Junior” partner to the State’s water.

All of El Dorado County water purveyors would come under the state’s water management for the Delta and subject to the State’s during droughts or broken levys.

“This will flip all senior rights to junior water rights,” said Water Rights Attorney David Aladjem, Law Firm of Downey Brand, when he spoke at the Mountain Counties Water Resources Association and Association of California Water Agencies Conference held in Placerville on December 11th.

Droughts come and go. California has averaged about one every 30 years. Back in the 70s when streams were bone dry and Union Valley Reservoir was nothing more than a creek, ocean salt water crept deep into the Delta. Up past Rio Vista, cattle ranchers found their wells were pumping salt water.

With no rain or snow pack, there wasn’t enough water coming out of the mountains to feed the rivers, such as the Sacramento, American, Tuolumne and Cosumnes, to hold off the salt water.

The Northern California people, businesses and residents alike, tightened their belts and made major changes in how much water they used, but the Tracy pumps kept sucking up the fresh water. The fresh water that the Delta desperately needed to hold off the salt water intrusion. Southern California kept shipping the water down state.

Southern California residents weren’t short of water. They still had access to the Colorado River water. Residents didn’t think anything about hosing down their driveways, while Northern California had water police going up and down the streets watching for people water their lawns or washing their cars.

Tempers flared and Northern state officials threatened to split the state in two. Through all that, Northern California residents didn’t lose their senior water rights. The water board didn’t have the authority to force Senior water holders to give up their water.

Finally after many battles, industrialized farmers had their water contracts cut to stop the constant drain on the delta. Finally the industrialized farmers were held to the same level of responsibility to the Delta’s “water quality protection” as the rest of us in Northern California.

This couldn’t go unchallenged. The powerful political force in Southern California fought back. They want their water contracts filled, and they don’t want to be held responsible for the Delta’s problems.

The 2009 Delta Reform Act started up the three-ring circus: Delta Stewardship Council; Bay Delta Conservation Plan and the water board.

Everyone is left scurrying around trying to keep up with what is happening with the Delta’s plan, hearing numerous environmental and water count reports, and lots of closed sessions.

State officials keep telling Northern California businesses and residents, “This doesn’t affect you.”

Then in a December meeting the Watermaster slips in a “Report” at the end of his long PowerPoint presentations about Term 91.

I wasn’t at the meeting and there is no recording of the public meeting and the Board has not posted any minutes since July.

The State Water board is scheduled to discuss these “staff recommendations” in closed meetings this month, so we might not know what they resolve for a couple of months what happens.