This decision strikes me as a pyrrhic victory. If all curtailments are equally unconstitutional, if the order of appropriative right does not determine the order that diversions must stop when there is insufficient water in the rivers, then what does an appropriative right do? All it is good for is establishing a place in line, and here is a judge saying, nope, there’s no line anyway, the State Board can’t curtail rights in order or at all, even when it is astonishingly obvious that there is not water to satisfy all rights holders.
What does this leave? Senior diverters suing junior diverters individually?
The entire system is a convoluted, inaccurate, unjust mess. Now a judge is saying that the State Board can’t use it for the limited functionality it did have. Fuck it. Start over.
REVISED: This is what I get for hasty blogging. I should definitely not get a twitter account. My still-hasty new read is that appropriative rights can still determine the order of curtailments so long as there is a hearing first. I suppose that’s helpful, but doesn’t change the fact that this is a janky, cobbled-together system that isn’t responsive to real world conditions. Further, fighting the State Board every step of the way when the need for drought management is so clearly evident isn’t going to endear the State Board to our current water rights system.
8 responses to “If appropriative rights cannot be used to establish curtailments at all, then what function remains?”
Hang on there … State Water Board called me, said the story is wrong. They are formulating a response they are going to send me to post …
Look at bottom paragraph on p. 4 of decision: https://drive.google.com/file/d/0ByWIC6XmNNFmS180RER4QXpzQ28/view. Based on that, albeit that I haven’t read most of the submissions, this looks like a process issue. It appears the judge wants the Board to hold a hearing on a proposed curtailment order, but then the way is clear to issue it.
Note curtailment *order*, not *letter*, but there’s no difference in substance.
I wonder what the judge wants in the hearing? To establish what the streamflow and diversion amounts are?
IANAWL, but in light of Light this talk of takings seems overwrought, ripe for reversal.
Maybe first reactions are wrong on substance, but instincts are correct: whole system needs trashed and rebuilt.
Best part of this? That the State Water Board, in trying to get the word out, *calls Maven*.
I know. What Maven has done singlehandedly has become indispensable to all of us.