The County argues that the lawsuit is a challenge to the Scott Valley Surface Water Adjudication because the Adjudication defined areas of “interconnected groundwater” outside of which groundwater pumping is unregulated. Since the Siskiyou County Superior Court retained jurisdiction over the Adjudication, Siskiyou County argues, the case should be heard by that court.
Those filing the lawsuit – the Environmental Law Foundation and commercial salmon fishing interests – argue that the State Water Resources Control Board has jurisdiction and therefore that Sacramento is the proper venue for the case.
However the County’s motion is decided, the case will most likely end up in the California Supreme Court or - at minimum - in the appellate court system. This will take years to play out; some predict decades.
Meanwhile folks in the Scott River Valley are being whipped up for an all out water war. Property Rights leaders portray the lawsuit, state ordered reporting of water diversions and related calls for water for Coho Salmon and Lamprey as threats to surface diversions, municipal water, all private wells and, of course, property rights.
In reality, any action to put more water into the Scott River will likely target groundwater pumping which has increased dramatically in the Scott River valley since the 1970s. Surface water diversions are unlikely to be affected. The reason is simple: under California Water Law first in time still means first in right; since the groundwater irrigators came last, they will have to curtail pumping in order for flows in the Scott River to improve.
The ELF-salmon fishermen’s lawsuit is aimed squarely at that increased groundwater pumping most of which is for irrigation. Irrigated agriculture has pushed up side valleys and onto the foothills surrounding Scott Valley and the process continues with new land coming under irrigation this year. All this has been totally unregulated.
The federal government has encouraged bringing marginal land under irrigation by funding irrigation infrastructure
Property rights hysteria aside, neither ELF’s groundwater lawsuit nor Klamath Riverkeeper’s challenge to Cal Fish & Game’s proposed Coho Permit for Scott Valley agriculture, are likely to put more water in the Scott anytime soon. Whether the State Water Board’s new emphasis on surface waster diversion reporting results in more water in Scott River remains to be seen. This blog has photographed and reported on Scott Valley diversions from Kidder, Etna and other streams which are run full year around. Reporting requirements should end that practice. But whether state regulators have the stomach to end lawless diversions remains to be seen.
The Dry Riverbed will return
As this post is being written, the USGS Gauge on Scott River below Scott Valley is reading about 34 cubic feet per second – better than the 30 cfs readings recorded during August. Cooler fall temperature and less sunlight mean natural vegetation, alfalfa and (new) rice fields are consuming less water; hence the increased flow.
Thirty cubic feet per second is the minimum Klamath National Forest riparian water right in Scott River. It is the minimum flow the Siskiyou County Superior Court found is needed in the Scott River to maintain Salmon and other fisheries. Although calibration of the USGS’s Scott River flow gauge is disputed, this year the official reading never dipped below 30 cfs.
Years of more normal precipitation and droughts, however, will return. When Scott River flow again falls below the legal minimum will those who champion Chinook Salmon, Pacific Lamprey and Coho Salmon take action to enjoin upstream water users? Those preaching water war in Siskiyou County apparently think so. With no government mechanism established to mediate such conflicts, the courts look like the only avenues open to those who want to stop the dewatering of Scott Valley.
Lack of governance fuels litigation
Government management of water in the American West has been a contentious topic since white Europeans first arrived. The result is an incomplete hodgepodge of water laws, confused and confusing jurisdictions which fuel constant streams of litigation. John Wesley Powell, western explorer and father of the US Geological Survey, suggested organizing western states along river basin lines. Similar calls have echoed from time to time around the West and recently in the Klamath River Basin.
A movement for whole-basin, all-interest Klamath River Basin water management did not make it into the Klamath Basin Restoration Agreement (KBRA) and has yet to catch fire in Klamath Country. Instead water issues in the Basin will continue to play out the way they typically have in the West – through litigation, side deals and piecemeal settlements.
Many before KlamBlog have pointed out that this is not a good way to manage the West’s most precious resource. But the sort of leadership needed to take us beyond this contentious, fragmented and litigious approach has not yet appeared…not on the Klamath…not in the West…and not in the wider world.