Surface water rights in the Mokelumne River Watershed basin consist of riparian and pre- and post-1914 appropriative rights. Riparian rights always have priority over appropriative rights, and pre-1914 appropriative rights have priority over post-1914 appropriative rights (WRIME 2007). The following sections summarize the major decisions and orders affecting the management and distribution of Mokelumne River water.
9 January 2015
88 Decision 100 (1927)
Issued by the State in 1927, Decision 100 approved EBMUD’s appropriation application for the Pardee Project and a permit was subsequently issued (WRIME 2007). The SWRCB issued License 11109 to EBMUD for its Pardee Project in 1981.
Decision 858 (1956)
Decision 858 was issued in 1956 by the State Engineer and had several implications for the Mokelumne River (WRIME 2007). The Decision declared that a permit by a municipality for domestic purposes be considered first in right, regardless of whether it is first in time. EBMUD was declared a municipality. Because CCWD and NSJWCD delivered large portions of their water to agricultural users, they were not declared municipalities. The Decision granted rights to EBMUD to store water in either Camanche and/or Pardee Reservoirs and to directly divert water from the Mokelumne River during December 1 through July 1 for municipal purposes. CCWD was granted the opportunity to develop their water rights as a county of origin, but applications could not exceed 20,000 AFY13. Under Application 12842, NSJWCD was granted temporary appropriation of the excess water not used by EBMUD under its Application 13156.
Decision 1490 (1979)
Decision 1490, issued by the SWRCB in 1979, reduced JVID’s diversion under Permit 12167 5,000 AFY to 3,850 AFY. AWA was granted direct diversion rights to 1,150 AFY from the North Fork of the Mokelumne River and 279 AFY from Antelope Creek, and storage rights to 1,600 AFY in Bear Reservoir. However, the maximum diversion that AWA could take from all sources was set at 1,150 AFY (WRIME 2007).
Decision 1527 (1979)
Also in 1979, the SWRCB issued Decision 1527, which related to an application from El Rio Vineyards for appropriation of 49 AF of water and flow of 11.14 cfs for storage and crop use. While the SWRCB found that water was not available for appropriation from March 1 through July 1 of each year, there was surplus water available from December through February. As such, the SWRCB allowed El Rio Vineyards to divert water to storage (49 AFY) from December to February. Furthermore, El Rio Vineyards had riparian rights to water in the Mokelumne River, so there was no need for a permit to divert water for crop usage during
13 County of origin rights are administered by the SWRCB, but were originally filed by the State Department of Finance in 1927 under “state filings” No. 5647 and 5648. These “reserved” rights are intended to ensure that projects exporting water from the county would not deprive the county of origin of water necessary for the development of the county. These reservations are not forfeitable and are held in perpetuity until released by the SWRCB for use in the county of origin (WRIME 2007).
the growing season; riparian holders were already factored into the releases from Camanche under the agreements between EBMUD and WID (WRIME 2007).
Water Rights Order 98-08 (1998)
In a declaration established in Water Rights Order 91-07, the SWRCB had declared that the season of unavailability for appropriation in the Mokelumne River includes the months of June through November (WRIME 2007). In WRO 98-08, the SWRCB added the months of March through June to the season of unavailability. The WRO states that the Mokelumne River is fully appropriated March to November from Woodbridge Dam upstream14. Additionally, the WRO declares that the Mokelumne River is fully appropriated July to September from the confluence with the San Joaquin River upstream to the Woodbridge Dam, including all tributaries within this reach where hydraulic continuity exists. The following three exceptions exist to the above declarations of appropriation:
Due to the occasional availability of unappropriated water in the Mokelumne River during the months of March through June, the declaration does not apply to proposed conjunctive projects which are not dependent upon unappropriated water being available in most years but which could utilize unappropriated water when it is available.
The order does not apply to State Applications 5647 and 5648 and related assignments.15
Applications 29835 and 29855 should be processed normally, pursuant to Title 23 CCR Section 873(b) (5).16
14 California Water Codes sections 1205 through 1207 establish a procedure for the SWRCB to declare state water systems fully appropriated either year-round or during certain months. Section 1205(b) states that a such a declaration include “previous water rights decisions [that] have determined that no water remains available for appropriation” (Water Code §1205(b)). Decision 1527 provides the SWRCB with the support needed to declare the Mokelumne fully appropriated.
15 Filed by the State of California on July 30, 1927. Both applications reserve water for future appropriation from tributaries of the Mokelumne River for domestic and irrigation uses. A portion of Application 5648 was assigned to JVID in 1959 under Permit 12167 and a portion of Application 5647 was assigned to AWA in 1979 under Permit 17579.
16 These applications were submitted by the Mokelumne River Water and Power Authority. Application 29835 is currently being pursued by San Joaquin County. Title 23 CCR Section 873(b)(5) states that applications determined by the Chief to be consistent with a revised or additional declaration shall be processed normally. If an application is deemed to be inconsistent with the conditions of the revised declaration, the Chief shall provide the applicant a notice which specifies a reasonable time within which the applicant may provide information to show that hydrologic circumstances have changed within the system declared to be fully appropriated, or that other circumstances exist which justify the continued processing of the application.
9 January 2015
90 Decision 1641 (1999)
The primary purpose of Decision 1641, issued December of 1999, was to address the water quality objectives of the Bay-Delta Water Quality Control Plan, as well as changing points of diversion, place of use, and purpose of use for the State Water Project and the Central Valley Project (WRIME 2007). As part of the discussions on Bay-Delta Plan water quality objectives, EBMUD and a number of other agencies argued that the flows being released under the JSA were sufficient to meet the objectives. Decision 1641 affirms that the JSA releases by EBMUD and WID are sufficient to meet the Bay-Delta Plan water quality objectives. Accordingly, this Decision establishes that both EBMUD and WID are responsible for helping meet Bay-Delta Plan water quality objectives through compliance with the JSA and amends WID’s water right licenses to require that WID bypass JSA released flows below Woodbridge Dam, as defined in the JSA (WRIME 2007).
In 2010, the SWRCB released the Delta Flow Criteria Report which determines new flow criteria for the Sacramento-San Joaquin Delta ecosystem necessary to protect public trust resources. Prompted by this Report, the SWRCB is currently updating the Bay-Delta Plan. A draft Substitute Environmental Document has been released, which indicates that the SWRCB is preparing to require additional flow from many tributaries to the San Joaquin River and the Delta, representing an increase in the amounts required by Decision 1641 (SWRCB 2012). It is not known at this time how continued updates to the Bay-Delta Plan will affect the Mokelumne River and Decision 1641.
Water Rights Order 2000-02 (2000)
WRO 2000-02 was issued by the SWRCB to clarify Decision 1641. In this order, the SWRCB stated that “the Watershed Protection Act […] does not apply to EBMUD’s water rights because EBMUD’s project is not part of the Central Valley Project (SWRCB 2000).” In the process of hearings prior to D1641 being issued, NSJWCD argued that they were unfairly denied water rights under D858. WRO 2000-02 stated that “D1641 is not the proper proceeding for the SWRCB to make the kind of change [reversal of the water rights priority set in D858] NSJWCD is requesting (SWRCB 2000).” As such, the SWRCB did not change the priority of the rights established in Decision 858.
The declarations made in WRO 2000-02 were subsequently litigated. In an appellate decision, the court upheld the SWRCB’s declaration in Decision 1641 to approve the JSA flows (WRIME 2007). The court also found that Water Code section 11460 does not determine a preference for any particular type of use over another within an area of origin, nor does the section require explanation of why a particular beneficial need for water exists within the area of origin.
Protest Dismissal Agreement (2014)
Since 1990, San Joaquin County (SJC), North San Joaquin Water Conservation District (NSJWCD), Stockton East Water District (SEWD), Central Delta Water Agency (CDWA), South Delta Water Agency (SDWA) and EBMUD have at various times filed petitions with the State Water Board regarding applications, change petitions and protests related to water rights along the Mokelumne River. These petitions and protests have been pending before the State Water Board. In the settlement agreement approved in December of 2014, the parties agreed to work jointly to improve the health and sustainability of the Eastern San Joaquin groundwater basin and to set aside their respective protests and to petition the SWRCB to dismiss their pending protests. The settlement lays out specific agency commitments which could affect the timing and quantity of water available on the Mokelumne. However, due to the timing of its approval, the provisions of the agreement were not incorporated into the modeling results presented herein.