A water rights bill giving the California State Water Resources Control Board (SWRCB) authority to investigate whether any water right or riparian water right is valid has passed the legislature and is now on Gov. Gavin Newsom’s (D) desk.
Senate Bill (SB) 389, introduced by Sen. Ben Allen (D-Santa Monica-24), faced opposition from agricultural groups when the measure was first proposed.
Kirk Wilbur, vice president of Government Affairs for the California Cattlemen’s Association (CCA), told WLJ they had two main concerns about the measure.
“First, the bill would have upended due process by placing an evidentiary burden of proof on a water rightsholder when the State Water Board instituted an investigation alleging the invalidity of a water right—a burden made all the more problematic by the fact that specific records for pre-1914 water rights were never required until 2009,” Wilbur said in an email. “Secondly, the bill would have allowed the board to revoke a water right even when there is no competing claim to the water in question, contrary to existing court precedent.”
Agricultural organizations, the Association of California Water Agencies and the California Chamber of Commerce changed their stance to neutral after Allen removed the provisions from the bill, according to CalMatters.
The bill still gives SWRCB the ability to investigate any water rights holder, including senior rights holders, and ask for information regarding prior diversions and use, including direct diversions and diversions to storage. If the board determines any diversion or use of water is unauthorized, it shall be deemed as trespass and the board can curb usage following notice and hearing.
Need for bill
Allen’s office told WLJ SB 389 is about “good governance” as the state has never verified claims to water and worked off data that is self-reported.
“We worked really hard with many folks who were initially skeptical of this effort and, thanks to those compromised-focused conversations, we passed a policy that ensures the board has more common-sense tools that will help with the proper management of the state’s water allocations while respecting valid senior water rights,” Allen said in an email.
Allen told the Los Angeles Times the bill was “about giving the water board the tools that it needs to do its work.”
The bill is a part of water reforms recommended by a SWRCB-funded report and by the bill’s sponsor, the Planning and Conservation League, a nonprofit environmental lobbying organization.
The report, titled “Managing Water Scarcity: A Framework for Fair and Effective Water Right Curtailment in California,” states curtailment options are effective for drought response and the state needs routine curtailments, and effective enforcement options are ineffective.
While the report says the board has tools to implement curtailments, “clarifying and solidifying the SWRCB’s authorities in statute and upgrading its statutory tool set to better reflect the agency’s critical role in managing water scarcity may be crucial for enabling effective curtailments in the future.”
Last year, the Planning and Conservation League published a 43-page report of recommendations for updating the state’s water laws to address climate change and drought. Among the 11 recommendations was allowing the state board to “investigate and determine whether a water right claimant, diverter, or user is diverting or using water under a defensible claim of right.”
Water fights ahead
SWRCB has pursued control over pre-1914 water rights since the drought in 2012-16. Water agencies sued and a California appellate court in 2022 ruled SWRCB exceeded its enforcement authority under the state’s Water Code.
According to SJV Water, SWRCB Chairman Joaquin Esquivel said at a May 2022 Water Association of Kern County Water Summit, “We know we have to change the system. Water rights can be there as a tool to be able to manage supplies through not just a drought but when there is water again.”
Senior water rights came under fire during this legislative session. Initially, three bills were introduced giving SWRCB more authority over water diversions.
Assembly Bill (AB) 1337, introduced by Assemblymember Buffy Wicks (D-Oakland-14), would “authorize the board to issue a curtailment order for any diversion, regardless of basis of right, when water is not available under the diverter’s priority of right.”
Wilbur said the bill would destroy farmers’ and ranchers’ ability to reliably plan for water availability even in years with no drought declaration.
AB 460, introduced by Assemblymember Rebecca Bauer-Kahan (D-San Ramon-16), would allow the board the authority to issue an interim relief order for a violation of “the Constitution, water quality objectives, water right permits and licenses, and fish and wildlife.”
Wilbur said the bill would impose fines 20-fold, and equally troubling was any “‘interested party’—including anti-grazing groups with no real interest in the water in question—could petition the board for such an order.”
The bills were withdrawn at the request of the authors, but could be introduced in the next legislative session.
Wilbur said CCA will “fight just as hard to curb any future efforts to diminish the senior water rights that form the foundation of California’s world-leading agricultural community.”
Newsom has until Oct. 14 to sign or veto SB 389. — Charles Wallace, WLJ contributing editor
