Water has been a contentious issue in California, stretching back to the state’s founding in 1850. Recently introduced legislation could upend pre-1914 water rights, giving the State Water Resources Control Board (SWRCB) more authority over water diversions.
AB 1337
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.” The bill would consider any water diversion not authorized as a trespass and subject to injunctive relief and fines.
According to CalMatters, a nonprofit and nonpartisan news organization, the bill would overturn a ruling by the state appellate court regarding water curtailment cases and give SWRCB more authority on surface water rights, particularly those dating pre-1914 when the state began controlling diversions.
The cases stemmed from former Gov. Jerry Brown (D) declaring an emergency in 2014 due to multiple years of drought. SWRCB attempted to curtail diversions on pre-1914 rights holders, citing the emergency and the lack of water to meet demands.
A curtailment order and a fine was served to the Byron-Bethany Irrigation District, which serves customers in three counties on the southern edge of the Sacramento-San Joaquin Delta. Water agencies filed a temporary restraining order and SWRCB issued a partial rescission of the curtailment orders.
The case proceeded, and the trial court ruled in favor of the water agencies, stating SWRCB does not have the authority to “take enforcement action against pre-1914 appropriators based on a general lack of available water under their priority of right.”
The state appealed, and according to CalMatters, lost in 2022 in the 6th District Court of Appeal in a decision known as the California Water Curtailment Cases, referenced in AB 1337.
“It is the intent of the Legislature that this bill clarify that the State Water Resources Control Board has the necessary authority to curtail pre-1914 water rights and address the gap in the state board’s authority revealed by the court in the series of cases known as the California Water Curtailment Cases,” the measure declared.
The measure passed the Assembly and moved to the Senate Committee on Natural Resources and Water.
SB 389
Introduced by Sen. Ben Allen (D-Santa Monica-24), Senate Bill (SB) 389 would give SWRCB the authority to investigate whether a water right is valid. It would authorize SWRCB to “investigate the diversion and use of water from a stream system to determine whether the diversion and use are based upon appropriation, riparian right, or other basis of right” and “to adopt regulations to implement these provisions.” It also would increase the board’s bureaucracy power over water policy.
Under the existing California Water Code, pre-1914 and riparian water rights holders are not required to have a state-issued permit. Rights holders after 1914 are issued permits containing information on the right’s scope. Under the legislation, all water rights holders would be subject to SWRCB jurisdiction.
The Planning and Conservation League, the sponsor of this bill, argues the bill “addresses this gap in the State Water Board’s authority” and the bill will allow the board “to better manage the system for the benefit of all users and the ecology of California’s many beautiful streams.”
The measure passed the Senate 23-11 and moved to the Assembly Committee Water, Parks and Wildlife Committee.
Opposition
Both bills have garnered opposition from agricultural groups, including the California Cattlemen’s Association (CCA) and the California Farm Bureau Federation (CFBF).
Pat Wirz, a grape grower in San Benito County, wrote in a CFBF editorial the bills would “impose new burdens on legal water diverters to submit data and records to the water board and, in some cases, to pay for studies by board staff to investigate the diverter’s very own water right.”
In its July 10 Legislative Bulletin, CCA said SB 389 “could still impose additional administrative burdens upon water rights holders and could still jeopardize water rights targeted for investigation by the SWRCB” despite amendments to the bill softening the language.
The bills are also opposed by the Association of California Water Agencies (ACWA) and the California Chamber of Commerce,
Kristopher Anderson, a legislative advocate for ACWA, told the Los Angeles Times the bills “present a foundational change in the way California’s water rights system is implemented, managed and enforced.”
Anderson said the bills would create uncertainty and lead to unintended consequences not only for water rights holders, but for communities across the state. — Charles Wallace, WLJ contributing editor
