For the first time in decades, Sacramento lawmakers appear poised to do something about California’s dysfunctional water rights systems. There are three promising policies making their way through the Legislature this session. All three bills have just come out of the committee review process and are scheduled for a vote on June 2. These incremental changes are a long-awaited start to address California’s outdated and unfair water rights system.
Package of water rights bills before the Legislature provides critical updates to the ability of the State Water Resources Control Board (“Water Board”) to make informed and timely decisions on water management and build climate resilience for the future for everyone in the state.
“The water is protected for the use and benefit of all Californians. California waters may not be owned by individuals, groups, businesses, or government agencies.”
State of California water table
As I explained recently, the origins of California’s water rights systems are steeped in 19th century bigotry. The system privileges one class of high-level water rights holders to the detriment of others. Much must be done to change California’s water rights system, yet even communities that have been “systematically marginalized” by the system share an interest in improving its enforcement, including stopping water theft, as described in the 2022 California Reduction Cases Amicus Brief.
These bills are simple reforms that do not represent a paradigm shift, but instead provide the state with common-sense tools and oversight authority to ensure that the current water rights system works. If approved, they will reduce uncertainty and facilitate more adaptive water management.
The three modernizations of water rights under deliberation are
Should we expect a political showdown and a stormy fight on the floor? Or will the California Senate and Assembly be willing to pass common-sense modernizations to adjust the size of the water rights system to the challenges posed by September 21?street century?
Let’s dive into each bill and explore why California needs them to be signed into law and how the bills could improve the water rights system.
Assembly Bill 460 clarifies the Board’s emergency powers to hold illegal water users accountable
AB 460 (Bauer-Kahn) protects farmers, ranchers, tribes, disadvantaged communities, wildlife, and other users from bad guys who try to take advantage of the lax water rights enforcement process at the Water Board.
This legislation is necessary to provide the Water Board with the ability to administratively provide “interim relief.” In other words, they need authority to issue temporary restraining orders to immediately stop water theft and prevent irreversible damage to other water users and/or the environment. This bill would only affect those who violate existing law and does not introduce new restrictions on legal holders of water rights. It also increases financial penalties to better discourage water theft.
One of the motivations for AB 460 is to prevent another “Shasta River riot” or “showdown” that made headlines in August 2022. The Shasta River Water Association (SRWA) deliberately and illegally diverted flows of up to 30 cubic feet per second of the Shasta River east of Yreka for 8 days in direct violation of the Water Board’s emergency drought restriction orders. During this period, the river’s flow decreased by one third of the minimum flow required in summer (18 of 50 cubic feet per second). That flow is necessary to protect the habitat of species like juvenile salmon. SWRA was fined just $4,000 for the theft of water.
SWRA delivers water to a group of about 110 farmers and ranchers and a sawmill located between the cities of Grenada and Montague, near the Oregon-California border. That fine came to $40-50 each. The SWRA is a principal water rights holder with a single 1912 preemptive water right to irrigate 3854.77 acres, enacted by a 1932 court decision:
SWRA’s actions last August caused irreparable damage to salmon and tribes in the basin. The Shasta River is one of the last producers of Klamath River salmon.
During the Assembly’s February water rights briefing hearing, Karuk Tribal Council member Arron “Troy” Hockaday (Karuk) spoke. Councilman Hockaday’s contribution to the hearing begins between 2:11 and 2:26, and is well worth listening to.
Driven by drought and water quality conditions in the Klamath River, since 2017 the Karuk have vowed to harvest just 200 salmon for their ceremonies. As he explained, the tribe continues the practice to this day, in an effort to protect their own future needs, they limit their current use and remind us that fish are the most high-level water rights holders. Hockaday described how just two weeks before SRWA’s illegal diversion of the Shasta River, a storm passed over the McKinney Fire and sent ash and debris into the river, creating a 50-mile stretch of the Klamath River without oxygen, which killed tens of tens of thousands of fish:
Then, two weeks later, the farmers tell us that they are going to draw water from the Shasta River. And they took it away. I cried that day, I’m still emotional right now. Living here and seeing what they did is devastating. It is our future. It is our future for our children, our culture, our way of life. And getting kicked when we’re already down is a very sad day.
Councilman Arron “Troy” Hockaday (Karuk)
Perhaps this is an extreme and flagrant example. But with climate change, more droughts and lean periods ahead, could this showdown set an ugly precedent for other seniors rights holders? AB 460 seeks to avoid just that.
Due to current law restrictions, it may take weeks or longer for the Board to stop unauthorized water use. Illegal diverters like the SWRA can drain rivers in the meantime, as they did last August, while the Board goes through a complicated process to stop water theft.
In addition to giving the Water Board the authority to immediately stop water theft, AB 460 increases enforcement penalties for those who violate current law and allows the Water Board to immediately stop water theft such as August 2022. If AB460 is enacted as a proposal, violators could be subject to fines of up to $10,000 per day and $2,500 per acre-foot of water diverted.
Assembly Bill 1337 levels the playing field for all rights holders
The second bill before the Legislature, AB 1337 (Mechas), gives the Water Board the authority to restrict all water rights when there is a shortage. During California’s frequent droughts, the Water Board needs to be able to balance residential, cultural, agricultural, industrial, and environmental water demands. Some high-level water rights holders have sued the Water Board over its orders to stop (reduce) water use during drought emergencies.
The 2022 California Court of Appeals Curtailment Cases ruling suggested that a legislative solution, provided by AB 1337, is needed to give the Water Board broader authority to enforce the current water rights system, including older water rights holders. Recently, reporter Dan Walters summarized the legal history behind this bill. As he explains it, AB 1337 would finally give the Water Board “the legal authority to restrict river diversions, even by those who now hold the most important water rights, those obtained before the state asserted authority over water in 1914”.
I previously explained how unfair the current system is, in part because pre-1914 water rights were generally not available to minorities. Allowing the Water Board to have jurisdiction over this group of high-level water rights holders ensures that everyone participates equitably in the state’s water system.
Senate Bill 389 gives the Board authority to verify claims by older water rights holders
Surprisingly, the main classes of water rights still do not require any type of permit or license from the Water Board. As the Water Board explained in February, these represent approximately 45% of all water rights in the state and account for 30-35% of all surface water diversions by volume. The bill gives the Board the ability to gather information to investigate these water rights claims and determine if they are accurate or, as is sometimes the case, inflated. Verification of elders’ water rights could make more water available to other rights holders during droughts.
SB 389 (Allen) would give the Water Board the ability to investigate and verify pre-1914 rights by determining whether a diversion is based on its type: riparian right, appropriation, or some other basis. A unified permitting system, as proposed in this bill, would “reduce uncertainty for all rights holders and allow for more efficient and transparent real-time water management,” according to a 2015 PPIC report.
How can you help?
For the first time in decades, our state legislators are taking on some of the most broken pieces of the current water rights system. However, there is fierce opposition from the water industry to stop them and preserve the status quo. UCS and our coalition partners are asking for public support to improve the outdated water rights system.
Together, if approved, these bills could give the Water Board the ability to regulate all water rights holders in the state equally; immediately stop water theft that could cause irreparable harm to others; and to actually identify and verify the oldest water rights claims in the state.
These modest changes are a first step in modernizing the water rights system for the challenges of the 21st century that lie ahead.
You live in California? Click here to get in on the action!