Four bills that threaten to destabilize California’s water rights system and revoke rights upon which communities have relied for decades are moving in the Legislature despite concerns raised by the California Chamber of Commerce and coalitions of agricultural and business groups and water agencies.
The water rights bills opposed by the coalitions are:
• AB 460 (Bauer-Kahan; D-Orinda), giving the State Water Resources Control Board broad enforcement authority that differs vastly from current authority and sidesteps fundamental constitutional due process protections.
• AB 1337 (Wicks; D-Oakland), giving the State Water Board broad authority to curtail water rights of any seniority or claim of right. The curtailments may be issued without a hearing, depriving water rights holders of due process protections.
• SB 389 (Allen; D-Santa Monica), empowering the State Water Board to investigate claimed water rights with little process and stacking the deck against water rights holders.
• AB 1205 (Bauer-Kahan; D-Orinda), calling the transfer or sale of water rights “for profit” from agricultural land a waste and unreasonable use of water if an investment fund is involved.
AB 460 gives the State Water Board the ability to issue an interim relief order based on an alleged violation of a laundry list of water-related laws. The board can order the water diverter to stop the diversion immediately, providing little or no opportunity for the diverter to defend itself.
The bill also prevents the recipient of an interim relief order from seeking judicial review, further insulating the water board from judicial scrutiny.
An existing process already enables the water board to go to court to obtain a temporary restraining order to stop water diversions that are affecting fish and wildlife. A temporary restraining order is more effective and enforceable than an interim relief order and is issued by a neutral party.
AB 460 allows an interim relief order to be issued without notification and to remain in place for 180 days (six months) — an entire irrigation season during which the water diverter has no real opportunity to defend itself while its right to divert water has been suspended.
The CalChamber has offered amendments to deal with the perceived enforcement gap that AB 460 aims to address.
The impact of AB 1337 goes far beyond managing scarce water supplies during a drought and would be an unprecedented expansion of the State Water Board’s authority over riparian and pre-1914 water right holders in all hydrologic conditions.
It in essence would allow the water board to adopt regulations as it sees fit and issue an order to curtail water use in non-drought years, thereby elevating curtailment from a measure of last resort to standard operating procedure.
That ability could allow the water board to supersede existing water management done through court decrees, by law, local agreements and other means, many of which have been in place for years or even decades.
SB 389 expands the State Water Board’s authority to affect all water rights in the state, empowering the water board to decide to investigate a water right holder’s claim or right with no meaningful threshold to trigger such an investigation.
The bill shifts onto the water right holder the burden of proving its right, rather than requiring the water board to show that the right doesn’t exist as claimed.
SB 389 also changes the law governing forfeiture of water rights in a way that, unlike other areas of law, would allow the State Water Board to take away water rights without the existence of a conflicting claim of right.
This change in forfeiture may create perverse incentives against conservation and other drought planning because using the entirety of the right would help protect against a claim of forfeiture in a future water board investigation.
Vague or missing definitions in AB 1205 raise significant concerns about the continued viability of essential water transactions in California and the flexibility needed to manage the movement of water around the state.
Many housing development projects need to acquire water via a contractual relationship or buy a right to obtain project approvals. Agricultural landowners and irrigation districts in the northern part of the state transfer water in dry years to help meet demands in the Central Valley and Southern California.
As the state continues to implement the Sustainable Groundwater Management Act (SGMA) of 2014, groundwater transfers and trading are seen as among the more efficient ways to satisfy needs while ensuring basin sustainability.
Studies of markets in Australia have indicated investor participation didn’t lead to negative impacts on agriculture or water users. More study of a perceived issue with water markets would be prudent.
AB 460, AB 1337 and SB 389 have been referred to the fiscal committees of their respective houses for further consideration, while AB 1205 is headed for a vote by the full Assembly.
The CalChamber continues to work with the authors and other opponents of these bills in seeking amendments to prevent the problems identified.