Fueled by a series of recommendations from law scholars, legislators have filed measures to overhaul aspects of California’s water rights system to set new priorities for the environment and for disadvantaged communities. Irrigation districts and farm groups are lining up in opposition to bills pushing the reforms and advising lawmakers the system is working as designed.
The Assembly Water, Parks and Wildlife Committee kicked off the debate last week with an informational hearing that was heavy on reforming senior water rights but kept farmers out of the discussion.
That did not go unnoticed by David Guy, president of the Northern California Water Association (NCWA), who pointed out that out of nearly a dozen speakers, he was the only one to represent water users facing curtailments last year. Committee Chair Rebecca Bauer-Kahan organized the hearing to highlight a set of proposals from a group of law academics and former regulators assembled by an environmental group known as the Planning and Conservation League (PLC). Their report a year ago propelled a shockwave of scorn throughout the water policy arena, with local water agencies blasting the authors for having never managed water before and offering only theoretical aspirations.
Guy elaborated on how settlement contractors in the Sacramento Valley, typically guaranteed 75% of their allocations, received just 14% last year, devastating local economies that depend on agriculture.
“Let me tell you, that is a painful thing for people,” said Guy, who spoke near the end of the four-hour hearing. “That includes rural communities, disadvantaged communities. That includes farms, and includes [wildlife] refuges and includes the whole suite of things.”
He described working closely with the State Water Resources Control Board on improving its technical assessment for water available during dry conditions and to carefully track it, prohibiting any illegal water diversions. He has been on board with modernizing the agency’s water rights system, which involves digitizing thousands of documents and organizing its archaic database to better track existing claims.
David Guy, NCWA“The reality is I think it has worked,” he said of the water rights system, adding that NCWA has likely been one of the most aggressive proponents of a robust enforcement process over the past decade.
He applauded lawmakers and the Newsom administration for dedicating $82 million in recent years to that end, with another $31 million proposed for the next fiscal cycle.
Like Guy, Russell McGlothlin, a water attorney at the firm O’Melveny who has worked with farm groups, urged the lawmakers to “avoid proposals to scrap our existing structure” or to reallocate rights. Yet he reasoned that efforts aimed at “tightening, defining, monitoring and enforcing water priorities” within the current paradigm would foster greater certainty in regulating diversions.
“Water is already an inherently uncertain resource because it's shared, it's transient and it's variable,” said McGlothlin. “These inherent challenges are accentuated in California
Two different water structures have merged under California common law, he explained. The riparian structure is dominant in the eastern half of the country. But the state has also applied prior appropriation, found throughout the West.
He blasted the PLC proposals, arguing that overhauling such a complex system would escalate uncertainty, increase conflict, draw more litigation and perpetuate inefficient water policy.
“The better approach is to lean in to our existing system,” he said.
Yet Bauer-Kahan cited extreme climate swings in California as reason to question “whether our water rights system—which still adheres to the fundamental principles put into place in the 19th century—is a system that can perform in our climate change present and our future.” The Orinda Democrat referenced an incident last summer when ranchers in Siskiyou County continued to illegally divert water from the depleted Shasta River despite the water board ordering them to cease diversions and fining the group $4,000.
Water board staff agreed. Yvonne West, the board’s enforcement director, said the curtailment order was “clearly not a deterrent” and “sometimes the economic benefit of noncompliance is significant.”
“This is not an easy conversation,” said Bauer-Kahan. “But it's long overdue.”
Leading the charge to reform water rights was Felicia Marcus, the controversial former water board chair who championed ratcheting up unimpaired flows to protect endangered fish, leading Gov. Gavin Newsom to remove her from the board as one of his first acts in office.
“In theory, we should be curtailing in many more years than we do,” said Marcus, who argued the board needs more staff to enforce curtailments and to implement the update to the Bay-Delta Water Quality Control Plan that she spearheaded. “The crises ahead will make our crises today look like a picnic.”
Richard Frank, an environmental law professor at UC Davis, added that lawmakers should grant the board the same authority that the court system wields for issuing restraining orders in civil disputes. He called the board’s current civil penalties woefully inadequate.
“The Shasta River situation is a poster child for why and how that is the case,” said Frank. “But that's by no means an isolated incident.”
Bauer-Kahan is taking up the fight for that reform with Assembly Bill 460, which would enable the board to fine a water user up to $10,000 a day for violating an order to cease diversions. Asm. Buffy Wicks of Oakland, meanwhile, has introduced a bill to enable the board to curtail senior water right holders without providing due notice ahead of the order and to levy penalties for each day and for every acre-foot of water diverted.
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Yet Erik Ekdahl, the board’s deputy director for water rights, pointed out that complaints on the Shasta River watershed alone accounted for a quarter of all statewide complaints. In his monthly drought updates to the board, Ekdahl has stressed that the diverters responsible for nearly all the water use have complied with curtailment orders, showing success in cutbacks, and those that have continued to divert illegally account for a small fraction of the overall diversions.
Russell McGlothlin, O'MelvenyBut that was not enough to assuage Jennifer Harder, a professor at University of the Pacific, McGeorge School of Law, who described the priority rights system as self-policing. She argued the only oversight comes from the court system and only after the violations have already occurred.
Harder targeted pre-1914 and riparian rights, which fall mostly outside of the board’s authority—though the agency did curtail these users for the first time last year. She called these rights “a recipe for dysfunction” and contended the state should force these users to prove their claims and show they are using their water rights. Seizing on that argument, Senator Ben Allen of Santa Monica has filed a measure to investigate water right claims for upstream diversions.
The reform efforts over the past year have frustrated Danny Merkley, who until recently led policy engagement on water resources for the California Farm Bureau. He warned farmers in December to get their paperwork in order to prepare for intensifying scrutiny over senior rights. Such claims to rights often trace back to a single piece of paper initially tacked onto a tree that staked a claim to a water right long before formalized legal practices were commonplace and then it was passed down through multiple generations within a family. Proving during years of extreme drought that the water users still implement those rights can be challenging. Merkley feared the board may convert the claims to water rights benefiting fisheries and other environmental pursuits.
As government affairs director for the Western Growers Association (WGA), Gail Delihant has strongly opposed the PLC proposals, condemning them as socializing water in the state. She also defended the Shasta River ranchers, reasoning they had to take desperate measures to keep their cattle alive amid drought and extreme heat.
“A wholesale change of water rights?” questioned Delihant, in an interview with Agri-Pulse. “Do you want more farming to go out of business after a million acres are going to go away because of [the Sustainable Groundwater Management Act]?”
The Legislature and administration, she argued, have been managing California’s water for scarcity and not abundance. She welcomed Senator Anna Caballero’s proposed reform to that approach in Senate Bill 366, which would “hopefully push that needle” by committing the Legislature to establish long-term water supply targets.
Delihant and the WGA team have been going door-to-door in the Legislature, educating the many new lawmakers on water issues while preparing them for the battles to come this session.
“They're going to hear more and more about it as we testify against these bills,” vowed Delihant.
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