Water rights have garnered increasing attention as water managers and decision-makers grapple with how best to respond to changing conditions. At the 2022 Annual Environmental Assembly of the Planning and Conservation League, a group of water law and policy experts presented eleven recommendations for modernizing California’s water law system for the 21st century. Those recommendations didn’t suggest a wholesale changeout of the current system but rather recommended incremental steps and more tools for the State Water Resources Control Board to be able to confront these challenges.
The 2022 Recommendations
Implementing the Human Right to Water
- Explore funding sources for NGO and Tribal participation in State Board and Regional Board Proceedings modeled after the California PUC.
- Require at least one member of the State Board and the Regional Boards to be qualified in the field of water supply or water quality related to environmental justice.
- Implementing the Human Right to Water by imposing a duty upon Groundwater Sustainability Agencies to mitigate for adverse effects due to groundwater extraction on domestic wells.
Updating water rights administration to address drought and climate change
- Revisions to the Statutory Adjudication Proceedings – Granting the State Board the authority to initiate and inclusion of interrelated groundwater
- Improving surface water rights verification – board-initiated verification proceeding, the burden of proof of claim on the claimant, and forfeiture reform
- Interim Relief Authority – SB 681 (2009-Pavley)
- Real-time monitoring of diversions and use – pilot projects and report
- Require State Board adoption of regulations to set up practices and methods for water availability analyses in water rights proceedings that address the effects of climate change on anticipated watershed hydrology
Addressing the extinction crisis facing California’s native fisheries
- December 2023 deadlines for completion of Sacramento River/Delta Plan update and the implementation of the San Joaquin River/Southern Delta Plan update
- Amendment to Section 5937 of the Fish and Game Code to require consideration of water temperatures as well as flow
At the 2023 Assembly, two of the participants in the group, Richard Frank, a Professor of Environmental Practice and Director of the California Environmental Law & Policy Center (CELPC), and Jennifer Harder, a Professor at University of the Pacific McGeorge School of Law, returned to discuss the progress made in last year’s legislative session and what pieces of legislation might be moving forward this year. They were joined by Michael Claiborne, directing attorney for the Leadership Counsel for Justice and Accountability.
Richard Frank began by saying that California is confronting 21st-century water challenges of climate change, drought, and other factors while relying on 20th-century water infrastructure and a 19th-century antiquated and outdated water law system. The water rights system may have worked reasonably well in the 19th century when California had a couple of million people at the most, and there was plenty of water to go around. But fast forward 175 years, and California now has 40 million people with one of the most diverse ecosystems and environments on the planet and a shrinking amount of available water for the environment, cities, agriculture, and other commercial needs.
“The problem, from my perspective, is that our water rights system is too hidebound, not nimble enough, not flexible enough, and not contemporary enough to deal with these challenges effectively,” he said.
Jennifer Harder said the focus needs to be on the State Water Board, the agency charged with allocating and protecting water resources. She explained that agencies generally do not micromanage daily; they have a very specific statewide purpose. They assess data, collect data, develop a plan, determine the statewide policy to protect the collective, and provide space to work within those parameters. And they enforce that system.
“This is how we operate between agencies and the public,” she said. “If I could imagine the most ineffective system possible, it would be a system in which the policies and rules developed by that agency only apply to some and not others. And yet that is exactly the system that we have in California. So from my perspective, the most important reform that we need to focus on is clarifying the authority of the State Water Resources Control Board. The State Water Board is the agency charged with the broadest responsibility for protecting the state’s precious water resources. And I specifically recommend that we focus on ensuring that the water code uniformly provides the Board with the regulatory and enforcement authority needed to regulate and enforce over all water rights, regardless of the type of right.”
She explained that riparian rights are grounded in land ownership and focused on surface water. Rights that aren’t grounded in ownership of land but depend on diversion and application to beneficial use are appropriative rights; those that predated the Water Commission Act adopted in 1913 are pre-1914 rights, and those that came subsequently are post-1914 rights. Of those water rights, the Board only has clear unquestioned authority over the permits and licenses issued after post-1914.
“Now, the California Constitution gives the board regulatory authority over all those rights, but the Constitution is very general. And it, in fact, invites us to adopt laws to implement the authority it gives to the Board. And I think we need to fulfill that responsibility.”
Michael Claiborne noted that the state recognized the Human Right to Water in 2012, yet much work remains to be done. A million Californians still lack access to safe and affordable drinking water in their homes. It’s a problem that disproportionately impacts communities reliant on small community water systems and domestic wells that are groundwater-dependent communities.
“This is a racial justice issue,” said Mr. Claiborne. “You’re more likely to be exposed to pollution in your drinking water, to have a dry well or a well failure, and to be at risk of and experience a water shut off if you’re a person of color or a household of color, and that’s something that absolutely needs to be addressed.”
His organization has worked with Tooleville in Tulare County, a small community with water pollution problems, and has experienced well failures due to the overpumping of groundwater in the area. They are working to connect to the water system to the nearby city of Exeter, but that’s a long-term project, and the townspeople are still years off from having safe water.
Affordability is also an issue with towns like El Porvenir in Fresno County, a farmworker community with pollution problems and unsafe water that is considering a rate study that would raise water rates to $290 a month, not including the cost of the sewer.
Mr. Claiborne offered four solutions:
- Organizing meaningful community engagement, I don’t think we will reach any of our goals if impacted communities aren’t meaningfully involved in developing and implementing the solution, he said.
- We need much better source protection, both through pollution control and the implementation of the Sustainable Groundwater Management Act.
- Drinking water solutions, such as treatment, funding consolidation, or digging new wells for water supply; funding and legal tools are available to do this.
- Address the affordability crisis in the state by implementing a low-income water rate assistance program.
Progress made in the 2022 legislative session
After the water rights recommendations were published last year, three bills went through the legislature directly related to the recommendations.
SB 1205, authored by Senator Allen, mandated the State Water Resources Control Board develop regulations addressing how climate change is incorporated into assessing water availability for new water permits. While the recommendation was to address the entire water rights system, the legislation only the post-1914 permits and licenses. It specifically says that the Board has to consider climate change when it assesses the availability of water for appropriation; so, as the Board goes through a water availability analysis, it must integrate climate change.
Ms. Harder pointed out that even without this legislation, accurately determining water availability, as a factual matter, is a fundamental obligation of the Board as an administrative agency and an instrument of government.
“It’s required to make decisions that are accurately grounded in facts,” she said. “It was our belief that the board has existing authority and an existing obligation to integrate climate change into not only water availability but into the administration of water rights.”
“So it’s wonderful that we enacted this bill,” Ms. Harder continued. “At the same time, as the Board thinks about climate change and considering water availability in the permit system, it also should be thinking about integrating the climate change facts into its administration of the water rights system, including the extent to which it does have some power over those pre-1914s and riparian rights.
AB 2639 was a bill that mandated that the Board finalize and adopt a plan for the Bay Delta Water Quality Control Plan (or Bay-Delta Plan). The Bay Delta Plan is critical to the water quality and ecosystem health of the Bay Delta system and was last updated by the Board in 1995, 28 years ago. Both the California Water Code and the Federal Clean Water Act require that water quality plans be reviewed and updated regularly.
“The most important component is updating flow standards to protect the Bay-Delta fisheries, which are in dire peril and part of an ecosystem that is crashing, and has been for the last several years,” said Richard Frank. “In 2018, the Water Board announced a framework for updating the plan and acknowledged the urgent efforts to address the water quality problems and the imperiled fisheries in the Bay-Delta ecosystem. But that’s pretty much where it ended.”
One of the recommendations in the report was for the legislature to step up and direct the State Water Board to follow its legal obligations and update the Bay-Delta Plan and provide a hard deadline to do that. So SB 2639 would have imposed a hard deadline of December 1, 2023, to complete the report by the Board and to prevent the Board from granting or extending any water rights permits until such time as the plan was completed.
AB 2639 passed the Assembly Water Parks and Wildlife Committee but died without ever receiving a floor vote. Mr. Frank noted that last December, environmental justice and tribal groups filed a petition with US EPA for a rulemaking proceeding that would order the State Water Board to update the plan and require compliance with the Clean Water Act.
AB 2108 was an effort to direct the State and Regional Water Boards to make affirmative outreach efforts to racial minorities, disadvantaged communities, and rural communities that lack the resources in many instances to participate in board proceedings that have direct relevance to them. The recommendation was also that funding be provided to those groups to cover their travel costs and expenses to participate. AB 2108 did pass in the legislature but without all of the provisions in the recommendation.
“Speaking for myself, I fervently hope that we redouble our efforts to pursue this initiative in the 2023 session,” said Mr. Frank. “I think it’s a timely and overdue action, and hopefully, we have better chances and prospects in the legislature this year. This is not a new concept. Both the California Public Utilities Commission and the California Energy Commission have these programs in place for their regulatory proceedings and provide funding to facilitate participation by underserved communities and communities of color. So there’s a strong precedent here, and it’s one that should be followed.”
Michael Claiborne said AB 2108 has some good components. “One of the things that we liked best about that bill in its final form was that it requires the state and regional boards, when issuing permits, to consider whether the permit will have any disproportionate impact on environmental justice or tribal communities. It will hopefully have a good impact on decision-making at the state and regional boards and lead to better source protection. The recommendation to pursue community capacity building is still something that we’re very interested in, and we would love to see representation for EJ and tribal communities at the state and regional boards in future legislation.
Water rights bills moving forward this year
About nine years ago, Richard Frank published a report that found that the Water Board had fewer financial and personnel resources to enforce its water rights system than in the 1960s. “To quote President Abraham Lincoln, with the absence of enforcement, laws are nothing more than good ideas,” he said.
Last year, during the multi-year drought, the State Water Board issued curtailment orders for the Shasta River in Siskiyou County, which farmers and ranchers chose to ignore. Instead, they proceeded with their diversions, drawing about two-thirds of the river’s flow out, causing adverse ecosystem and fisheries impacts. In a story in the Sacramento Bee, the farmers and ranchers acknowledged the fines and penalties would be but a drop in the bucket compared to the profit they could make on their agricultural activities. So the fines weren’t a deterrent to them violating the law.
Another challenge is that the State Water Board’s enforcement authority does not include the ability to provide interim relief when there’s an urgent problem of violation of the water code. Courts can provide interim relief in the form of a temporary restraining order or preliminary injunction while the merits of the case play out, but before the State Water Board can pursue an enforcement order, it has to conduct a hearing process, which gives the violators a lot of time and running room to continue their illegal activities.
“While this wasn’t one of our 11 Working Group recommendations, we came to the conclusion that the boards penalties system and the maximum amount of administrative penalties they can impose on violators of the water code and Water Board orders are too minimal,” said Mr. Frank.
AB 460 would bolster the Board’s enforcement authority by granting the board interim relief power in its administrative proceedings. The legislation would also significantly increase the financial penalties that the Board is authorized to assess to up to $10,000 per day for each violation and $5,000 for each acre-foot of water diverted illegally or without authorization from the Board.
SB 389 is directly related to the recommendation on enhancing powers of permit verification for the Board. Jennifer Harder said this proposal is central to addressing the Board’s fractured authority.
“The idea is that the Board should have the authority to ensure that all water users are diverting and using water according to valid water rights, and diverting and using water within the scope of those water rights,” she said. “It’s fundamental for a board tasked with administering a water rights system. At a minimum, the Board should be able to make sure people are working within their water rights.”
If a water user is diverting water without a valid water right or diverting and using water outside the scope of their rights, then they are encroaching on someone else’s water; that water they are using may belong to another water user or the environment.
“So it’s foundational to ensure that these users have valid rights and are staying within the scope of their rights,” she said. “Surprisingly, the Board’s authority to take these actions is not clearly stated. There are several existing authorities under which the Board might assert such authority, but the language isn’t clear. There’s a pernicious effect when you have language in the code that is unclear or even, in some cases, contradictory about the Board’s authority; it allows for the threat of litigation, which creates the potential for delay, for expense, and for confusion that causes negative results later.”
“The potential for that litigation implicates negotiating power and political power in the process,” Ms. Harder continued. “It’s really important that we don’t allow poorly written laws to create political power and negotiating power, and unnecessary expense and delay where these things should not exist.”
Currently, the State Water Board has only a handful of tools to verify water rights, and each is flawed. For example, one provision of the water code gives the Board the ability to conduct an investigation of stream systems, but this particular provision doesn’t clearly say that the Board can investigate riparian and pre-1914s, which creates the pernicious effect of that threat of litigation and the assertion of political and negotiating power.
Another provision of the water code gives the Board the authority to adjudicate rights on a stream system. In this case, it does expressly reference pre-1914 and riparian rights, but the Board isn’t allowed to initiate the adjudication; it has to come from the water users. And the adjudication itself can’t focus on a particular water user to the exclusion of others; it has to decide all the rights in the system, which is infamously a lengthy, expensive process that can take decades to resolve and doesn’t actually solve any problems, she said.
So the verification proposal would fix the problem by simply giving the Board the clear authority to verify water rights. “This is a very basic rational provision,” said Ms. Harder. “The verification proposal would assign the burden of proof in that process to the water right holder, simply because, thinking rationally and simply, the water right holder has the best information about their water rights. If you live in a home and someone says, Hey, do you really live here? You’re the one that has the deed, and you’re the one that can demonstrate that you live there. So, likewise, the water right holders should have the burden of proof in those processes.”
Seeking a legislative fix for the Appellate Court curtailment decision
In California, water right holders access water according to a priority system. Generally speaking, riparians have the most senior priority, followed by the pre-1914s and post-1914s based on the date when they first diverted or filed their water right application.
“Priority essentially means first in time, first in right, so curtailment is the idea that when there’s not enough water to go around, water right holders are supposed to reduce their diversions consistent with their priority,” said Jennifer Harder. “Historically, this process has been self-policing; the water users were expected just to do the right thing and stop diverting during droughts. However, in recent droughts, it’s been clear that we needed that state manager to say, ‘Here’s how much water is actually available in this water system. Here are all the water rights in that water system with their respective priorities. So given this amount of water available, and given these water rights, here’s who no longer has access to water until it starts raining.’ This is actually how our water rights system is supposed to work. It’s the foundation of how water rights work. It’s not taking away anybody’s water; we’re just implementing the system we have.”
So the Board attempted to implement these curtailments and has been sued in several cases. The appellate court issued an opinion on the California water curtailment cases in 2022. That case focused on the Board’s curtailments from 2014-2015. At the time, the Board had relied on a particular provision of the water code 1052 to implement the curtailments. That provision contained language which was somewhat unclear but could be interpreted to exclude riparian and pre-1914 rights, so it only applied to post-1914 rights.
“Prior to the curtailment cases, there had been several important cases recognizing that this language didn’t limit the board’s authority over riparian and pre-1914 rights,” said Ms. Harder. “Those prior cases recognized that the board had the authority to bring individual enforcement actions for using water outside the scope of their rights, or when they have forfeited water, for example, by not putting it to beneficial use and any other number of transgressions that were recognized under the common law.”
“However, in this 2022 case, the Sixth District Court of Appeal found that allowing the Board to rely on Water Code 1052 to regulate the use of water between an entire group of water users, not an individual water user, was a step too far, according to the court, in light of this language authorized in this division. Let’s leave aside the legal nuances of how we might address the reasoning behind that decision. From a practical matter, this ruling creates a mess because when one uses water outside their priority, that is definitionally using water outside the scope of their right. And if the Board can’t tell a group of people at once how everybody is supposed to be using water, then there’s no practical way for the Board to enforce the water rights system; it becomes wholly impractical.”
The Sixth District Court of Appeal recognized that prior court decisions had approved the Board’s ability to go after individual water users but not after a group of water users makes no sense, but the court pointed out that it is not the court’s job to fix it; it’s the legislature’s job.
“So what we’re doing with this curtailments cases fix is taking the court up on that suggestion and fixing the problem created by the pernicious effect of this unclear language in the water code,” said Ms. Harder. “Let’s fix the language and make the system work.”
What about Fish and Game Code Section 5937, the public trust protections, or more water rights enforcement?
In California, unlike many other states, the environment can’t request an appropriative water rights permit in the same way consumptive water users can. Nonetheless, Mr. Frank said the legislature has incrementally, piece by piece, provided ways to reserve amounts of water or allow traditional water rights holders to grant or transfer some of their water to environmental values. But in times of drought, the first cuts are to water for the environment; the environment has been hit and damaged the hardest.
Mr. Frank noted that there is Article 10, section 2 of the California Constitution that was enacted by a voter initiative in 1926 that basically says all water use in the state must be reasonable and can’t be excessive. And there is a court decision saying that what is reasonable can vary with the location, circumstances, and era, so it’s a flexible standard. And the public trust doctrine, which the California Supreme Court explicitly applied to water rights in California in the iconic Mono Lake decision, National Audubon versus Superior Court, remains a very powerful tool, he said.
He pointed out that the public trust doctrine and Article 10, Section 2 apply to all water rights, so tools are available, but they may not be adequate for the task.
Jennifer Harder agreed that reasonable use, public trust, and other tools the Board has are part of the system, but the pernicious effects of lack of clarity, the potential for litigation, political power, and negotiation power – all those things lead to underutilization of those tools.
“My first best recommendation is to shore up the State Water Board’s authority to make it clear that it can use these tools whenever it needs to and that it has the enforcement power and the penalties that it needs to make the system work,” she said. “We already have the outlines of the system; we need to clean up a few things to make sure it works as it should. It’s important to recognize that in this effort, it is not necessarily environmental interests and vulnerable communities against water users; a functioning system benefits all water users. The water users have resisted a strong state board over the years, but I think more of them, in terms of water use, would benefit from a strong state board. And it would increase the efficiency of how they do their business and reduce their transaction costs in the long run.”
“So I think it’s important for everybody to be talking about these reforms in a way that makes it clear that if we adopt these reforms, we will have an administrative system of the caliber that we should have in a state like California with such a beautiful environment, important recreation, communities we need to care for, and a strong economy,” said Ms. Harder. “Everybody benefits.”
Richard Frank noted that in the 60s and 70s, it really was environmentalists against the agricultural and municipal water users; the environment didn’t have a seat at the table, either in terms of political influence or administrative proceedings. That has changed; environmental organizations can nowadays ally with municipal water users.
“There’s a lot of enlightened leaders doing a lot of innovative things to preserve water values because they realize that recycling water and conserving water is good for municipal finance,” he said. “It’s also good for the environment on which thriving communities depend.”
Richard Frank pointed out another long-overlooked interest group has been Native Americans. “We have more Native American tribes here in California than in any other state. And it’s part of the sad history of Native Americans in this country that their water rights have often been ignored. There is a major case before the US Supreme Court right now involving the Navajo Nation and its rights to Colorado River water. I think those rights and the legitimate expectations and needs of Native American communities, not just in California but throughout the country, are increasingly recognized by other water users and decision-making bodies such as the State Water Board. So I think that is progress.”