In August 2022, amidst a severe drought, the State Water Board ordered ranchers and farmers in Siskiyou County to cease irrigation. Initially facing fines starting at $500 per day, escalating to $10,000 after 20 days or a hearing, they chose to continue irrigating due to economic pressures. This decision led to a significant reduction in the Shasta River’s flow, endangering local salmon populations.
The incident underscored the State Water Board’s limited enforcement capabilities and the minor penalties for water rights violations compared to water quality infringements. As a result, there is now proposed legislation aimed at empowering the State Water Board to enforce water rights more effectively and impose deterrent fines for violations.
Navigating California’s complex water rights landscape has always been contentious. At the recent California Water Law Symposium, a panel explored the controversy, delving into the State Water Board’s enforcement powers and the proposed legislative measures designed to strengthen regulation in this area. The panel was organized by the University of the Pacific, McGeorge School of Law and moderated by Jennifer Harder, professor at McGeorge, and presented an excellent mix of viewpoints:
- Andrew Tauriainen, Attorney, CA State Water Resources Control Board Office of Enforcement
- Walter “Redgie” Collins, Legal & Policy Director, California Trout
- Rebecca R. A. Smith, Partner, Downey Brand, representing the water user perspective
The panel began with a set of presentations to set the table for the discussion that would follow.
REBECCA SMITH: Water rights, briefly
Anyone who has been through a legislative hearing, a curtailment hearing, or talked about water rights during drought or even in general knows it can get contentious fast. However, one nuance often lost in the mix is how complicated the water system in California is.
Article 10, Section 2 of the California Constitution states, “It is hereby declared that because of the conditions prevailing in this State, the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable and that the waste or unreasonable use or unreasonable method of use of water be prevented.”
It is this constitutional directive that water rights enforcement is oriented towards, but most of the time, it’s not that simple, said Ms. Smith. There are many players and rules that inform the administration of the water rights system in California; the State Water Board is a big part of that, but not the only part of the picture.
With a lot of competing demands, there are guiding principles:
- Water rights are usufructuary: you are using the water but not owning it—an important distinction.
- Water should be put to beneficial use and not wasted
- Water belongs to the People of the State of California
- State, local, and federal rules, courts, and contracts impact the exercise (and sometimes the existence of) water rights.
The administration of the water rights system is informed by California’s history, which creates significant challenges. Ms. Smith said that one of her favorite quotes in California water law comes from Justice Ronald Robie: ‘The history of California is written on its waters.’
“California’s history of water far predates many of our current structures,” said Ms. Smith. “So when we think about the way we administer the system, remember that it is a system that came to be long before our modern age and doesn’t always reflect some of the especially climate realities that we know today.”
There are several legal mechanisms for obtaining water supplies:
- You can have a contract for water from the State Water Project or the Central Valley Project. In this case, the underlying permit is held by the Department of Water Resources or the Bureau of Reclamation, which is then under a contract with a local water district to provide deliveries or transfers to individual users. This adds a layer of complication in environmental compliance and an additional set of players in using and enforcing that water.
- You can have a riparian right, which is acquired through ownership of land adjacent to a waterway and predates the current permitting system.
- You can be an overlying landowner in a groundwater basin and have a right to pump groundwater.
- You can have an appropriative water right which is when surface water is diverted for use on non-riparian lands.
Each water right has different sets of parameters based on the character of the right and depending on what the needs of the watershed are. A water right has a specified point of diversion and a particular place of use. A water right can be transferred to others or abandoned through non-use (otherwise known as ‘use it or lose it’).
Appropriative rights acquired after 1914 require a permit, whereas appropriative rights acquired before 1914 predate the establishment of the current system and do not require a permit, although there’s still a reporting requirement. The water rights system is based on priority; those with senior rights receive their full right before those with junior water rights (or, ‘first in time, first in right’).
ANDREW TAURIAINEN: State Water Board enforcement authorities
Andrew Tauriainen with the Office of Enforcement at the State Water Board began with the standard disclaimer that he is appearing on his own behalf, so any opinions are his own and not the Board’s.
The Office of Enforcement didn’t always exist; prior to 2006, prosecutors were part of the Chief Counsel’s Office. The Office of Enforcement was created as a separate legal unit with technical support staff who do investigations to support the Board’s prosecutions and those of the regional water boards.
The Office of Enforcement is analogous to a district attorney’s office; they are the prosecuting office of the Board. Their clients are the State Board, the Divisions, and the regional boards.
Mr. Tauriainen said that the nine regional boards handle primarily water quality matters, both permitting and enforcement, and do most of the legwork. Cases only come to the Office of Enforcement when ready for formal enforcement.
“We use a progressive enforcement model where we don’t pull out the biggest hammers until the gentle approach has not worked out,” he said. “The gentle approach we call informal enforcement. It’s notifying alleged violators that we think they have a problem that they need to correct. Staff try to work with them to come into compliance. If that all works out, we never hear about it in our office. We get the problem cases, so when they come to us, they’re usually ready for a bigger hammer.”
Most enforcement is discretionary; the federal Clean Water Act only mandates a small amount of enforcement, so it’s really a choice that the legislature and the state board have made to require enforcement, he said.
“We’ve enforced to level the playing field between those who comply with the law in this field and those who don’t, as those who don’t can sometimes get an economic advantage, they can cause harm to the environment, and they can cause harm to senior users,” said Mr. Tauriainen. “We’re here to try and prevent that or minimize it to the extent possible. And deterrence is a huge goal for the outcomes of our enforcement actions; we would like our enforcement actions to serve as a deterrent to similarly situated parties.”
Tools for enforcement
Mr. Tauriainen then turned to the available enforcement tools for enforcement, contrasting the differences between the tools available to the regional water boards for water quality enforcement with those available for water rights enforcement in Division 2.
Investigative tools: The Regional Board has had the authority for decades to issue enforceable information orders to dischargers suspected of violating regulations and to obtain administrative inspection warrants. For water rights, the authority to investigate has always been there, but new legislation clarified it, especially for investigating senior water right holders – those with pre-1914 and riparian water rights. As of January 1, 2024, the Board has the authority to issue information orders directing folks to provide information that is enforceable; if they don’t comply with those orders, they can be penalized with fines. The Division of Water Rights can now obtain its own administrative inspection warrants. Both the regional boards and the Division of Water Rights can participate in criminal inspections for cannabis enforcement.
Administrative injunctive tools: This is the most common tool used by the regional boards for water quality enforcement, especially for cannabis enforcement. Regional boards can issue cleanup and abatement orders, which are issued just on notice and comment and allow the regional Board to stop or require mitigation of pollution or nuisance conditions and threatened or ongoing wastewater discharges to the United States. However, he said the Board doesn’t have that type of authority for water rights. The closest is a Cease and Desist Order that has specific applicability and requires notice and a hearing if requested.
Civil injunctive tools: The regional boards have many potential civil injunctive options, such as injunctions and fines. There are few such tools available for water rights enforcement. “On the water rights side, we can ask the attorney general to seek an injunction preventing threatened or ongoing unauthorized diversions under 1052. If it’s cannabis related, city attorneys and county councils can obtain injunctions under that as well.”
Fines: The regional Board can administratively issue fines from $1,000 to $10,000 per day for unauthorized discharges and certain other violations; if it ends up in court, the fines could reach $25,000 per day for a Clean Water Act violation; $15,000 a day if it’s a Porter-Cologne violation. The water rights penalties are much smaller. The fines for unauthorized diversions are $1000/day plus $2500 an acre-foot if the state is in a drought and $3500 a day for unauthorized cannabis-related diversions. If it’s not a drought or if it doesn’t involve cannabis, the punishment is $500 a day, whether it is done administratively or judicially. If there is an existing cease and desist order that’s been violated, the Board can seek $10,000 a day.
“All of these are statutory maximums,” Mr. Tauriainen said. “The boards are required to consider various factors in setting the ultimate penalty when they issue an enforcement order. Those factors are different depending on which division of the water code applies. They are consistent within each division. But they do need to be considered in the orders.”
The regional boards have an enforcement policy adopted and approved by the Office of Administrative Law, which outlines a methodology for the final penalty amount. However, there isn’t such a thing for the water rights side, so each order must be taken on a case-by-case basis when applying those factors.
Lastly, the regional boards can terminate discharge permits for cause; how that would happen is typically outlined in the WDR or NPDES permit. The water rights division can revoke permits, but notice and a hearing are required.
Mr. Tauriainen then closed by outlining some practical challenges the Board faces with enforcement, especially water rights. “We have relatively limited tools, and everything on the water rights side does require a hearing if the diverter wants one (they always want one). If the diverter wants a hearing, we have to go through the entire hearing process. There is no interim relief type order that we can issue, whether it’s a paper hearing or even an abbreviated type hearing.”
“We have limited data,” he continued. “It’s really hard to know how much water is available for diversion in any particular stream, or especially somewhat complicated like the Delta, versus how much water is needed or demanded. And then the moderate penalties – there’s not a lot of deterrent effect to them given their size.
Water right enforcement chartRedgie Collins: Climate change and water rights legislation
Redgie Collins is the legal and policy director for California Trout, which prides itself on having a holistic and science-driven approach to restoration. They do about 60 restoration projects a year, from barrier removals to water rights transactions to put water back in streams in an effort to enhance the environments on which folks farm and ranch. Cal Trout has seven regional offices throughout the state, and community engagement is an important part of the work they do.
He presented a slide illustrating California’s variable hydrology. The map on the left shows average precipitation, with the northern parts in blue receiving a lot of precipitation and the red areas representing the drier areas. So California moves water throughout the state from the areas that have it to those that need it.
The challenge with relying on that level of precipitation is that California’s precipitation is highly variable year-to-year. The map on the right illustrates this: the dark blue areas have less variability and more predictability; when you look at California, it’s all the different colors, indicating it’s the most variable and hardest to predict the weather in the nation. And that volatility is expected to increase with climate change in the coming decades.
“Climate change is real,” said Mr. Collins. “We’re seeing its effects right now. And our climate is also getting warmer. When it gets warmer, there is more evapotranspiration. There is more evaporation from our water systems, so the water that does move through at very unpredictable rates is also drying quicker. This all leads to the smoothing runoff curve shown on the graph in yellow. We had less runoff in our state every single year since 1990.”
“So it’s important that we look at how we deliver water and make sure that everyone in California has access to water, especially in times of increased scarcity, which is sure to come.”
Water rights began in California during the Gold Rush when the settlers came and put a nail on a tree to claim that water. However, there was a vibrant history in California before the settlers came, and so there is a foundation of racism in California’s antiquated water rights system. Mr. Collins highly recommended the amicus brief written by the Stanford Law Clinic that provides a detailed history of water rights and how they were imposed on the citizens and non-citizens of California.
“The law is important,” said Mr. Collins. “What’s on paper is what we’re talking about here. What is enforceable in terms of water rights is really important. But laws. The only way you’re going to actually make effective change is by reading the tea leaves. And I think many folks in the legislature are starting to do so. And that’s why we’re having these conversations.”
Mr. Collins pointed out that for many years, groundwater was thought to be untouchable, and then the Sustainable Groundwater Management Act came about. “There’s a societal trend that we’re seeing early in, but the future of water rights will lead to change. It’s just a matter of time. So why is Cal Trout plugging this issue? Cal Trout believes that California’s future depends on healthy and clean water. Obviously, water availability is key for aquatic ecosystems we’re trying to protect.”
In August of 2022, a group of ranchers along the Shasta River looked at the existing ability to enforce water rights and decided that it just made more economic sense to go over their limit during their curtailment and just take more water than they actually had the right to have. “So they activated the diversion, and over eight days, they drained half of the flow of the Shasta River at the height of the drought and the hottest part of the summer. The only fine they had received was $50 per rancher. And they did this knowing that the State Water Board’s enforcement mechanisms could not stop it quick enough.”
So, three pieces of legislation are being considered to address these enforcement issues:
- SB 389 (passed last year): To obtain a more accurate evaluation of water usage in a given system, SB 389 grants the State Water Resources Control Board the authority to review, verify, and issue decisions on senior water rights claims not granted via the Water Commission Act of 1913 (the Act), namely pre-1914 appropriative and riparian water rights.
- AB 460: This bill would grant the State Water Resources Control Board authority to immediately halt illegal or wasteful uses of water that harm the environment or violate water rights permits and licenses and increase the fines associated with violations.
- AB 1337: This bill would give the State Water Resources Control Board clear authority to limit water diversions from all rights holders when there is a shortage, both during drought and non-drought years.
“Anytime you bring up water rights in the legislature, it’s never easy,” said Mr. Collins. “So we’re looking forward to continually working with a huge host of stakeholders, tribes, NGOs, and clean drinking water advocates, and to building that momentum making small steps towards pragmatic water rights changes, especially in the enforcement realm.”
The water user perspective on the proposed water right legislation
Moderator Jennifer Harder then gave Rebecca Smith an opportunity to provide a water user perspective on the legislation.
“Working in the water user area for quite some time, by and large, water users understand that our system needs to be enforceable,” said Ms. Smith. “If I have a valuable right sitting on the river, and I’m using that, whether it’s for irrigation or to make sure that schools and hospitals are getting their water – I want to know that that right is predictable and protected. And I want to be protected from bad actors.”
“However, if you’re a water user holding this right, which is essential to your function, you may recognize those parameters around it. But when you hear the word discretionary, you get very nervous about what those parameters might be. So those parties have a fair amount of mistrust and tension.”
There’s often a lack of nuance that is needed in water rights. “I’ll give the example of SB 389 last year,” continued Ms. Smith. “When it was initially introduced, it was a big problem for the user community. Folks were very concerned. What you heard from the bill proponents was that we’re just trying to memorialize what’s already the case: the state board can investigate water rights. And what you’ve heard from the users was that’s all very well and good, but the language of that bill is broadly expanding that in a way that makes us nervous. We don’t trust and feel very concerned about what will happen.”
SB 389 allows the State Water Board to ask for information orders or basically prove up the right. “When the bill was originally drafted, one thing that gave my clients a lot of heartburn was that there wasn’t a clear cause trigger. The Board can walk out any day and say, hey, I want to see the proof of your water right. If you’ve got a permit, that’s not such a big deal, but if you walk into my office tomorrow and say, I inherited this property on the Sacramento River, I’m told there’s a water right on it, pre-1914 or riparian, I’m going to tell you, we’re in for a big time and money commitment to figure out exactly what that right is. If you’re looking to prove up a riparian right, you’re going back to the land at patent. If you’re looking for a pre-1914 right, you’re trying to prove a history of use and development that goes all the way back to pre-1914. That’s a big investment. That’s not just show me your card, and you’re good to go.”
“What’s really important to the water user community is that when those proposals come in, they need to be practically implementable,” continued Ms. Smith. “We need our legislators to understand what the practical reality is of the language they are offering.”
Redgie Collins agreed. “The actual application of this for farmers and ranchers and folks that I work with on a regular basis in the Shasta Valley and the Central Valley with our projects with rice growers, it’s incredibly scary and dangerous to throw out the concept of having the State Water Board have a closer look at what is an essential part of not only your day to day business activities but culturally important legacies of farming and ranching California. So that’s an incredibly important piece of it.”
Andrew Tauriainen noted that the Board has not yet used its new information order authority to his knowledge. And there is a requirement that the Board demonstrate that the need for the information outweighs the cost of gathering and providing that information. “A key part of working with our clients to issue these kinds of orders is to make sure that they’re getting the right information that we do need. There is a dearth of information regarding water use and water availability, so to fill in some of that, in particular cases, particular watersheds, particular programs, and matters, it is a tool that will be valuable when we do start using it.”
Water data and the efforts to improve it
Rebecca Smith acknowledged the significant efforts to modernize water data in California, thanks in part to legislative efforts and the efforts to have open data. Sometimes, there are issues when one dataset just doesn’t talk to the other, which can be a problem. So, increasing the consistency and access of that data is important.
There are financial restrictions and limitations in processing and making data available. There are still areas of the state where it is difficult to get a water meter on a diversion, and that water meter may not be internet-enabled. “We’re getting there,” she said. “We’re not at a place where, by magic, we have telemetry at every diversion point.”
Another challenge is how climate change affects how water availability is calculated. “We know that we have a more volatile climate; we know that we have greater and greater restrictions when we need water, and there’s less available,” continued Ms. Smith. “ But, for example, on the Cosumnes River … In most summers, the river goes dry halfway through the year. In January of 2023, 65,000 CFS were coming down that river, blowing out levees and roads and, ultimately, causing loss of life. So we’re still having a hard time predicting that kind of volatility, and we’re not predicting it very well. And so we need science and studies on that as well to be able to inform our decision-making over the coming years.”
Redgie Collins agreed but noted that Colorado can track water better than California. “There are ways to put units on each diversion; that is a requirement under SB 88. And we need to do better as a state enforcing the existing laws requiring those diversion amounts. It isn’t rocket science; an enormous amount of money comes from water use in California, and a portion of that needs to go to accurate, clear descriptions of water use. So, data modernization is important. … people need to look at the existing laws that require those diversions to be counted. … It’s just a lack of folks to help enforce those. So we need to increase that enforcement authority and the money that goes to those departments and positions to get closer to the data modernization that will affect this process.”
Andrew Tauriainen said the Division of Water Rights is trying to implement SB-88, and other programs are working to digitize their information regarding water diversion and availability. And while reports are now required every year and earlier in the year, it’s still nothing close to real-time. Similarly, there’s a lack of gauges on streams and other ways to understand how much water is in each stream.
“There’s a lot of modeling being done,” Mr. Tauriainen said. “There is a model to determine the unavailability of water in the Delta watershed. It’s not been through OAL, and it’s not, to my knowledge, been tested in the enforcement context. But I want to say that because of the way the data works, the toolbox and the available data that we have, and my own past experiences, you should not be testing a water availability methodology with the data we have within the context of an enforcement proceeding. That is something, in my opinion, that should be done in a policy context or regulatory context. And then the enforcement should come after that’s been tested better.”
Rebecca Smith said a challenge with data is having an appropriate timeframe for the Board and other players on the system to know. “Because your irrigators and diverters are making cropping plans. Municipal suppliers are right now talking about what their water transfers are going to look like for the summer. We can’t control the weather, but when there’s a sudden change, it presents really big problems for those folks that echo throughout other water users, the economy, our cities, and farms. So having clarity about how the rules are going to be set when it’s not a drought when we’re not at each other’s throats, and we’re not involved in enforcement proceedings would go a long way towards making things move more smoothly when we’re all under pressure.”
Is the State Board the appropriate institution to address water right issues? What about the courts?
“I don’t think it’s a fair characterization to say that anybody is saying the State Board needs to get out of the water rights business,” said Rebecca Smith. “That’s not accurate. But the reality is, for a long time, we have had the courts involved in the administration of water rights. We go through state adjudications, but we also go through court adjudications.
“There are some practical reasons and some policy reasons why the State Board does not need to be the only house for water rights administration and enforcement in particular,” continued Ms. Smith. “We do have adjudication mechanisms through the courts. What has become a clear challenge for both users and folks trying to enforce water rights in some state board proceedings is that we don’t have the same clear evidentiary rules and processes. So when you’re going through, for example, a groundwater adjudication, that becomes a big issue.”
Ms. Smith acknowledged the Board has expertise, but with water, it’s a very specific set of facts surrounding the watershed and the water source. “I think there’s relevance here for the courts; we don’t want to take this entirely out of the courts. Because implicitly, when we talk about water use, we start talking about properties. And I think there’s very good reasons to make sure that there’s a recourse in the courts.”
She also noted that things move slowly through the State Water Board, so that’s another reason to have more than one body that can interact with and support the administration of those rights.
Redgie Collins noted that we want to be absolutely sure that the body that acts on a usufructuary right and not a property right can understand the watershed, have an innate understanding of what needs to be done, and has the same evidentiary requirements that a court would … I think you want that exact level of care, understanding, and support for landowners that have a water right. But the system in place that we have now, having to go to the courts, where 95% plus of judges in California will never see a water rights case. That’s the exact situation we have now, where you’re sending these cases to judges who then have to spend a huge amount of time getting up to speed.”
Mr. Collins pointed out there’s a lot of opposition to granting the Board interim relief authority for water rights enforcement. “In important decisions that affect people’s livelihood, you have government code sections that allow agencies to go into care facilities and shut them down right now; you have the ability for health agencies throughout the state to shut down practitioners for not following the law because it’s dangerous. So, if the Board doesn’t have the ability to stop what’s happening quickly, it is injuring not only our mission from Cal Trout but downstream water users who also have water rights. And in the case of the Shasta and Scott, culturally important runs of salmon that are meaningful in a number of different ways and for different people.”
“I don’t think it’s anybody’s position that the State Board needs to butt out of water rights,” said Ms. Smith. “But water use is fundamentally tied up in the weight of protecting property rights. We do have interim relief ability there. We also have enormous relief ability in the court. And we have a much more structured and robust sense of due process on the court. So I’m not saying the State Board needs to butt out, but that the state court can’t be the only venue that houses all of our work on water rights unless we’re prepared to pretty drastically expand the scope and the work of the State Board.”
“Whether things like self-policing work is a tough proposition because it’s easy for everybody in a watershed to get along when there’s lots of water around,” continued Ms. Smith. “It’s a lot harder without really strong carrots and sticks built in to make sure that everybody gets along when there is not. And in particular areas like the Delta, where we’ve got such an unbelievably complicated system with so many waterways coming into it, that can be a really challenging proposition.
“We have seen models on other watersheds and other contexts where a collaborative voluntary approach really works, and maybe it’s a better use of resources,” continued Ms. Smith. “Then we’re able to carry forth and say, these are the parameters we’re working with. We can work through these; we’ve invested a lot of time, energy, and money in these … I think there’s promise when we’re able to facilitate those kinds of conversations and bring all of the players to the table.”
Redgie Collins agreed with the collaboration element. “That’s the vast majority of what our organization does. We have a project on the Scott River. It’s currently the Yurok tribe and Farmers Ditch, which is a collection of landowners in that area. The State Water Board supports these efforts, and CDFW is funding it. It’s moving a point of diversion that was broken … we’re working hand in hand to move that diversion, change that point, and really have these tough conversations in the places where they have to happen.”
He added, “In none of this legislation are we asking for the Colorado system; we’re not asking for a water rights court. Each of these interim relief plans would ideally be run by the State Water Board because they know most about water in California – much more in the court system. That would be backed by the ability then go to court and dispute that claim, like you would in any other process.”
“What we do at the State Board is we balance interests,” said Mr. Tauriainen. “We’re not necessarily more focused on the one or the other. I think that a system without a regulatory entity like the State Board will probably have interests that are less represented. So we do tend to have more effect in certain areas, such as public trust, but one of the top priorities of the water rights side of the water boards is to protect the seniority system, to make sure the seniors get to divert when they have water to divert.”
Lightning round: If you had a magic wand and could grant yourself one wish with respect to water rights enforcement, what would it be?
“My main wish would be what we talked about here about better data, something akin to real-time data, said Andrew Tauriainen. “But from a more legal academic standpoint, I think we should do something to eliminate an artificial distinction between surface water and groundwater and between water rights and water quality. It’s all water; it all goes together. From a hydrologic standpoint, there is very little, if any, difference between groundwater and surface water. And it makes very little sense from a regulatory standpoint, and certainly from an enforcement standpoint, to ignore percolating groundwater because it is such an important resource.
“If I could snap my fingers, it would have real-time perfect data, to have a single source of truth for water rights, for the amount of water instream and the fish going through our system,” said Redgie Collins. “Because I think that would expose a lot of what we could change for the better in a really clear and open way about water rights enforcement.”
“Better stakeholder engagement across multiple disciplines,” said Rebecca Smith. “I think data has already been said, and I agree. But the water community is not a monolith. We are coming up with really interesting and creative solutions for managing our limited supply. But we don’t do that without a lot of good brains in the room. So I think that facilitation is something we need to invest in.”
