Natalie Willis, Reporter, Valley Ag Voice
Increasing state interest in water rights claims resulted in three proposed bills meant to change the current Water Code, but policy advocates from the California Farm Bureau Federation, as well as other agricultural stakeholders, stalled two bills and amended SB 389 before it was signed into law.
Governor Gavin Newsom signed SB 389 on Oct. 8, granting the State Water Board authority to investigate water rights claims that extend to pre-1914 appropriative rights. Despite initial concerns that this legislation would allow the SWB to investigate water rights claims at will, Senior Policy Advocate for CFBF Alexandra Tollette Biering explained that new amendments neutralized this possibility.
“Originally, the bill had some provisions that gave the water board the authority to determine whether water rights were forfeited and could basically take them away…another had the burden of proof to prove that you had a water right that was valid,” Biering said. “But what we ended up doing was working with them to set certain thresholds and certain requirements that the water board had to meet in order to ask about a water rights claim.”
The amended bill, introduced by Democratic Senator Ben Allen, now confirms that the State Water Resources Control Board can ask for information through an information order, Biering explained. Additional requirements for the SWB include the need to explain why it is requesting that information with attached evidence that has led to the question of the validity of a water rights claim. The board’s executive director must make the official request, Biering added.
In its original text, the bill would have provided the SWB with tools to enforce or revoke a water right at the discretion of the board. The amendments pushed by the Farm Bureau changed it into a tool for the water board to use under certain conditions to further their interest in expanding data information, Biering explained.
“Instead of them just having a blank check to go out, issue information orders — request information about your water rights whenever they can, whenever they want to for any reason at all, with no explanation — and then follow it up with an enforcement action, this is really focused on information gathering,” Biering said. “They have to prove that there’s a really valid reason that they need to do it.”
According to Biering, SB 389 is less of a threat to agricultural water rights holders now that the nature of the bill has changed from enforcement through an altered water code to a bill that clarifies its existing power to collect information.
“At the end of the day, we’re moving into an era where more information is going to be requested…in the absence of good information, it’s really hard to make truly impartial data-driven management decisions,” Biering said. “Instead, you end up making decisions that are based on partially complete information or political pressures or things like that. And those are not the sort of decisions we want made — we would rather have transparent, understandable, impartial, data-driven decisions made with good information than the alternative.”
The two water bills that were stalled, however, have larger implications for Central Valley farmers. Assembly Bill 1337, introduced by Democratic Assemblymember Buffy Wicks, would give the water board the authority to curtail pre-1914 water rights outside of a drought emergency.
In an opinion piece for the Orange County Register, Justin Caporusso, executive director of the Mountain Counties Water Resources Association, explained that the bill subjects water users “to the whims of the state.”
The second stalled bill, Assembly Bill 460, introduced by Democratic Assemblymember Rebecca Bauer-Kahan, would grant the water board the ability to intervene in water diversions without due process as well as increasing fines.
“Increasing fines by such crippling amounts that only those with the deepest pockets would be willing to take the risk to divert water legally, thereby killing family farming,” Caporusso wrote.
According to Biering, these bills would increase penalties for diverting water in violation of a board order and could ultimately curtail all existing water rights.
“Those two other bills would also give the water board more power to issue curtailment orders over every watershed as well as to stop people from diverting for an entire irrigation season,” Biering said. “Those are the things that I think are probably more worth focusing on going forward and making sure that some of the more harmful aspects of those bills don’t get signed into law.
While both bills are not currently moving forward, they are not fully dead and have turned into two-year bills. Biering explained that the decision to either push harder for the bills or drop them will be determined in January 2024.