California water rights at risk as three legislative proposals advance

republish CalMattersJune 11, 2023

By Dan Walters

When California imposed its first-ever regulation on the extraction of water from underground aquifers in 2014, it gave environmental groups a landmark victory in their decades-long effort to overhaul water use laws.

It was also a political setback for farmers, who are California’s major water users and have depended on wells to irrigate their crops as increasingly frequent droughts reduce surface water in rivers and reservoirs.

However, while groundwater regulation ended one front in California’s never-ending political and legal battles over allocation of water, it merely set the stage for an even bigger conflict over surface water rights, particularly those pre-dating 1914, when the state first began controlling diversions.

Just months after the groundwater regulation’s enactment, with drought still gripping the state, the water rights battle was joined when the state Water Resources Control Board attempted to curtail diversions by some pre-1914 rights holders.

The board accused a small water system on the southern edge of the Sacramento-San Joaquin Delta, Byron-Bethany Irrigation District, of ignoring its curtailment order and continuing to take water from the Delta for 13 days.

“We are a test case,” Byron-Bethany’s manager, Rick Gilmore, said at the time. “I think this has become a larger issue. I think the water board wants to use this as a precedent so they can start to gain more control over senior water right users.”

An immediate confrontation was averted, but the underlying conflict continued and last year the state court of appeal declared that the board lacked emergency curtailment authority over senior rights holders.

Meanwhile, 2022 saw another clash involving another small water agency that ignored curtailment orders on the Shasta River a few miles south of the Oregon border. The Shasta River Water Association’s farmers and ranchers continued to tap the river and later paid small fines.

The court decision and the Shasta River case fired up a long-standing drive by environmental groups to reduce diversions that damage wildlife habitat, contending that pre-1914 rights reflect exploitive and even racist 19th century attitudes incompatible with climate change and 21st century societal mores.

Water rights reformers have pressed the board to aggressively invoke the “public trust doctrine” of California water law and the state constitution’s declaration that water use must be reasonable.

Despite its clashes over curtailment orders, the water board has been reluctant to engage in a sweeping political and legal war. It did, however, underwrite research by UC Berkeley’s Center for Law, Energy and the Environment on the powers needed to curtail diversions during droughts.

The resulting report, issued in April, declared that “the state needs to implement curtailments on a regular basis, not only in times of extreme crisis. Routine curtailments already happen in other western states. California cannot afford to remain an outlier.”

Not surprisingly, three bills have been introduced in the Legislature to give the water board the authority suggested in the UC Berkeley study, pitting water rights reformers against agricultural and municipal water agencies.

Although advocates contend that the bills would merely give the water board much-needed managerial tools, a coalition of water districts and agricultural groups see them as a prelude to the wholesale abrogation of their water rights. The board could gain the “potential to strip public agencies of water rights that have been used to sustain communities for decades,” with decrees of “arbitrary outcomes,” they wrote in an opposition letter.

All three measures, Assembly Bill 1337Assembly Bill 460 and Senate Bill 389, survived initial floor votes but the political battle is just beginning. Their fate could rest in Gov. Gavin Newsom’s hands as powerful interests clash over a bedrock issue – who prevails when there’s not enough water to meet all demands.

This article was originally published by CalMatters.TAGGED: California LegislatureCommentaryDan Walterswater

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