After strong opposition from the California Chamber of Commerce and a broad coalition of public and private water agencies and users, legislative committees earlier this month doused two major bills that would have undermined more than a century of water rights protections in California and given state regulators broad and unaccountable powers to modify and reduce water rights. A third measure was productively negotiated and improved.
AB 460 (Bauer-Kahan; D-Orinda) and AB 1337 (Wicks; D-Oakland) were held by the Senate Natural Resources and Wildlife Committee after the authors determined the bills would have insufficient support to continue.
AB 460 would have granted expansive new authority for the State Water Resources Control Board to issue immediate orders to apply or enforce far-reaching doctrines and statutes, including the fact-specific constitutional Reasonable Use Doctrine.
These doctrines currently allow the modification of existing water rights only under robust evidentiary proceedings that fully consider circumstances. The bill instead would have granted to the Board greater authority to vitiate these rights at a moment’s notice, reduced due process for water rights holders before the Board, and weakened judicial review of Board actions.
AB 1337 would have greatly expanded the Water Board’s ability to curtail the diversion or use of water under any claim of right during any water year, even in the absence of any drought emergency (when this tool is actually necessary and when its impacts are managed carefully).
The bill would have authorized curtailments even during very wet years, and with few guard rails to mitigate against the major economic and agricultural disruptions that naturally flow from curtailments.
Senators on the committee variously indicated that the bills either went too far, or in any case that the solutions offered were disproportionate to the stated problems.
Negotiations
After productive negotiations with the author of SB 389 (Allen; D-Santa Monica), spanning much of this year and resulting in amendments significantly improving the measure, the CalChamber will remove its opposition to the bill.
As introduced, SB 389 would have undermined the reliability of water rights by changing the burden of proof for rights holders and by making it easier for the Board to decide that water rights have been lost, or “forfeited,” with little due process protections for water rights holders.
Amendments negotiated with the author restored the water rights holders’ due process rights and provided narrow and specific authority for the Board to obtain information from rights holders, including requiring justification by the Board for the information requests.
Due Process Rights Preserved
These bills were hard fought, and their proponents tried to leverage lingering concern about the recent drought to increase the regulatory powers of the State Water Board.
The Legislature generally agreed with opponents that the bills were an overreach, and that the existing approach taken by the Water Board provides the necessary due process for rights holders and appropriately accommodates concerns that balance the needs for human consumption, economic growth, agricultural viability and habitat protection.
