California’s water rights system is coming under increasing scrutiny, and more frequent droughts are putting pressure on the Legislature to increase state oversight. Recently introduced legislation would create new administrative enforcement processes that allow the State Water Resources Control Board (State Board) to make binding determinations on water rights, including riparian and pre-1914 rights. Below are four new bills that could reform California’s water rights system.

AB 460 (Bauer Kahan):

This bill would allow the State Board to issue an interim relief order with at least 20-days’ notice while it investigates existing uses of water either on an interested party’s request or on the State Board’s own motion. If the matter is deemed “urgent,” the State Board may issue an interim relief order with less than 20-days’ notice. Under certain conditions, an interim relief order may be exempt from review under the California Environmental Quality Act. The relief order may enforce 1) Section 2 of Article X of the California Constitution (the reasonable use doctrine); 2) the public trust doctrine; 3) Fish and Game Code section 5937’s requirements to keep fish in good condition; 4) water quality objectives; and 5) the terms of water right permits, licenses, registrations, or certificates. And upon issuing an interim relief order, the State Board may require a water diverter to: cease all harmful practices; reimburse the board for any environmental documentation; employ specific procedures and operations to prevent or mitigate the harm; and take other actions as required. An interim relief order will remain in effect for 180 days, and the State Board may consider permanent relief if it orders interim relief.

The bill would provide that a person violating any interim relief order would be liable to the State Board for a civil penalty not to exceed $10,000 for each day in which a violation occurs and $5,000 for each acre-foot of water diverted in violation of the interim relief order.

SB 389 (Allan):

If enacted, SB 389 would provide the State Board with a new powerful tool for investigating water rights without the years-long (potentially decades-long) process of an adjudication. Under the proposed bill, the State Board could require, after a noticed hearing, any diverter to prove the elements of their water right by a preponderance of the evidence. Required information may include 1) any patent date claimed for the place of use, 2) the notice date of the appropriation and the date of actual delivery of water to beneficial use, and 3) information on water diverted to storage or transferred. For senior riparian and pre-1914 water rights, historical information responsive to these information orders may be difficult for some to provide.

After notice and the opportunity for hearing, the State Board may issue an order determining the basis, scope, and relative priority of the right or that the diversion is not authorized under any basis of right. The bill would then allow the State Board to extinguish any claimed right, including riparian and pre-1914 water rights, seen as the most valuable water rights in California due to their relative priority and limited State Board oversight. The State Board may also find that the water right holder has forfeited their right even without the existence of a conflicting claim, thereby altering the “resumption of use” doctrine acknowledged in case law like Millview County Water District v. State Water Resources Control Board (2014) 229 Cal.App.4th 879.

AB 676 (Bennett):

This bill would declare that the highest use of water is for “health and safety purposes,” replacing Water Code section 106’s policy statement prioritizing “domestic” use. This seemingly innocuous change would substantially narrow the highest use, which is more broadly defined under domestic use to include water in homes, resorts, motels, organization camps, camp grounds, and incidental watering of domestic stock, lawns, ornamental shrubbery, and gardens. (23 CCR § 660.)

AB 1337 (Wicks):

If enacted, AB 1337 would authorize the State Board to adopt regulations for various water conservation purposes through orders curtailing the diversion or use of water under any claim of right, including riparian and pre-1914 rights. The regulations may be adopted to 1) prevent the waste or unreasonable use of water, 2) promote water recycling or water conservation, or 3) protect public trust resources. The State Board shall provide notice and an opportunity to be heard unless that opportunity would be impractical given the likelihood of the harm. Any person violating any regulation may be liable for a civil penalty in an amount not to exceed $1,000 for each day in which a violation occurs and $2,500 for each acre-foot of water diverted or used in violation of the regulation.

Takeaway

Collectively, these bills would significantly expand the scope of the State Board’s jurisdiction and alter long-established burdens of proof concerning riparian and pre-1914 water rights. They also would introduce significant new penalties for violations. We continue to follow these bills, along with other proposed water legislation, and will provide updates to changes to the legislation.

If you have any questions or concerns about how these actions affect you, please contact Nathan Metcalf, Mina Turan, or the Hanson Bridgett Water Law Group.