California’s system for governing water rights has come under greater scrutiny in Sacramento as the extreme drought escalates the competition for an increasingly scarce resource. The California Farm Bureau has fended off two bills and an executive order from Gov. Gavin Newsom on the issue and is expecting more of the same for 2023.
“We're in the business of farming in a water-limited state,” said Chris Scheuring, farm bureau senior counsel, during the organization’s annual meeting last week. “We are dealing with a water rights system that is certainly under attack from a lot of different angles.”
Agriculture is also dealing with aging infrastructure and a regulatory environment that constrains water use, delivery and disposal, added Scheuring.
Throughout the drought, the farm bureau has maintained that the water rights system—prioritizing those who were first in line to purchase rights—is designed for times of scarcity. The advocacy group is urging agencies like the State Water Resources Control Board to create space for the system to work, rather than enact emergency regulations to reshuffle water priorities.
Yet the impacts of an unprecedented drought to cities and disadvantaged communities and the uncertainty posed by climate change have continued to drive calls to overhaul the system.
“Those people who say that are, in my opinion, either ignorant or they're intentionally manipulating that to try to change water rights,” said Danny Merkley, who leads policy engagement on water resources for the farm bureau. “Whether you have money in the bank or you have a water right, somebody else is always trying to take it away from you. It’s those who don’t have it who want it.”
The Planning and Conservation League, a Sacramento-based environmental group, has assembled a handful of lawyers, law professors and a former state water board member opposed to voluntary agreements to develop a set of recommendations for updating water rights to address climate change.
“This is not a ‘blow-up-the-water-rights-boxes’ approach,” they wrote in a February report listing 11 policy recommendations. “It is a focused approach to updating existing laws, regulations and funding.”
Merkley criticized the report, arguing “none of [the authors] have ever held a job in what we call the real world.” He echoed comments earlier this year from Aaron Fukuda, general manager at the Tulare Irrigation District, who said the authors “have never managed a molecule in their lives.”
One of the report’s recommendations was to accelerate the timeline for implementing the Sustainable Groundwater Management Act (SGMA). Merkley, who was involved in the policy negotiations behind the 2014 legislation, said environmental groups have always pushed for implementing SGMA immediately and reputed the 20-year timeline as delayed action.
Chris Scheuring, California Farm Bureau“One of the things that we pushed very hard for was trying to have enough time to implement SGMA,” explained Merkley, adding that enacting an immediate mandate would have been devastating to agriculture and the state’s economy, while trickling the impacts down to vulnerable communities.
Following a dry winter and a rising number of failing drinking water wells, however, Gov. Gavin Newsom in March issued an executive order that built on that recommendation along with another that called for prioritizing domestic wells in local SGMA plans. Newsom’s order tasked groundwater sustainability agencies with reviewing applications for well permits prior to any county approvals. Asm. Steve Bennett of Ventura sought to permanently codify the temporary order into state law through Assembly Bill 2201. Yet the top-down regulatory approach drew heavy industry opposition, and a policy committee later handicapped the measure with new amendments, leading Bennett to withdraw the bill.
Merkley surmised that Bennett had a firm understanding of water issues in his district. As a Ventura County supervisor, Bennett served on the board of the Fox Canyon Groundwater Management Agency. The county was a pioneer in setting allocation limits for how much a farmer can pump each year, which includes penalties for overpumping, according to Justin Fredrickson, the farm bureau’s environmental policy analyst.
“But we have 515 groundwater basins and subbasins in California,” said Merkley, who argued AB 2201 would have treated all basins the same. “They're all very different from one another.”
With the demise of the bill, farm groups instead collaborated with the Department of Water Resources and community groups to launch last week a voluntary grant program for reducing pumping near at-risk drinking wells.
Yet Merkley was careful to avoid pronouncing the death of measures like AB 2201.
“One of the things I've learned is that if they don't succeed, you'll see that legislation again and again and again,” he said. “They keep trying to beat that dead horse, and every once a while that horse gets up.”
That was the case for AB 2183, a bill sponsored by United Farm Workers that aimed to install a card check system for union elections. Despite three governor vetoes—and Newsom’s pledge to again reject the measure—he signed it into law in September.
Former Asm. Bill Quirk of Hayward led the fight in the Legislature over another recommendation from the Planning and Conservation League. AB 2639 would have required the state water board to approve by 2024 its controversial 2018 update to the Bay-Delta Water Quality Control Plan. Quirk proposed to penalize the board for running past the deadline by prohibiting it from approving any new water rights, particularly for planned water projects like Sites Reservoir in Northern California.
Merkley called the bill “very problematic,” arguing the process to update the plan is complex with “a lot of moving parts” and it would potentially disrupt sensitive negotiations over voluntary agreements for freshwater flows and habitat restoration in the Delta.
While Newsom did not take a position on the bill, the administration has been leading the charge on voluntary agreements. It spearheaded a deal with water contractors in March and has invested millions of dollars into restoration projects to support the goals.
While both water bills failed to move out of the Legislature, Merkley expected to see more action in the coming year on other recommendations from the Planning and Conservation League. The report, for example, calls for updating the water code to allow the state water board to better investigate claims to water rights.
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“Basically that is siccing [on water users] entrenched water board staff—some of which think they know better than anybody else about how water ought to be handled in the state,” said Merkley, who pointed out that he worked at the board for three years before joining the farm bureau and has respect for most of the board staff.
The policy proposal would turn staff into water cops to investigate water rights without having to respond to a complaint, he explained.
“Usually when you end up with water right problems, it's because you ticked off a neighbor,” he added. “They turn you in because they want to take that away from you, because they think you're negatively impacting them.”
Merkley also warned the farm bureau members to get their paperwork in order and be ready to document any senior water rights they hold. Pre-1914 rights, he cautioned, often rest solely on a few papers going back to when someone’s great grandfather established the water right more than a century ago. One of the report’s recommendations would enable the board to more easily convert those water rights instead to benefit fisheries and other environmental uses.
“This would allow the water board to take it away from you if you didn't have all those i's dotted and t's crossed,” he said.
Merkley also raised alarms over the report suggesting the water board establish pilot projects to experiment with real-time monitoring and reporting for stream flows. He countered that wildlife often damage monitoring devices, which tend to be in remote areas that are difficult to access for repairing.
“That's something we've been fighting to rectify for quite some time—not with a lot of success,” he said.
The report also proposes a new mandate on water passing through dams, culverts and waste gates, requiring sufficient flows and temperatures to sustain downstream fish habitats. That would likely pull more water from Shasta Reservoir and other storage projects when supplies are tight.
Many of the farm bureau’s concerns will take center stage in the Legislature next year, as a suite of new lawmakers seek to make a mark in their first year and others revive previous legislative priorities for water.
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