The Legislature has been advancing a series of measures to overhaul aspects of the state’s century-old water right system. Proponents argue the rules are archaic and inadequate for addressing climate change. Critics charge the bills would instead set California back on climate investments and disrupt progress in ending a decades-long water war.
The most debated legislation is Assembly Bill 460 by Assemblymember Rebecca Bauer-Kahan of Orinda, who has often stood at odds with agriculture and water interests. The measure would increase the enforcement authority for the State Water Resources Control Board, enabling it to order an immediate halt to diversions and fine violators up to $10,000 a day. Bauer-Kahan described AB 460 as a simple clarifying measure, arguing “all it does is say you’ve got to follow the law” and targets “people who want to take water that doesn't belong to them.” Yet she asserted the reforms would draw significant progress in combating climate change.
“Our future is really, really frightening,” said Bauer-Kahan, pointing to research showing the state’s snowpack could disappear within 24 years.
Asm. James Ramos of San Bernardino added that the “modest, common-sense reforms” prevent irreparable harm to tribal communities.
In policy committee hearings, State Water Contractors (SWC) contended the bill would expand the agency’s authority without any checks and balances and allow it to establish new rules for legal diverters. SWC General Manager Jennifer Pierre said that creating such uncertainty over water rights would disrupt investments in climate resilience as well as commitments already in place for a set of voluntary agreements over freshwater flows for the Sacramento-San Joaquin Delta.
During floor debate last week, Asm. Vince Fong of Bakersfield warned the bill would “completely overhaul California’s water rights system” and put an end to family farms. Fong argued the new powers would allow the board to stop legal diversions and deny water users the right to challenge the board’s actions in court. Fellow Republican Asm. Heath Flora of Ripon added that the board would have “absolute authority to be the judge and jury” over senior water rights established before 1914. Minority Leader James Gallagher worried that any interest group could draft a petition to halt a diversion, and he claimed the impacts would extend beyond agriculture to urban water districts. Gallagher also raised alarms over expanding the agency’s authority for issuing curtailments.
“Who makes the decision?” he said. “It's not the elected people of the state. It's an unelected water board that now gets to make that decision with limited information, on a short time period and with very little due process.”
The Assembly passed the measure by a three-vote margin, ordering it to the Senate.
Asm. Vince Fong, R-BakersfieldAnother bill that narrowly passed the Assembly last week was AB 1337. It would enable the water board to curtail pre-1914 water right holders without the governor declaring a drought emergency and without the standard practice of providing due notice ahead of an order. Under AB 1337, the board could levy penalties for each day and for every acre-foot of water diverted.
“The scope of this bill is nothing radical,” said Asm. Buffy Wicks of Oakland during floor debate. “In times of shortage—made increasingly severe because of climate change—all water rights holders would fall under the same rules.”
As with AB 460, water districts argued that such extreme measures would erode any certainty with their investments and hinder their ability to deliver water. They worried about having a state agency, which has insufficient data on water use, step in to manage local water diversions on a regular basis.
“Increasing the frequency with which the state water board manages the system with antiquated tools is not modernization,” said Valerie Kincaid, an attorney representing several districts.
Fong blasted the measure last week, arguing it would enable the board to aggressively curtail legal diversions, even during wet years.
“We don't need to rush and throw our entire water rights system out the window,” he said. “We need to take the time to get it right.”
Asm. Jim Patterson of Fresno, also a Republican, explained that the bill would undo decades of adjudications and other court decisions that have established the current framework of water rights.
“If you take it away, you're going to have really serious legal difficulties,” he said. “And if you think we have an unfair water distribution system, wait until this creates the kind of litigation that you haven't seen before.”
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Wicks responded that “no one is losing their water rights here” and senior right holders will still be the last in line for curtailments. She expected the bill to gain several amendments in the Senate to ease the opposition.
Similar arguments played out on the other side of the Capitol over Senate Bill 389, a measure to investigate water right claims for upstream diversions, particularly for pre-1914 rights. Senator Ben Allen of Santa Monica said this would allow the board to ask diverters for proof of their rights, which would better inform the board’s drought actions.
GOP Sen. Shannon Grove of Bakersfield rose in opposition, alerting her colleagues that SB 389 would undermine due process for water right holders and disrupt the reliability of water purchases. She called it draconian and undemocratic to place the burden of proof on the holders and presume they are guilty until proven innocent.
“I can't support a bill that unreasonably investigates growers and public agencies that need to buy water under consistent and measurable standards,” said Grove.
While several Democrats abstained from voting on the three water reform bills, Sen. Marie Alvarado-Gil of Modesto was one of only two to raise her concerns on the floor. She described SB 389 as enabling a witch hunt by investigating pre-1914 claims, which often exist only in the form of a basic paper notice tacked to a tree long before a state system was in place.
Sen. Anna Caballero, D-Merced“It turns into an avenue that can put lives, families, properties and our economy at risk,” said Alvarado-Gil. “This is an attack on the way of life in our Central Valley. We’re the breadbasket of the world.”
Sen. Anna Caballero of Merced, also a Moderate Democrat, was frustrated that during droughts the responsibility often falls on agriculture for fallowing land.
“It doesn't become the responsibility of the golf courses to stop watering or for our parks to cut back as well,” said Caballero. “The reality of the situation is that the valley has been gray before this year because of the drought. And then you move to other communities and they're green, they're flowering and they're beautiful.”
She called for first identifying new sources of water, such as from recycling and reuse projects and other technological solutions, before fighting over water rights.
Allen dismissed the concerns, responding that his bill “just gives the water board the ability to ask the same questions of the folks from 1913 as they can of the folks from 1915, which is to show some proof of the validity of their right.” He claimed that California is the only state to take a blanket, hands-off approach to a massive portion of water rights and argued his bill pushes back against the status quo to create a fair and equitable system.
In a discussion at the Agri-Pulse Food & Ag Issues Summit West on Monday, Fong pointed out that the lawmakers authoring the three measures represent urban coastal districts and said they have not worked on policies in the water space before.
“These bills are existential threats to our water system in California,” he said. “I don’t sugar coat it. This is a big deal.”
In a subsequent interview, Senate Agriculture Chair Melissa Hurtado of Bakersfield said she’s trying to work with the bill sponsors.
“I want to stress the importance of those bills and making sure that we either get the right amendments in there, or if we can, prevent them from moving forward,” said Hurtado.
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