Commentary: Data tool emerges as water-rights threat is defeated

By Alexandra Biering 

In the past several years, the equity and effectiveness of California’s water-rights system and the California State Water Resources Control Board’s ability to enforce it have come under scrutiny from activists and environmental interest groups. This scrutiny increased following documented violations of the agency’s water curtailment orders in August 2022.

At the outset of 2023, California lawmakers responded by introducing three water-rights “reform” bills to increase the state water board’s oversight and enforcement authorities in the exercise of any type of water right. Ultimately, only one such bill—Senate Bill 389 by state Sen. Ben Allen, D-Santa Monica—has successfully landed on the desk of Gov. Gavin Newsom.

The other two water-rights bills, Assembly Bill 460 by Assembly Member Rebecca Bauer-Kahan, D-Orinda, and AB 1337 by Assembly Member Buffy Wicks, D-Oakland, failed to gather enough votes to pass this year. The governor has until Oct. 14 to veto SB 389. Otherwise, it will become law.

Current law, under Section 1051 of the California Water Code, authorizes the water board to investigate and collect information about the state’s water resources and the claims people have made to use them. This includes investigating all rivers, stream systems, lakes or other bodies of water and ascertaining whether the waters are already appropriated under state law. It also includes determining all water rights on a stream system if requested to do so by a party that claims rights to use the stream, river, lake or other body.

The law allows state water board staff to do these things, in part, by issuing information orders to request details from water-rights holders. This section of the water code is silent as to whether the water board’s power to ask for information extends to California’s most senior water rights, pre-1914 and riparian rights. The ambiguity no doubt has kept many water rights attorneys employed over the years.

As passed by the Legislature, SB 389 simply clarifies the water board’s powers under California Water Code Section 1051. It says that the agency may collect information about all surface water rights in the state, including pre-1914, riparian and post-1914 licensed or permitted water rights. It also allows the state board to send information orders to water-rights holders at will, rather than only doing so at the request of another water-rights holder. It also clarifies the types of information that can be requested.

However, the bill places a burden of proof on the water board by requiring that the information order explain the need for the information and include supporting evidence. It requires that the order be executed by the board’s executive director instead of staff. These provisions are important to ensure the orders are issued only when truly necessary, rather than capriciously or for political purposes.

Finally, it affirms that the water board can take action against unauthorized water diverters—a power the board already has in California Water Code Section 1052.

Earlier versions of SB 389 included very troubling provisions for California’s farmers, ranchers and other water users. The bill appeared to be squarely focused on giving the water board aggressive new enforcement powers.

The first version of the bill would have added an entirely new section to the water code, titled “Determination of Basis of Right.” That would have given the water board the authority to adopt new regulations to investigate rights. It also would have given the board power to declare water rights “forfeited” with little due process.

The earlier bill would also have put the entire burden of proof on the water-rights holder to demonstrate the validity of that right under the information order. As some senior water rights date to the Gold Rush era or earlier, records of these rights can be difficult to document quickly, all but setting up many people for failure under this provision.

Although California Farm Bureau was initially opposed to SB 389, we and dozens of other water and agricultural groups dropped our opposition after the author negotiated changes to the bill that removed all of these provisions, changed the bill’s focus and substantially reduced the risk to water users.

Whereas SB 389 was once an enforcement tool, it’s now an informational and data-collection tool—albeit one that could still inform enforcement if it uncovers direct evidence of wrongdoing. The information collected under SB 389 will be a complement to the state water board’s recently launched Updating Water Rights Data—or UPWARD—effort.

UPWARD is a $63-million push to digitize a century’s worth of water-rights data and records, make them available to the public, and inform transparent and data-driven water management decisions to help remove the guesswork and politics from the board’s critical task to balance all beneficial water uses. That would be a welcome step.

(Alexandra Biering is a senior policy advocate for the California Farm Bureau. She may be contacted at abiering@cfbf.com.)