Many have argued that California’s water rights laws are sorely in need of modernization. Some feel that the recently passed bill, SB 389, is taking a step in that direction. Two legal experts and PPIC Water Policy Center research network members, Jennifer Harder and Rick Frank, were part of a group convened by the Planning and Conservation League Foundation (PCLF) to make recommendations for improving the water rights system. We asked them to explain the bill’s implications.
Could you explain what SB 389 does?
Jennifer Harder: SB 389 specifies that the State Water Resources Control Board (board, SWB) has express authority to investigate whether a water user has valid water rights and whether they’re using that water in a way that’s consistent with the law. If the board finds that they aren’t, it can take enforcement action.
The board has always had this authority for water permits and licenses issued after December 1914, but it’s been less clear around riparian rights and “pre-1914 appropriative rights,” which predate our water rights permitting system. Many, including me, believe the board has always had the authority to investigate and take enforcement action against riparian and pre-1914 holders. In fact, it’s carried out investigations and enforcement actions for decades. But because the water code didn’t expressly spell out the board’s authority, water users would regularly challenge enforcement actions in court. The board spends a lot of time and money defending against lawsuits focused on its authority, instead of focusing on whether the water user actually violated the law.
SB 389 fixes that problem. It says very clearly that the board can investigate not only post-1914 but also pre-1914 and riparian right holders and take enforcement actions.
Why are these changes important, and how were you involved?
JH: California is an economic and environmental leader across the world, yet we have the most fractured water rights system you could imagine. You would never devise such a system—one in which a state agency has authority over some water rights but not others on the same river system. It doesn’t serve anyone well.
The lack of clarity has caused a lot of delay and cost— costs borne by the people of this state and water users. We hope this clarity will enable the board to exercise its authority more frequently and with more confidence, thereby resulting in a more functional water rights system. SB 389 should improve the state’s information about water rights, too. That’s huge.
Rick Frank: PCLF issued its report in February 2022. Much to our pleasant surprise, a lot of those recommendations quickly got traction in the California Legislature. AB 2108 and SB 1205—embracing two of our group’s recommendations—were enacted in 2022. Our group continued to advocate in the just-concluded 2023 session for additional reforms, including SB 389. And a bill focused largely on groundwater reform, AB 779, was also enacted. Two other bills based on our report’s recommendations passed the Assembly but didn’t make it across the finish line in the Senate: AB 460 by Assemblymember Bauer-Kahan and AB 1337 by Assemblymember Wicks. Both are now two-year bills.
Media interest helped galvanize the public, including excellent reporting by the Sacramento Bee, CalMatters, and the Los Angeles Times. For instance, CalMatters reported on the fact that while California was in severe drought, farmers in Siskiyou County disregarded SWB water curtailment mandates and continued to pump from waterways.
Why aren’t we seeing more comprehensive water rights reform, and what would it take to get there?
RF: In a perfect world, we’d start over and develop a modern, cohesive, and rational water rights system, like many other western states have done. But that’s difficult to do. Some California water users benefit from the current legal gaps and ambiguities, and the legislature—at least until recently—found the topic to be a third rail political issue. Thus, we are left with an incremental approach. We’re encouraged that this issue has now generated some momentum. But the only way we’d see comprehensive, systematic reform is if the Newsom administration convenes, as Jerry Brown did in the mid-70s, a governor-supported advisory process that builds on what PCLF did.
JH: There’s an episode of “Friends” where Rachel makes a trifle that’s half jam and whipped cream and half a shepherd’s pie because the pages of the cookbook got stuck together, and I think that’s where we’ve ended up with our water rights system.
While I wouldn’t have invented this system from the beginning, I’m not a fan of starting over. I’m not sure any alternative would be more workable or equitable—every system has potential for abuse, and the costs of wholesale revision would be staggering. The current system already includes the core principles needed to correct the inequities in our current system, including the constitutional principle of reasonable use, the public trust doctrine, and statutes that support enforcement of public values. We do need some targeted legislative changes to make the system work better for everyone.
I like Rick’s idea of a state-level governor’s commission. A governor’s commission would provide significant energy to move this effort forward, for the benefit of all water users, the environment, and the public.