Senior water rights holders have arguably the sweetest deal in California water. They often have ironclad deals and some even get access to substantial water during the worst of drought.
But three new bills in the state legislature are taking aim at senior water rights in an attempt to level the playing field.
The bills propose expanding the authority of the state Water Resources Control Board.
Senior water rights date back to before 1914, when there was no permitting or state water authority yet.
For years, advocacy groups have decried the water rights system and demanded changes. Some of those changes could become reality if legislators and the governor approve the current bills.
- AB 460 (Bauer-Kahan): Would streamline the Water Board’s power to halt illegal diversions of water and would raise the penalties from $500 per day to up to $10,000 per day and $2,500 per acre foot diverted. The bill passed the state Assembly on May 30 and is on its way to the state Senate.
- AB 1337 (Wicks): Would give the Water Board the ability to curtail any water user regardless of water rights. The bill passed the state Assembly on May 30 and is on its way to the state Senate.
- SB 389 (Allen): Would give the Water Board the ability to investigate and confirm pre-1914 senior water rights. The bill passed the state Senate on May 30 and is on its way to the state Assembly.
The bills are necessary to make the water rights system more equitable, said Amanda Fencl, western states senior climate scientist for the nonprofit Union of Concerned Scientists. Union of Concerned Scientists isn’t an official sponsor of the bills but has been a vocal supporter.
“Anybody that got a water right before 1914 probably looked a certain way and was able to own land, was able to vote, was able to do all these things based on the history of the time,” said Fencl. “They’ve now inherited that privilege of having these water rights based on the racist and inequitable system from back then, and you fast forward more than 100 years and that sort of privilege carries forward into the way that they’re able to use water now.”
The new legislation would give the state the authority to regulate all water users equally, she added.
For example, it has been a hotly contested issue whether the state can cut diversions taken by senior water rights holders during times of drought. Senior rights holders won a lawsuit against the state for curtailing their rights during the 2012-2016 drought.
AB 1337 would directly address this issue and enable the board to curtail any water user.
But some growers, water agencies and others in agriculture say these bills go about changing the system in the wrong way. Critics say the bills are overly broad and give too much authority to the Water Board, which is made up of appointees not elected officials.
“The idea of modernizing the system a bit or making some ability to have more enforcement is probably something that most folks can get behind,” said Cannon Michael, president of Bowles Farming Company and a senior water rights holder.
While the intention of the legislation isn’t bad, it’s probably not the right vehicle to get things done in a constructive way, said Michael.
Michael said there has been some resistance to including senior water rights holders in the lawmaking process. He thinks more inclusion would make for a collaborative and cohesive solution.
“How we can undo how California was put together is kind of beyond my ability to figure that out at this point,” said Michael. “Redoing things and kind of blowing systems up is when you put everybody in their corners and you’re just gonna have protracted litigation and then nothing’s gonna get done.”
“Of course they don’t want it to change if the status quo lets them do what they need to do,” said Fencl of the opposing agencies. “This system is not working for everybody but the water in the state is supposed to be for everybody.”
Senator Ben Allen (D-Santa Monica) said when it comes to his bill (SB 389), those with legitimate senior water rights shouldn’t be concerned.
“They have nothing to fear. Rather, this bill, we’re just asking them to do what everyone else is required to do, not just here in the state of California, but all over the country, is to have some basic proof of their right,” said Allen. “As long as they’re able to come up with something credible that meets the smell test, they have nothing to worry about.”
Allen said he’s open to more conversations with the opposition about how to keep the water board in check.
“I certainly don’t want the Water Board running amok,” said Allen. “I want there to be strictures and constraints.”