The Crush June 2023 - 4

STATE FOCUS
MODERNIZING WATER RIGHTS
by Michael Miiller
Three bills are currently moving through the legislature
that could fundamentally, and forever change, water
rights in California. These bills are intended to expand
the authority of the State Water Resources Control Board
to oversee and enforce water rights. This effort is often
described as " modernizing water rights. "
The bills in question would eliminate due process. Instead,
these bills would give the State Water Board full authority
to allege a violation, investigate that allegation, and then
decide the outcome.
In all three bills, the burden of proof is on the water rights
holder. This would make the State Water Board the judge,
jury, and executioner.
SB 389 (Allen, D-Santa Monica) would authorize the
State Water Board to investigate the validity and scope of
any water right holder without demonstrating a reason for
initiating an investigation. Below are some details on this
legislation:
* SB 389 would undermine reliability in water
rights by authorizing the State Water Board to
strip water rights holders of their rights with no
probable cause and little due process. Once the
State Water Board begins adjudicating a claim,
the only opportunity for the water rights holder to
participate in the investigation is " after notice and
opportunity for a hearing. " Ultimately, the final
decision on the validity or scope of the water right
would not be made by a neutral arbitrator, but the
State Water Board staff.
* The State Water Board already has the authority
to investigate the validity and scope of any
water right. However, existing law requires the
State Water Board to use a robust administrative
process that provides constitutionally guaranteed
due process protections. Unfortunately, SB 389
provides none of the safeguards that existing law
recognizes as essential to making informed and
defensible decisions on the validity and scope of
water rights.
AB 460 (Bauer-Kahan, D-Orinda) would provide broad
statutory authority to the State Water Board to issue
interim relief orders (enforcement orders) to enforce
a variety of water laws and policies. AB 460 would
essentially use enforcement orders to effectively eliminate
water rights by doing the following:
* Grant expansive and unprecedented authority
to the State Water Board to issue immediate
enforcement orders beyond illegal diversions or
Page 4 | June 2023
violations of curtailment orders. Remember, the
State Water Board already has the authority to
respond swiftly to violations of law, such as illegal
diversions.
* Give the Water Board expansive authority to cut
off access to water without prior notice, based
on vague value statements and staff-assessed
balancing tests. This measure would penalize the
use of recycled water.
* Would short-circuit judicial review by eliminating
de novo review by a superior court.
AB 1337 (Wicks, D-Oakland) would expand the authority
of the State Water Board to restrict water diversions
through curtailments of any claim of water rights even
when there is no drought and water is plentiful. AB 1337
would essentially use curtailments to effectively eliminate
water rights by doing the following:
* Provide broad authority for the State Water
Board staff to cut off access to water under
undefined and undetermined standards, resulting
in curtailments of an indeterminate duration.
This could be a semi-permanent reduction on all
classes of water rights, without using the proper
process to fully protect water rights claimants.
* Make curtailment (which should be a measure
of last resort) an everyday water management
tool, when local solutions including voluntary
management agreements are more effective at
managing water.
* Empower the State Water Board to initiate an
adjudication on its own motion without providing
a real basis for its decision to investigate a water
right.
There may be a legitimate basis for a deep-dive
examination of whether California's water rights
system currently operates effectively, as part of
a comprehensive realignment of water resource
management to meet the challenges of weather
extremes. This would involve the collection of data and
enforcement of existing laws. However, these bills go so
much further.
CAWG is opposed to all three bills
and is part of a broad coalition
of agriculture, water agencies,
business, housing, and more in
opposition. Defeating these bills,
or substantially amending them to
address the above concerns, is a top
priority.
https://mavensnotebook.com/2023/03/23/planning-conservation-league-updating-california-water-laws-in-the-face-of-droughts-and-climate-change-2/ https://mavensnotebook.com/2023/03/23/planning-conservation-league-updating-california-water-laws-in-the-face-of-droughts-and-climate-change-2/ https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202320240AB1337 https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202320240SB389 https://norcalwater.org/2023/03/21/observations-on-a-modern-water-rights-system-in-the-sacramento-valley/ https://norcalwater.org/2023/03/21/observations-on-a-modern-water-rights-system-in-the-sacramento-valley/ https://norcalwater.org/2023/03/21/observations-on-a-modern-water-rights-system-in-the-sacramento-valley/ https://norcalwater.org/2023/03/21/observations-on-a-modern-water-rights-system-in-the-sacramento-valley/ https://norcalwater.org/2023/03/21/observations-on-a-modern-water-rights-system-in-the-sacramento-valley/ https://norcalwater.org/2023/03/21/observations-on-a-modern-water-rights-system-in-the-sacramento-valley/ https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202320240AB460

The Crush June 2023

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The Crush June 2023 - 1
The Crush June 2023 - 2
The Crush June 2023 - 3
The Crush June 2023 - 4
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