On May 30, 2017, a sizeable majority of the California State Assembly passed Assembly Bill 313 (AB 313) to establish a new Water Rights Division that will take over some of the State Water Resources Control Board’s current water rights enforcement responsibilities. Citing claims of bias and lack of accountability under the existing administrative structure, AB 313’s author, Assemblyman Adam Gray (D-Merced), argues the reform will improve California’s water governance and add needed checks and balances to protect water users.
Since the late 1960s, the State Water Resources Control Board (SWRCB) has exercised broad authority in allocating and managing California’s water. Among its numerous responsibilities, the SWRCB grants appropriative rights, promulgates regulations, enforces permit conditions and curtailments, and holds quasi-judicial hearings to ensure that water resources are put to reasonable and beneficial use. In the event of unauthorized diversions, administrative civil liability (ACL) complaints and cease and desist orders (CDOs) may be brought by SWRCB staff and decided by empaneled SWRCB members.
Concerns with the SWRCB’s ability to impartially oversee enforcement actions flared during California’s recent drought, in which prolonged water shortages prompted a water availability investigation and ACL complaint against Byron Bethany Irrigation District (BBID). The SWRCB claimed over $1.5 million in fines against BBID in the summer of 2015, arguing the district exceeded its pre-1914 appropriative rights by taking water that was needed by more senior users. Another diverter, West Side Irrigation District (WSID), received a draft CDO for unauthorized diversion allegations and subsequently joined in the portion of BBID’s hearing relating to water availability.
At the hearing, however, the hearing officers found that the SWRCB staff prosecution team failed to present sufficient evidence from its investigations as to how much water was actually available in the Sacramento and San Joaquin River watersheds. Before BBID and WSID presented their own cases, the hearing officers closed the evidentiary record and suspended the hearing. The SWRCB eventually dropped the charges and potential fines, but the hearing left some questioning the propriety of an enforcement system in which one entity essentially acts as investigator, prosecutor, judge, and jury.
With technical support and backing by BBID, Assemblyman Gray introduced AB 313 in February of this year to overhaul California’s water management system and address what he perceives as the SWRCB’s “inherent biases and conflicts of interest.” AB 313 was inspired in part by an independent oversight committee’s 2010 report titled “Managing for Change: Modernizing California’s Water Governance,” which advocated separating the SWRCB’s water use planning and management responsibilities from its enforcement and water rights administration powers.
AB 313 proposes to limit the State Water Resources Control Board’s structural powers in a way that has never been done since it was established, nearly 60 years ago. Advocates of the bill argue the change is needed to improve transparency, oversight, and accountability. Opponents claim it will exacerbate inefficiencies by adding another layer of bureaucracy. ACL complaints and CDOs would be heard by different agencies under AB 313, which could potentially duplicate enforcement staff efforts and result in inconsistent findings of fact. Proponents are encouraged by the bill’s broad support in the Assembly, though they can expect further revisions in the Senate before it reaches Governor Brown’s desk.
The full text and legislative history of Assembly Bill 313 can be found at: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB313.
(Austin C. Cho, Meredith Nikkel)
