By Darien Key and Derek Hoffman
The California Legislature recently introduced two bills, Assembly Bill 460 and Senate Bill 389, aimed at modifying administrative processes pertaining to pre-1914 and riparian surface water rights and to align them more closely with water rights established post-1914. These bills introduce two primary changes: (1) creating a parallel administrative system for pre-1914 and riparian rights to challenge them on the basis of water quality, permit terms, or § 5937 of the California Fish and Game Code; and (2) allowing an expedited hearing process to extinguish pre-1914 water rights.
Background
California water law is a complex system developed over more than a century. One aspect of this system is that pre-1914 water rights and riparian water rights are generally considered senior to all other surface water rights and are not subject to the same level of regulation as more recently developed water rights. These bills aim to narrow this gap by regulating pre-1914 water rights and riparian water rights in the ways similar to as newer water rights.
Current Administrative Process for Pre-1914 and Riparian Water Rights
Currently, the administrative process used by the California State Water Resources Control Board (SWRCB) to determine water rights is complex and often contentious. Under existing law, the SWRCB has jurisdiction to regulate all diversions of water, including pre-1914 and riparian rights, under Article X, Section 2 of the California Constitution, the reasonable and beneficial water use standard, and the public trust doctrine. However, post-1914 appropriative water rights are subject to additional regulations, such as complying with the terms of each permit or license, water quality objectives, and § 5937 of the Fish and Game Code.
The SWRCB enforces compliance with these requirements through an administrative hearing process. However pre-1914 and riparian water rights are not conditioned on compliance with water quality objectives, § 5937 of the Fish and Game Code, or permit terms, unlike most other California water rights. This results in SWRCB’s inability to regulate pre-1914 and riparian rights similarly because most enforcement actions are taken under the three aforementioned categories. These bills attempt to chip away at this crucial difference by instituting a similar administrative process for pre-1914 and riparian rights.
AB 460 Ability to Challenge Pre-1914 and Riparian Rights Based upon Water Quality Objectives
AB 460 would significantly expand existing opportunities for the SWRCB and interested members of the public to investigate whether a particular water right holder is violating: (1) Section 2 of Article X of the California Constitution; (2) the public trust doctrine; (3) Water quality objectives; (4) the terms of post-1914 water rights permits, licenses, certificates, and registrations; or (5) § 5937 of the Fish and Game Code.
AB 460 would significantly expedite the timeframe and simplify the process for SWRCB to bring enforcement actions against pre-1914 and riparian rights for perceived violations of water quality objectives, the terms of post-1914 water rights permits, licenses, certificates, and registrations, or § 5937 of the Fish and Game Code. SWRCB’s current authority for such enforcement measures requires lengthy enforcement processes or even lengthier regulations processes.
Via expedited hearings, AB 460 would enable the SWRCB to issue relief orders where the SWRCB could demand that the diverter “cease all harmful practices,” mitigate harm, fund technical and environmental studies, and reimburse the SWRCB for the cost of preparing any required documentation.
This legislation would provide the SWRCB with authority to issue a curtailment order to an individual diverter and require that the diverter fund studies and other mitigation or face penalties. This is a marked difference from the current authority where the SWRCB must develop regulations or initiate enforcement proceedings in order to regulate diversions. The significant costs associated with participating in a hearing process on short notice and complying with an interim relief order may cause many right holders to first consider settling claims outside the hearing process.
SB 389 Expedited Process to Extinguish Pre-1914 and Riparian Right Claims
SB 389 creates authority for SWRCB to investigate the basis for any water rights. Additionally, it requires that a diverter provide information or technical reports regarding the characteristics of its water right before a hearing is held regarding the validity of the water right.
This is a marked difference from existing law. Currently, a riparian or pre-1914 right holder must file initial statement of diversion and use and supplemental annual statements generally describing the characteristics of their riparian or pre-1914 right.
Under SB 389, the SWRCB could require hearings requiring any diverter to prove the elements of their claimed water right. This requirement creates a potentially significant hurdle because this showing is factually intensive and often requires extensive historical research. Failure to demonstrate this historical right could result in an order depriving the owner of its claimed water right or orders for curtailment.
Conclusion and Implications
The proposed Bills would provide powerful new tools and oversight authority to the SWRCB. The Bills would further the goal of many lawmakers to have all water rights regulated in the same fashion. That goal, however, will draw objections and concerns from many riparian and pre‑1914 water right holders that have exercised, relied upon and carefully preserved their rights—in some cases for many generations.
