Earlier this summer, I wrote about three bills poised to make long-overdue changes to California’s antiquated and unfair water rights system. Whether you call it updating, modernizing, or reforming, changes to the water rights system have long been considered a political third rail—the kind of power you can’t touch. .
This year, one of the water rights bills, Senate Bill 389 (SB 389) made it through the legislature’s challenge and will become law if Governor Newsom signs it. The bill would give the State Water Resources Control Board (the Water Board) the authority to verify pre-1914 appropriative and riparian water rights. It passed by a clear majority–58-17 votes in the Assembly and 30-8 in the Senate–and most of the opposition was withdrawn. UCS joined a broad group of organizations in submitting a letter to Governor Newsom urging him to sign the bill.
Senate Bill 389 allows the Water Board to investigate all water rights
As I wrote earlier this year, the Water Board decides how much water is taken from the rivers and who can use it. The most senior water rights holders, namely the holders of pre-1914 appropriative and riparian water rights, do not have to play by the same rules as everyone else. Many senior water rights holders obtained these rights before tribes, people of color, women, and many others had any land and water rights.
SB 389 gives the Water Board significant authority to review, verify, and issue decisions on senior water rights claimed before the Water Commission Act of 1913. If Newsom signs SB 389, the Water Board ultimately has the ability to investigate and determine the validity of senior riparian and appropriative rights. This means that they can confirm if a claimed right is inflated or not and if a user can deviate and take more than they need.
With SB 389, the Water Board will be able to actively manage everyone under the same rules. There is no longer a need to rely on information self-reported by “senior” water rights holders to make management decisions. This is especially important during drought years in California, when the Board may ask water rights holders to reduce or limit their water use to ensure a minimum flow in a watershed of support ecosystem health, water quality, species survival, tribal practices, and other needs. .
Other western states are decades ahead of California
Oregon joined the Union in 1859, and 50 years later in 1909 enacted its water code. As in California, property owners may hold “vested” water rights prior to the adoption of the water code. In 1987, however, Oregon passed a law that gave anyone with a pre-1909 claim to water rights 5 to 7 years to register their claim with the Oregon Water Resources Department. . Failure to file creates a rebuttable presumption that there is no legal claim (read more). Over the past 30 years, Oregon has been able to make surface water management decisions with better information about all of its water users than California.
Washington state joined the Union in 1889, and in 1917, nearly 30 years later, enacted its water code. Notably, the 1967 Water Right Claims Act directed the state’s Water Resource Department “to record the amount and location of pre-code water rights and excluding groundwater use, by authorizing the state to accept and registration of water right claims” (read more). Failure to register is a complete waiver and surrender of any water rights. Over the past 50-plus years, Washington has been able to make more informed surface water management decisions than California.
In 2017, Nevada passed a bill that effectively gave water rights claimants 10 years to submit proof of their claim to the state or forfeit them:
- “Section 1 of this bill requires any person claiming a pre-statutory water right to submit proof of claim to the State Engineer on or before December 31, 2027, regardless of whether an adjudication is ordered for a water source. If a claimant fails to submit such proof, the claim is considered abandoned.
It is past time for California to catch up with its neighbors.
Newsom should sign SB 389 without hesitation
Modernizing water rights means adapting a 19th century system, inherently unfair by design, into the 21stSt needs of the century. California was one of the last states in the west to do this and arguably, it did it with the weakest tool. There is no deadline by which water rights holders must do this or relinquish their claim as other states have included.
Senior, pre-1914 water rights represent 45% of surface water rights holders and 35% of surface water changes by volume; it has not been adequately documented and remains poorly understood. As climate change exacerbates the volatility and unpredictability of California’s water system, understanding the full set of users and their demands is more important than ever for climate-resilient management. . SB 389 provides a small, but important, step toward a more transparent and fair water rights system.
Fortunately for us, Senator Ben Allen and his co-authors of SB 389, Assembly members Bauer-Kahan and Wicks, are working to slowly improve California’s water rights system and catch up with our neighbors to the west . Check out the Planning and Conservation League’s resource page to learn more about the three water rights bills and ongoing efforts to maintain a fair, balanced, equitable, and timely tool. which is set for the state.