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July 25, 2023  |  Written by Maximilian C. Bricker

Senate Bill 389: California Legislature Considers Granting State Water Board Increased Authority

California Senate Bill 389 (SB 389) is a legislative effort to increase the State Water Resources Control Board’s (State Water Board) authority over pre-1914 appropriative water rights and riparian water rights. Introduced by Senator Ben Allen (D-Redondo Beach) on February 9, 2023, the bill purports to “provide the State Water Board with more tools to determine whether senior water right claimants who assert riparian or pre-1914 appropriative rights have defensible ground for their diversion and use of water.” The bill is inspired by a February 3, 2022 paper released by the Planning and Conservation League (PCL) entitled “Updating California Water Laws to Address Drought and Climate Change.” Notably, the paper recommends that the State Water Board obtain authority to verify the validity of pre-1914 appropriative rights and riparian rights. The PCL asserts that the bill could enable the State Water Board “to better manage the system for the benefit of all users, and the ecology of California’s many beautiful streams.”

A fundamental tenet in California water law is the distinction between pre- and post-1914 appropriative surface water rights. Historically, the State Water Board has had minimal authority over pre-1914 appropriative rights, as well as riparian rights, so the holders thereof have been largely insulated from State Water Board regulation. A recent appellate court decision confirmed that the State Water Board has limited regulatory authority over such rights. Because the State Water Board derives its authority from statute, the California Legislature is taking action to change that level of authority.

SB 389 as Introduced

As introduced, SB 389 called for the addition of a new article to the Water Code that authorized the State Water Board to: (1) investigate a diversion and use of water from a stream system to determine whether the diversion and use are based upon a valid right; (2) issue an information order to a water user to provide technical reports or other information related to the diversion and use; (3) issue a decision or order that determines the water right, whether limited in scope or wholly invalid; and (4) find forfeiture even without a conflicting claim by another water user. Additionally, the bill would have affirmatively placed the burden of proof on a water user to establish the validity of a claimed water right.

SB 389 as Amended

Unsurprisingly, the introduced bill faced opposition from numerous agricultural and municipal water users alike. Subsequent amendments in the Senate and Assembly have pared back some of the authority initially contemplated—e.g., rather than “determine,” the amended bill authorizes the State Water Board to “investigate and ascertain” the validity of surface water rights, which are terms already included in existing law, specifically Water Code section 1051. Thus, as it stands today, SB 389 authorizes the State Water Board to investigate and ascertain the validity of any surface water right. The amended bill also obligates the State Water Board to only burden a water user as is reasonably needed and explain to the water user the need for the information with supporting evidence. Finally, it provides that any use of water ascertained to be unauthorized is subject to enforcement as a trespass under Water Code section 1052.

Status of SB 389 and Related Bills

SB 389 passed the Senate with amendments, then passed the Assembly Committee on Water, Parks, and Wildlife with additional amendments (collectively described above) and is currently pending before the Assembly Committee on Appropriations. Two other bills that likewise increase the State Water Board’s authority are pending before the Senate Committee on Natural Resources and Water: Assembly Bill 460, authorizing the State Water Board to issue “interim relief” orders to enforce the reasonable use doctrine, water rights, and water quality standards, and Assembly Bill 1337, authorizing the State Water Board to issue curtailment orders for any diversion, even pre-1914 appropriative rights.

How SSD Can Help

If passed, SB 389 will certainly change the regulatory landscape in California water law, should it be signed into law. Accordingly, holders of pre-1914 appropriative rights and riparian rights may become subject to increased scrutiny of their water use in the near future. Somach Simmons & Dunn is prepared to help public agencies and private parties understand the regulatory changes if/when they are implemented and advise clients on their best course of action.

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