The nearly full Briones Reservoir in Orinda, California, on February 12, 2024. The reservoir is currently at 97% capacity.
Legal rights to use water – particularly those obtained before 1914 – are at the center of California’s perpetual dispute over the allocation of increasingly limited water supplies.
For years, state officials have tried, with limited success, to reduce farmers’ diversions, increase river flows and restore declining numbers of fish, particularly salmon, and other wildlife.
The conflict occurs even during periods when the state receives abundant rain and snow and its reservoirs are full. But it becomes more intense during the state’s periodic droughts, as illustrated by what happened in 2014 when then-Gov. Jerry Brown, citing “one of the driest years in state history,” proclaimed a state of emergency.
The state Water Resources Control Board began notifying agricultural water agencies that they must reduce diversions from the Sacramento and San Joaquin river basins (essentially the entire Central Valley) after having “determined that the water supply existing…is insufficient to meet the needs of all water rights.” Headlines”.
The state clearly had the authority to limit agency diversions, with rights granted after the state assumed administrative control of California’s water in 1914 (ironically, exactly a century earlier). However, those with pre-1914 rights objected, arguing that under state law the board could not order them to reduce deviations.
Political and legal disputes followed and the issue ended up in court, with an appeals court ruling in 2022 that the water board had no legal authority to order pre-1914 rights holders to reduce diversions.
Although the case focused on the board’s drought-induced restraining orders, everyone involved knew the outcome could affect the broader issue of water rights and the overall allocation of water supplies.
Environmental groups that had been pushing the board to be more assertive on water rights were disappointed. “A recent decision by California’s Sixth District Court of Appeal highlights everything that is wrong with California water law,” two officials from Cal Trout, one of the environmental groups, wrote in CalMatters, adding that “the decision protects to a class of property owners whose rights were enshrined in law at a time when the rights of citizenship, land ownership and common decency were granted only to a privileged few.”
Agricultural interests, of course, were pleased with the decision, as they argued with the water board over the broader question of how much water should remain in rivers to support wildlife.
Environmental groups have urged the board to issue new water quality standards for the Sacramento-San Joaquin Delta that would indirectly reduce agricultural diversions. Jerry Brown and his successor, Gavin Newsom, have urged the adoption of “voluntary agreements” on diversions without a legal showdown over water rights, but that effort has yet to succeed.
Legislation was introduced last year to strengthen the water board’s curtailment authority, implementing a report from the UC Berkeley Center for Law, Energy and the Environment, endorsed by the water board, recommending that “the state needs to implement restrictions on a regular basis, not just in times of extreme crisis.”
The most important, Assembly Bill 1337, would have given the water board direct authority to order reductions for pre-1914 rights holders. However, it remained in limbo for more than a year until its author , Assemblywoman Buffy Wicks, D-Oakland, finally dropped out this month.
The only survivor is AB 460, by Assemblywoman Rebecca Bauer-Kahan, D-San Ramon, which would increase fines for illegal water diversions and has a multiparty agreement.
The drought orders, the appeals court decision and the lack of action by the Legislature this year indicate that California’s water rights remain a bone of legal and political contention as the broader fight over water allocation continues. water.
Dan Walters is a CalMatters columnist.
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