Water Rights Reform – SB 389 – Advances to the Governor’s Desk

SCROLL DOWN TO TAKE ACTION: Ask the Governor to Sign SB 389

It has been a remarkable year for water reform in California, and PCL, with our allies, have been out in front leading the charge. Building on the momentum of last year’s passage of SB 1205 (to develop and adopt regulations to govern consideration of climate change effects in water availability analyses), a movement coalesced for water law reform. This movement aims to shift policy in a direction that advances the needs of people and the environment while helping us adapt to the impacts of climate change. Mobilizing around a trio of bills (SB 389, AB 460, and AB 1337), over 70 groups, including California tribes, environmental justice organizations, commercial fishing and sport fishing groups, and a wide range of conservation advocates, joined in support of one or more of the measures – 16 groups supported the full legislative package as of this writing.  PCL and our allies are advancing reforms that matter. This work will help us all adapt and thrive, especially SB 389, which passed the legislature and now awaits action by the Governor.

SB 389: Investigation of Water Right by Senator Ben Allen seeks to obtain a more accurate evaluation of water usage in a given system. To do so, SB 389 grants the State Water Resources Control Board (SWRCB) the authority to review, verify, and issue decisions on senior water rights claims exempted under the Water Commission Act of 1913, namely riparian and pre-1914 appropriative water rights.

The Problem

Water, just like air, is a public resource – essential to each and every one of us every day of our lives. We changed how we manage our air starting in the 1960s, and we have all benefited in the decades since. In the face of climate change, PCL and our allies are sponsoring groundbreaking legislation to adapt how we manage our water for the benefit of all.

The fact is, California has nineteenth-century rules and tools to address twenty-first-century challenges with the management of our water. Additionally, those inherited rules and tools are at best, inequitable and, at worst, deprive hundreds of thousands of Californians access to safe, reliable, and affordable drinking water. We are already facing the ever-growing impacts of climate change, with summers getting hotter, average rain and snowfall levels decreasing, and our water reserves shrinking.

Understanding and managing water flows, quality, diversions, beneficial uses, and discharges is essential given California’s limited and potentially dwindling water supply under the challenges of climate change and prolonged droughts.

Today, California lacks the fundamental ability to truly assess how much water is available and how much is used across all diverters. Water managers, planners, and regulators in the state lack the tools to address critical shortages, which endangers downstream users and the environment. This combined lack of knowledge and essential tools leads to uncertainty for all – unknown and unregulated use by just one diverter can devastate ecosystems and other senior water users dependent on downstream diversions.

The Reforms

SB 389 above and two additional PCL-sponsored bills focus on a fair, balanced, equitable, and timely tool set for the SWRCB and water rights holders. With these new tools, California will be able to more quickly address critical shortages in coming droughts and work towards ensuring even the most senior water users provide critical information on historical and current use.

Interim Relief – AB 460 by Assemblymember Rebecca Bauer-Kahan & Assemblymember Laura Friedman. AB 460 gives the SWRCB clear authority to temporarily limit water diversions from all right holders in times of shortage when harm is occurring, both during drought emergency and non-drought emergency years – and increases fines for unauthorized diversions. The authors held the bill over to next spring, and we will engage in grassroots organizing to ensure AB 460’s advance in 2024.

Fair Regulation of Water Rights – AB 1337 by Assemblymember Buffy Wicks. Grants the SWRCB authority to curtail any diverter, regardless of the basis for their right, when water is unavailable under the diverter’s priority of right. Even though about a third of all surface water is diverted under a pre-1914 water right, the water code, which authorizes the Water Board to curtail rights during non-emergency water shortages, only applies to post-1914 rights. Therefore, even when there is not enough water to satisfy all pre-1914 right holders, the SWRCB lacks the authority to regulate, and these right holders are left to police themselves. The legislation is now a two-year bill, and PCL and our allies will work to pass AB 1337 in 2024 to close this loophole.

These bills are part of California’s larger strategy for climate change adaptation. Other efforts include water management planning, recharge projects, urban storm-water capture, water use reduction, reuse, and recycling across all sectors.

The supporters of SB 389 include: Wholly H2O, California Coastkeeper Alliance, California Outdoors, Northern California Council of Fly Fishers International, Cal Trout, Climate Reality California Coalition, Mono Lake Committee, Climate Reality, California Environmental Voters, Sierra Club California, Natural Heritage Institute, Defenders of Wildlife, California Sportfishing Protection Alliance, Climate Action California, California Water Research, Friends of the River, Restore the Delta, Trout Unlimited, Union of Concerned Scientists, Coast Action Group. Center for Biological Diversity, Center for Environmental Health, Environmental Protection Information Center, Restoring the Stanislaus, Natural Resources Defense Council, Social Eco Education, Audubon California, Active San Gabriel Valley, and the South Yuba River Citizens League.

TAKE ACTION: Visit the Governor’s webpage at https://www.gov.ca.gov/

Once you are on the Governor’s webpage, click on the contact tab and select contact on the drop-down menu. You will see two options – select the “by email” form. For the subject, select “an active bill.” A second option will open to indicate the bill type “SB 389,” and our bill should come up. Then select “Leave a comment” and click “Next.” Select “pro,” add “SB 389” to the subject line, and then copy and paste the message below into the message field. Feel free to add to or rewrite the message if you would like. At the end, the contact form will ask for your name and email; your phone number is optional.

A sample message is below, and you can also create your own. Be sure to keep it short and positive and thank the Governor for his consideration.

“Dear Governor Newsom,

Please sign SB 389 by Senator Allen into law. SB 389 will ensure a more accurate evaluation of water usage in California and advance equity for all water users.

Thank you for your consideration.”

PCL Background

In 2020, the Planning and Conservation League (PCL) convened a group of water law and policy experts to develop recommendations for Updating California Water Laws to Address Drought and Climate Change. The report contains 11 recommendations to modernize California’s water rights law. Read the full report – Updating California Water Laws to Address Drought and Climate Change.