California’s lengthy battle for water rights moves into the Legislature

After its first committee hearing, Assembly Bill 1337 was amended last week, which could be the opening salvo of a monumental political and legal war over who controls access to water in California – an issue that stretches back to the state’s founding in 1850.

If enacted as now proposed, AB 1337 would overturn a key state appellate court decision and give the state Water Resources Control Board the legal authority to curtail diversions from rivers – even by those who now hold the most senior water rights, those gained prior to the state asserting authority over water in 1914.

The legislation, carried by Assemblywoman Buffy Wicks, a Democrat who represents East Bay suburbs, would bolster a years-long drive by environmental groups to enhance natural river flows by reducing agricultural diversions during periodic droughts.

The stage was set eight years ago when, during one such drought, then-Gov. Jerry Brown declared an emergency and the water board attempted to impose restrictions on pre-1914 rights holders, contending that there simply was not enough water to meet their demands.

A curtailment order and a more than $1 million fine served on the Byron-Bethany Irrigation District, which serves customers in three counties on the southern edge of the Sacramento-San Joaquin Delta, symbolized the conflict.

“We are a test case,” Byron-Bethany’s manager, Rick Gilmore, said at the time. “I think this has become a larger issue. I think the water board wants to use this as a precedent so they can start to gain more control over senior water right users.”

An immediate confrontation was averted when the board modified its orders but litigation continued over the underlying issue of whether the board could curtail diversions by senior water rights holders via emergency order.

Byron-Bethany and other rights holders won at the trial level but the state appealed, only to lose again last September in the 6th District Court of Appeal in a decision known as the California Water Curtailment Cases, which is specifically referenced in the revised AB 1337.

“It is the intent of the Legislature that this bill clarify that the State Water Resources Control Board has the necessary authority to curtail pre-1914 water rights and address the gap in the state board’s authority revealed by the court in the series of cases known as the California Water Curtailment Cases,” the measure declares.

In the aftermath of the 2015 clash over curtailment orders, Brown and later his successor, Gavin Newsom, sought to avoid direct confrontation by forging “voluntary agreements” under which farmers would give up some water to increase river flows for fish and other species.

The process was spurred by the board’s 2018 release of draft water quality regulations that would require roughly 40% of natural river flows to reach the Delta, thus sharply reducing agricultural diversions.

A few months later, in his first State of the State address, Newsom declared, “Our first task is to cross the finish line on real agreements to save the Sacramento-San Joaquin Bay Delta. We must get this done – for the resilience of our mighty rivers, the stability of our agriculture sector, and the millions who depend on this water every day.”

The voluntary agreement process has achieved only minimal success, and environmental groups, which opposed it, continue to press the water board to finalize and enforce its long-pending water quality rules.

Given the immense stakes, AB 1337 and several other measures to enhance the water board’s authority will be the subjects of intense legislative skirmishing. Pardon the pun, but 2023 could be a watershed year not only for its immense amounts of rainfall and snow, but for the 173-year war over control of California’s finite water supply.