CA Water Law Symposium: Water Rights Enforcement in California
May 16, 2024
Maven's Notebook
At the 20th Annual California Water Law Symposium, Downey Brand partner and water law attorney Rebecca Smith represented the water user perspective in a panel discussion titled Water Rights Enforcement in California, which explored the controversy of navigating California’s complex water landscape. The panel was organized by the University of Pacific, McGeorge School of Law and moderated by Jennifer Harder, professor of Water Law at McGeorge. Co-panelists included attorney Andrew Tauriainen of the State Water Resources Control Board Office of Enforcement and Walter “Redgie” Collins, Legal and Policy Director at California Trout.
This recent article from Maven’s Notebook summarizes the discussion, featuring Rebecca Smith’s commentary on California water rights, the water user perspective on proposed water right legislation, water data and improvement efforts, and the State Water Board’s enforcement powers, including the proposed legislative measures designed to strengthen regulation in this area.
The administration of the water rights system is informed by California’s history, which creates significant challenges. Ms. Smith said that one of her favorite quotes in California water law comes from Justice Ronald Robie: ‘The history of California is written on its waters.’
“California’s history of water far predates many of our current structures,” said Ms. Smith. “So when we think about the way we administer the system, remember that it is a system that came to be long before our modern age and doesn’t always reflect some of the especially climate realities that we know today.”
Considering how complicated the water system in California is, Rebecca Smith noted the lack of nuance that is often needed in water rights. An example is SB 389, a bill introduced last year that allows the State Water Board to review, verify, and issue decisions on senior water rights claims not granted via the Water Commission Act of 1913, namely pre-1914 appropriative and riparian water rights.
“What’s really important to the water user community is that when those proposals [like SB 389] come in, they need to be practically implementable,” continued Ms. Smith. “We need our legislators to understand what the practical reality is of the language they are offering.”
Rebecca Smith also discussed California’s efforts to modernize water data through legislation and open data, stressing the need for improved predictive science and timely data to aid planning and decision-making as the climate crisis intensifies.
“We know that we have a more volatile climate; we know that we have greater and greater restrictions when we need water, and there’s less available,” continued Ms. Smith. “ But, for example, on the Cosumnes River … In most summers, the river goes dry halfway through the year. In January of 2023, 65,000 CFS were coming down that river, blowing out levees and roads and, ultimately, causing loss of life. So we’re still having a hard time predicting that kind of volatility, and we’re not predicting it very well. And so we need science and studies on that as well to be able to inform our decision-making over the coming years.”
Smith emphasized that the State Board should not be the sole authority on water rights due not only to the role of courts in adjudicating these issues, but also the importance of court involvement for due process and property rights protection. She maintained that the Board’s slow processes and the complex nature of water rights necessitate involvement from multiple bodies.
“I don’t think it’s anybody’s position that the State Board needs to butt out of water rights,” said Ms. Smith. “But water use is fundamentally tied up in the weight of protecting property rights. We do have interim relief ability there. We also have enormous relief ability in the court. And we have a much more structured and robust sense of due process on the court. So I’m not saying the State Board needs to butt out, but that the state court can’t be the only venue that houses all of our work on water rights unless we’re prepared to pretty drastically expand the scope and the work of the State Board.”
“Whether things like self-policing work is a tough proposition because it’s easy for everybody in a watershed to get along when there’s lots of water around,” continued Ms. Smith. “It’s a lot harder without really strong carrots and sticks built in to make sure that everybody gets along when there is not. And in particular areas like the Delta, where we’ve got such an unbelievably complicated system with so many waterways coming into it, that can be a really challenging proposition.”
If she could grant herself one wish with respect to water rights enforcement, it would be investment in facilitation and better stakeholder engagement across multiple disciplines. Improved data is undoubtedly valuable, but above all, Rebecca Smith strongly believes in a collaborative approach to work through California’s water management issues, and that the water community capable of innovative solutions when all of the players put their heads together.
To read more, you can access the full Maven’s Notebook article here.