When ranchers to stop pumping water from the drought-plagued Shasta River last year, state officials fined them $4,000, or roughly $50 each. Now California legislators are that would triple fines for such infractions 鈥� and could allow the penalty to climb higher than a million dollars.
Authored by , a Democrat from San Ramon, the bill cleared the Assembly in a 43 to 20 vote last week and is now awaiting discussion in Senate committees.
The proposed legislation aims to give California鈥檚 water enforcers more muscle to act swiftly and levy larger penalties for water agencies, irrigation districts and landowners who violate state orders and policies by pumping from rivers and streams.
Bauer-Kahan introduced AB 460 after CalMatters reported in November that on about 80 Siskiyou County ranchers 鈥� served by the Shasta River Water Association 鈥� who had violated an emergency order to stop pumping. The river鈥檚 , threatening ecosystems and rare fish such as salmon.
Yet in a public demonstration of the state鈥檚 limited powers, the ranchers kept the pumps on for eight days.
鈥淧aying the fines was worth it to them to take what they took, and that shows a real weakness in what we have done,鈥� Bauer-Kahan said. 鈥淚t was so clear that our law was not working.鈥�
The State Water Resources Control Board鈥檚 maximum fine under existing law is $500 per day. The state also can issue a cease and desist order, which carries maximum fines of $10,000 per day, but it requires a 20-day waiting period and allows the users to seek a public hearing. Such provisions allow the violations to continue for weeks.
鈥淭he board doesn鈥檛 have the tools to act quickly,鈥� said , water program director at the Center for Law, Energy & the Environment at UC Berkeley School of Law. 鈥淭he fish don鈥檛 care if the lawyers are trying to figure out who鈥檚 right or wrong if they鈥檙e dead.鈥�
Rick Lemos, a fifth generation rancher and board member of the Shasta River Water Association, said the ranchers turned their pumps on last August because their cattle were at risk without more water. Costs from hauling water and buying hay were climbing, and the ranchers faced the prospect of selling off cattle.
鈥淲e could have kept going for $500 a day,鈥� said Rick Lemos, a fifth generation rancher and board member of the Shasta River Water Association.
Had the Assembly bill been in force then, the ranchers could have faced daily fines between $1,500 and $10,000, plus $2,500 for every acre-foot of water diverted, which could reach more than $1,000,000.
Lemos said if fines had reached $10,000 per day, 鈥渨e definitely could have had to rethink it. That鈥檚 for damn sure.鈥� Yet, he also added, 鈥淚鈥檓 not so sure we wouldn鈥檛 have done it again. When you got cattle out of water and you have no other options, what are you gonna do? 鈥�
鈥淚f you鈥檝e got 5,000 head of cattle that are worth $1,200 apiece, and they鈥檙e starting to die. I mean, how much can you spend for eight or 10 days to remedy the problem?鈥� he said.
The law would target landowners, water agencies and districts that take water from rivers and streams, not individual consumers who turn on their taps.
Sponsored by conservation groups 鈥� California Trout, the Planning and Conservation League and Trout Unlimited 鈥� the bill is also supported by the Karuk and Yurok Tribes.
鈥淭he fine doesn鈥檛 fit the crime,鈥� Karuk Tribal Council Member Arron 鈥淭roy鈥� Hockaday said. 鈥漌hat鈥檚 gonna stop them from doing it again this year, or next year? Or anytime they want? I mean, you got 80 farmers only paying $50 apiece. They鈥檙e gonna keep doing it.鈥�
But water providers, builders and agricultural groups oppose the bill, saying it is so broad that even those diverting water legally could be ensnared in the expanded water board powers.
鈥淚f (the bill) did nothing else but raise penalties, that would stop what went on on the Shasta,鈥� said Kristopher Anderson, the Association of California Water Agencies鈥� legislative advocate. But he said, by expanding other authorities, 鈥渢his bill systematically stacks the deck against water right holders in favor of the water board.鈥�
One new authority would be issuing interim relief orders to stop diversions or address potential harms. In urgent cases, these could take effect immediately 鈥渢o prevent imminent or irreparable injury to other legal users of water, or to instream beneficial uses,鈥� the bill says. Water users who ignore an interim relief order could face fines of $10,000 per day and $2,500 per acre-foot diverted.
鈥淧aying the fines was worth it to them to take what they took, and that shows a real weakness in what we have done鈥t was so clear that our law was not working.鈥�ASSEMBLYMEMBER REBECCA BAUER-KAHAN, DEMOCRAT FROM SAN RAMON
Jennifer Pierre, general manager of the State Water Contractors, an association of public water agencies, said that vague definitions in the bill such as 鈥榠rreparable injury鈥� creates uncertainty over what water would actually be available to suppliers in the future 鈥� which could impede development.
Anderson added he would prefer to see enforcement instead run through the courts rather than state-issued fines 鈥� an avenue that the water board could have but did not pursue with the Siskiyou County ranchers.
But water board officials said in the Shasta River case, seeking a court order would have kicked off a lengthy, resource-intensive battle.
鈥淵ou鈥檝e got both parties who are going to be subject to extensive litigation and litigation costs,鈥� said , director of the water board鈥檚 Office of Enforcement. 鈥淲e thought we could react quicker鈥� In hindsight, we see that we didn鈥檛 gain the compliance we were hoping for from those initial actions.鈥�
Bauer-Kahan鈥檚 bill is one of several taking aim at the state鈥檚 that state analysts warn than is available. The system, which among users, is facing mounting criticism for its history of inequality and exclusion of Native peoples and people of color.
would expand the state鈥檚 powers to even by water users with claims that pre-date the . would allow the board to investigate the legitimacy of senior water rights claims.
All three face opposition from builders, water providers and agriculture. So far they have cleared their houses of origin and are continuing through the Legislature.
California water watchers say it鈥檚 critical to bolster state powers to enforce water laws.
鈥淚s the genie out of the bottle now?鈥� Berkeley鈥檚 Kiparsky asked.
鈥淲hat happens during the next drought now that it鈥檚 been very publicly demonstrated that water users can in essence treat the water board鈥檚 enforcement actions as an additional, and sometimes very modest, cost of doing business?鈥�