CIRS Blog about Rural California
Controversy awaits the State Water Resources Control Board (State Board) at its July meeting. Due to decreasing water supplies and an extreme drought, the State Board has ordered junior water rights holders in certain watersheds to reduce or cease water diversions. Earlier in June, some senior water rights holders received State Board letters warning of possible curtailments to their water uses as well. So far, these lucky few have maintained their ability to use basically unlimited amounts of water while cities and farmers face mandatory cutbacks, and while several rural communities risk running out of drinking water.
The Associated Press recently found that just 24 of the 3,897 entities with active senior and riparian rights (more than half of which are corporations) reported using more than twice the volume of water that California’s massive state and federal water projects deliver to cities and farms in an average year. To re-state: twenty-four individual senior water rights holders use double the volume of water that is delivered through the state’s vast and extensive system of dams, canals, and aqueducts during an average year. This year, state water projects have reduced deliveries by 95 percent. Senior water rights holders have not been required to conserve water or reduce use by even a gallon.
Despite this reality, combined with the increasing problem of too little water to meet everyone’s needs, the State Board is prioritizing and protecting senior water rights holders’ unlimited and virtually unregulated use over the needs of junior water rights holders including some major agricultural irrigation districts. On July 1, the State Board will consider a measure that could further curtail water diversions from junior rights holders in order to protect senior water rights holders from cutbacks. The State Board has not shared the exact language of the measure publicly, but indicates that gradual curtailment of water use is the state’s best system to protect water rights based on seniority. Powerful groups and agribusiness advocates have already organized against any possible reductions in water use for senior rights holders.
Meanwhile, Californians are paying much more attention than usual to the strictly hierarchical system of water rights that has resulted in private and unregulated control of more than half of the state’s riparian resources (i.e. water from rivers and streams). As the primary water authority in a state that irrigates more than any other, the critical question facing the State Board is how to allocate cutbacks in a publicly beneficial way and according to precedent from more than a century of water rights management in California.
HOW DO WATER RIGHTS WORK?
The California constitution limits all water use to that which is reasonable and beneficial and not “wasteful.” “Reasonable” and “beneficial” use includes irrigation for agriculture, power generation, and a wide range of other purposes including landscaping, recreation, and other private, profitable uses. Court rulings and legislation can supersede reasonable and beneficial water uses, for example, when a legislature re-defines a key term like “public benefit” or when courts order specific protections for endangered species and the increasingly altered habitats and ecosystems that they depend on. Two exclusionary principles underlie the reasonable and beneficial use doctrine in California: first, that the value of water should be measured economically, rather than culturally or environmentally, and second, that water not used for agricultural, municipal, or other defined purposes is water that is wasted.
There is no private ownership of water in California, but rather different types and levels of rights that authorize the use and diversion of groundwater and surface water. California has a unique system of water rights that generally fall into two larger categories: riparian and appropriative. Groundwater use is barely regulated by state authorities and does not require any permit, monitoring, or reporting (unless required by a local water authority).
The same is true for riparian rights, generally senior water rights that remain with properties as they change hands, allowing landowners to pump and/or divert water out of streams that run through or around the land. Riparian rights do not authorize impoundment of streams or creation of reservoirs for year-round use or for use on land outside the watershed. Although the State Board “requests” reports that show how much water riparian rights holders are pumping out of waterways, it has become obvious that systems of monitoring and reporting water use are seriously flawed and/or ignored altogether. As a result, the state doesn’t actually know how much water is being diverted from California’s streams or pumped from aquifers, nor does it know how or where the water is used.
Like riparian rights, appropriative rights are based on a western U.S. tradition of claiming or “appropriating” water on a first come/first served basis. Initially, appropriative rights applied to waters that were claimed by settlers in the 1800s, which did not recognize any existing rights for water use by native communities who did not “use” the water in the same “beneficial” way. The State Water Board issues permits for appropriative water use for claims filed after 1914, including to water agencies, which can then sell allocated water to farmers and other irrigators.
PRE-1914 SUPER RIGHTS
Before the reasonable use doctrine or surface water permitting was formalized in California law, landowners who made a claim to water enjoyed basically unlimited use. Individuals and entities with pre-1914 water rights have maintained the ability to irrigate private lands, operate dams and reservoirs, generate hydroelectric power, and provide water to major cities like San Francisco and Los Angeles for more than a century. These grandfathered rights are often without limit, without oversight, and held as superior to water rights issued after 1914. The State Board lacks the authority to limit, monitor, or regulate pre-1914 water rights, but it can investigate problems and arbitrate disputes that stem from water diversions and uses conducted under senior rights.
In California, water and power have long gone hand-in-hand. The inequities in California’s water systems are especially evident in the Central Valley, where some farmers have opted to leave land idle due to lack of water, others are compensating by pumping unsustainable amounts of groundwater, and several communities lack reliable or safe sources of drinking water--all while senior rights holders can continue to pump water out of streams and irrigate without limit.
It is difficult to imagine how different the state might be if not for the legacy of colonization and settlement that systematically prevented native populations, low-income communities, and people of color from controlling water resources or taking part in water-related decisions. Indeed, during a key phase of water infrastructure expansion in the late 1800s and early 1900s, federal agencies actually funded irrigation projects with money earned from selling lands previously “reserved” for Native American groups.
For now, in absence of a major legislative overhaul of California’s water rights system, it is likely that the least senior and least powerful water users will continue to bear the brunt of California’s drought, while the State Board struggles to enforce 19th and 20th century water policies appropriately and fairly.
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