Water Rights ---   Surface Water

It all started with the miners.  There was some irrigated farming around the early missions, but the real movement of water from the streams of California began with the gold miners. The first ‘49ers worked in the streams with their gold pans, but gold fever soon prompted them to look farther ahead. Thus began their actions to take (or “appropriate”) water from a stream and use it elsewhere where gold might be found – as early as 1850 there were lawsuits in California over the respective rights to this practice. 

The California courts concluded that the concept of “first in time, first in right” should be applied. A water right was acquired and maintained simply by use, and any user who came later was subordinate to that use. Postings often were made to indicate the intent to divert the water and the place and purpose of use, but this was not essential.  Proof of priority of use and continued usage were all that really mattered.

The miners gradually moved water farther and farther away from the streams through construction of long ditches and flumes. By the 1870s the miners had turned to hydraulic mining, using huge water cannons to wash away the hillsides and allow the gold to be sifted out. The vast erosion caused by this practice can still be seen at the Malakoff Diggins State Park above Nevada City. The dirt would wash downstream, filling the riverbeds. The hydraulic mining practices at Malakoff caused silt to fill the channel of the Yuba River and ultimately led to landmark litigation.

The bed of the Yuba River at Marysville filled up with silt until it was higher than the adjacent land outside the town's limited levee system.   So when it flooded, this water, appropriated by the miners, moved large quantities of silt onto adjacent farmlands, almost covering the orchards, to the top of trees, with silt. The farms sued the miners.  The railroads quietly supported the farmers. Shipping a load of grain brought them more revenue than carrying a few sacks of gold. It was not just a fight between farmers and gold miners; it was between the foothills and the flatlands and involved the most valuable industry in California – agriculture.

The farmers won.  The suit involved not the use of the water (as it might today) but the use of the land. The court held that the miners must use their land in a manner which did not injure the lands of others.   This was a basic principle of English common law. It was not strictly an environmental decision but has been called one. It virtually shut down the mining industry.

Meanwhile, in the valleys, farmers were also “appropriating” water, moving it away from river-adjacent lands to irrigate crops.  In the 1880s, Miller and Lux, owners of a large cattle and farming operation in the Central Valley, decided to try to take the water from the appropriators who were upstream from the Miller and Lux ranches that adjoined the stream, by claiming a prior “riparian” right. The riparian right, which also had existed in English common law, allowed owners of land adjacent to a stream to use the natural flow of the stream. This right, under English law, was prior to that of appropriators who took the water for use in locations away from the stream.   The California Supreme Court decided that indeed the riparian right was applicable, as California had adopted English common law as the basis of its own law.

The principle of adjacent owners having the first right made sense in rainy England where there was little need to move water away from a stream.   Adding the riparian right to the system of prior appropriation already accepted by the California courts, however, made California water law quite complex.   Most Western states have rejected the riparian right and rely solely on appropriation.   They believe that the riparian right is not a useful concept in the dry West.   Indeed it is scarcely applicable south of the Tehachapi Mountains where few streams have a usable year-round natural flow available for riparian use.

In California, as in other regions where stream flow is not adequate for use all year long, dams and reservoirs were built to capture and store high winter flows to protect people and land from floods, generate power and provide water for irrigation and domestic use during the drier seasons. Since the riparian right of the adjacent land is limited to the natural flow, it does not include storage for future use.   All storage of water to be held for some later use, or for flood control or power, must therefore be under an appropriate right.

All riparian users have a right to share with each other the natural stream flow.   Since the right fluctuates with the natural stream flow and with the users of other riparian right holders, it is not easily quantified.   It is not gained by use or lost by nonuse.   Appropriators have a right to a specific amount of water depending on their historic use, and the extent to which the water is physically available after all prior rights have been satisfied.   The appropriative right can be lost by lengthy nonuse.   Balancing these two basically conflicting rights has not been easy.   It has resulted in adjudications of many streams, especially where there is limited natural flow.   Adjudication requires all claimants to prove the nature and extent of their respective rights, an expensive and time-consuming process.

The right of the riparian to the natural flow gave rise to a lawsuit in the 1920s with great impact on California water law.   Mrs. Amelia Herminghaus, who had a ranch along the San Joaquin River, sued the Southern California Edison Company which, as an appropriator, was storing water upstream from her property for power generation.   She claimed her riparian right gave her the prior right to the full flow of the stream, including the high flows that each spring would spill out onto her adjacent extensive pasturelands and irrigate them.   The State Supreme Court found that indeed her riparian right included these natural flows, and the upstream storage of the Southern California Edison Company was subordinate to her riparian right.

The decision gave rise to an amendment to the State Constitution which was approved by voters in 1928. The amendment limited all users of water in California, including those under a riparian right, to a “reasonable and beneficial use.”   The State Supreme Court subsequently decided that a use, such as having spring high flows run wild over adjacent land, might be beneficial but would not be reasonable given California's limited water supply.

In 1914 the State Legislature decided that the informal method of acquiring and maintaining an appropriative right to divert water from a stream simply by use was not adequate.   A new law was enacted requiring a permit to be filed with the State Engineer for all appropriations of water begun after December 1914.   A permit would be issued based upon the proposed use, purpose, location and season.   A reasonable time would be allowed to put this permit to use.   The State Engineer would, after the time prescribed, examine the use and issue a license to the permittee based on the extent of use within the time prescribed.   This license could be recorded.   This provided a much more certain identification of who claimed appropriative rights to a stream.

This Authority of the State Engineer has now been delegated to the State Water Resource Control Board, which also has authority over water quality issues.   Unfortunately, from the viewpoint of the Board, this authority does not extend to either riparian rights or to appropriative rights alleged to have begun usage before 1914.   These rights can be asserted in Board proceedings, but the Board cannot regulate or control them unless an adjudication of the stream is requested and concluded, either through the Board or a court.

Still another water right for surface water exists, in a very few places, which is called the “pueblo right.”   This applies to Los Angeles and a very few other communities that were recognized “pueblos” under Mexican law.   This right is the best of all, as it trumps all others to the extent of the needs of the “pueblo.”   It applies, however, only to that portion of the city which constituted the original pueblo when California began.

Water Rights – Groundwater

The law of groundwater usage in California, that is, water from wells, developed in a different manner from the law of surface water usage.   Since 1914, surface water usage has been controlled, at least for new uses, by the permitting system adopted that year.   The use of groundwater, however, has not been the subject of control except through the courts.   The applicable state laws control only groundwater quality, mostly for domestic usage, through controls on well drilling.   But the statutes do not control the place of use or how much groundwater is used.

The same general judicial concepts have developed, however, as those for surface water.   The owner of the land located above the groundwater source has an “overlying” right, comparable to the riparian right.   It has a similar priority to that of the riparian right.   Those moving water elsewhere for use, like the appropriator of surface water, have an appropriative right to use based upon the time of first use and the extent of use.   Strangely, however, the use of well water by a city is considered an appropriation even when it is above the groundwater source.

The State Water Resources Control Board has control only over surface water uses begun after 1914 and underground water in “known and definite channels.” This latter phrase has been interpreted as applying to the underflow of a stream, and early decisions of the State Supreme Court assume that if water comes from the ground, it is groundwater.

 The “known and definite channel” phrase is currently being examined. In a broad sense, there probably is always some interface between the surface stream and the adjacent groundwater basin. Some would suggest that this phrase might include all groundwater within a valley within which a surface stream flows. That would greatly widen the jurisdiction of the State Water Resources Control Board and generally upset the previously narrow interpretation of that phrase with potentially drastic impacts on groundwater uses in California. Drawing the line between the groundwater and the “known and definite channel” has been the subject of much debate.

 There is another type of “right” that has largely disappeared from the surface water arena as a result of judicial decisions and surface water regulation, but is still applied to groundwater. This is the “prescriptive right.” This term means that a groundwater user has been, in effect, stealing groundwater from his neighbors long enough for the objection to that use to be outlawed by the statute of limitations. It applies differently to private and public uses, as the latter have more protection. These three competing rights of overlying, appropriative and prescriptive users have resulted in groundwater adjudications in a great many groundwater basins where the natural replenishment is less than the annual extraction, especially in Southern California. Adjudication requires all users within the groundwater basin to participate and prove their rights, involving much time and expense.

Water development  

In the 1880s the Legislature authorized the formation of irrigation districts, local entities given the power to develop irrigation systems and reservoirs to store water for use during the irrigation season. A considerable number of such local districts were formed and a great deal of water development began. Local districts also were formed for domestic water development.

 In the early 1900s these local districts built a substantial number of local systems to serve irrigation or domestic water, with reservoirs constructed along the western slope of the Sierra Nevada in the Sacramento and San Joaquin Valleys, as well as in Southern California. The largest irrigation district was, and is, the Imperial Irrigation District, which developed the early appropriation of Colorado River water to serve its extensive irrigated agriculture. These early attempts to harness the Colorado River resulted, during a 1905 flood event, in the river flooding the path of that early diversion ditch, inadvertently creating the Salton Sea.

Development in the early 1900s by cities included that of Los Angeles harnessing the flows of the Owens River in the eastern Sierra to quench the thirst of its residents. The City of San Francisco, at about the same time, and to the great distress of John Muir, harnessed the Tuolumne River and built the Hetch Hetchy Reservoir for a supply of water fed by gravity through a pipeline from the mountains to the San Francisco Bay. The East Bay Municipal Utility District (Oakland area) also developed a project in the Sierra Nevada foothills to store water on the Mokelumne River and deliver it by pipeline to the eastern portion of the bay.

In the 1920s, California developed an ambitious plan to store water on the upper Sacramento River and move it to the San Joaquin Valley where irrigated agriculture already had reached an apparent limit in its local supplies of surface water and groundwater. An earlier plan to move water from the Sacramento-San Joaquin Delta up the San Joaquin River channel by means of a series of lifts was abandoned as impractical. During the Great Depression it was apparent the state would not be able to complete the large Sacramento River project, and it was taken over by the U.S. Bureau of Reclamation (USBR) as a federal project. It became the Central Valley Project (CVP) we know today, with reservoirs on the Sacramento and American Rivers and a canal into which water from the Delta is lifted, delivering irrigation water to the west side of the San Joaquin Valley. To serve the east side of the valley, the USBR built Friant Dam on the San Joaquin River with a canal reaching all the way to Bakersfield.

Another project built during the depression to boost California's water and power supply — and especially find work for the unemployed — was construction of Boulder (now Hoover) Dam on the lower Colorado River. Built by the USBR, this project also provided a place to store water supplies for Nevada and Arizona. To distribute its share of Colorado River water, a large number of Southern California cities; and water districts formed a water wholesale entity, the Metropolitan Water District of Southern California, which constructed a major water delivery system from the Colorado River to its member cities and districts. This system now serves approximately half of California's population.

In the 1960s, largely through the efforts of Governor Edmund G. “Pat” Brown, the State Water Project (SWP) was developed. The SWP consists of a major reservoir near. Oroville on the Feather River with a pumping facility in the Sacramento-San Joaquin Delta that lifts water released from the Oroville Dam into the California Aqueduct. The 444-milelong aqueduct traverses the length of the San Joaquin Valley, is lifted over the Tehachapi Mountains and extends into Southern California. Water from the project is distributed to some 29 contracting agencies, including the Metropolitan Water District of Southern California, Kern County Water Agency and Santa Clara Valley Water District. The remarkable effect of the SWP facilities is to connect California from virtually its northern to its southern borders. Together, the SWP and CVP can move water to almost every part of California except the central and northern coasts.  

Where we are today

The development and evolution of California water rights reflects the changing values of the times. Following the Gold Rush era and up to the post-World War II years, appropriation and development of resources were premised on concepts of noninterference with prior right holders. In the 1960s and 1970s there was a shift in public values that saw increasing support for protection of the environment and natural resources including water. This shift in philosophy was mirrored by some of the legislative and court developments that took place.

These include passage of federal and state laws designed to protect wild and scenic rivers (federal 1968, state 1973), the federal Clean Water Act (1972), the federal and state endangered species acts (federal 1973, state 1970) and, later, the CVP Improvement Act (1992).

The courts also have played a role in environmental restoration. Perhaps the most celebrated and important judicial intervention occurred with regard to Mono Lake. The California Supreme Court applied the Public Trust doctrine, which requires environmental protection, to the non-navigable tributary creeks of Mono Lake. That 1983 decision resulted in a long-term plan to restore the Mono Lake region, and perhaps more importantly, set a legal precedent that could be applied to seek environmental restoration elsewhere.         

The laws and court rulings, and the listing of numerous endangered species, have brought major changes to traditional operations of California water facilities. They also brought about a sea change in the construction of additional large water projects, with few state- or federal-funded facilities gaining political or economic victory in the decades since the SWP.          

What new projects have been built and what many are focusing on for the future — are projects such as these:

For the future, many are focusing on similar water projects, with studies ranging from enlarging existing dams to building additional off-stream facilities and constructing more underground water banks. Other potential sources of supply for California include more groundwater storage banks, water conservation, water recycling, desalinization and water transfers from one user to another. These new sources of supply will augment the traditional surface water use and groundwater use, which began with the arrival of the ‘49ers some 150 years ago.

 

George Basye, water lawyer attorney for Downey Brand, is president of the California State Library Foundation and past president of the California Historical Society and the California HIstorical Foundation. He is the author of Battling the River: The History of Reclamation District 108.

Sue McClurg is the program director for the Water Education Foundation located in Sacramento.   She is the author of the beautiful and historically detailed book, Water and the Shaping of California, reviewed on page 72 of this issue.