California's Efforts to Solve Its Water Shortage: Can They Succeed?

• Jurisdiction: California,United States
• Author: by Edgar B. Washburn
• Publication year: 2015
• Citation: Vol. 24 No. 1

California's Efforts to Solve Its Water Shortage: Can They Succeed?

by Edgar B. Washburn^*

It is no longer news that California is experiencing one of the most severe droughts in its history. The current drought is now more than three years old and there is no certainty as to when it will end. Indeed, with climate change expected to significantly reduce the amount of snowfall in the future - consequently limiting storage and reducing groundwater reserves - a drier future is more likely than not.

Water shortages in Southern California and the Central Valley are nothing new. The underlying problem is not just the drought, but geography. The surface water supply and the areas in need of water are in different parts of the state. Seventy-five percent of the snow and rain occurs in the north and 75% of the usage occurs in the Central Valley and Southern California. The drought has already resulted in substantial reductions of water deliveries from the Central Valley Project ("CVP") and State Water Project ("SWP"), which are the principle sources of water diversions to the Central Valley and Southern California. That, in turn, has resulted in excessive reliance on groundwater pumping for agriculture and the fallowing of thousands of acres of productive farm land. A declaration of drought emergency by the governor, and implementation of restrictions on diversions of surface water by the State Water Resources Control Board ("Water Board"), along with mandated reductions in urban water use, have affected a large percentage of the state's population. Although it had been perceived as being politically infeasible to adopt a statewide program for the management of groundwater and pass a substantial bond issue for the improvement of state water supply infrastructure projects in 2014, the legislature has authorized both. While neither measure will permanently reduce the impacts of the drought, they represent an acknowledgment of the need for fundamental change.

Efforts to date to deal with the drought all operate within the existing legal and administrative structure —which is itself a constraint upon the ability of the state to provide long-term relief. Serious structural impediments include (i) the State's lack of a rational regulatory scheme for groundwater (the recent legislative action is a significant, although belated, move in that direction), (ii) water rights allocations that far exceed the state's mean annual runoff, and (iii) water rights law that reflects late-nineteenth century visions of societal needs, rather than a regime designed to allocate a limited supply of water in an arid region experiencing rapid growth, and on which more recent judicial decisions have overlay additional requirements addressing beneficial use and environmental concerns. Water conservation, recycling, use of improved agricultural irrigation methods, further curtailment of urban use, groundwater storage and regulation, and the facilitation of water marketing are all needed responses, but they have yet to be implemented on the requisite scale. With powerful constituencies on all sides, a consensus leading to a comprehensive long-term plan and solution has proven to be an elusive goal. Achieving solutions will require stretching, revising and sometimes rejecting well-established rules for allocating water. This, in turn, may lead to uncertainty among users, and curtailment of long-standing uses thought to be secure.

WATER RIGHTS

Conceptually, water rights are the right to use the water and to divert it from its natural course. It is a "usufructuary" right.¹ Water itself is not owned, but the right to use it is a property right.² Acquired in accordance with law, the exercise of a valid water right becomes a vested property right and cannot be infringed by others or taken by governmental action without due process and just compensation.³

California's longstanding system of water rights is the legal foundation upon which water allocation has developed. Much of California's agricultural and urban development - together with the expenditure of billions of dollars - is predicated upon the continued existence of that foundation. However, if we were to devise a system for allocating water in California today, it is certainly open to question whether we would adopt the present system - one that gives the highest priority to riparian rights, followed by pre-1914 appropriators, and finally by post-1914 appropriators as long as the uses are "beneficial" and not "unreasonable," without regard to the relative social, economic or environmental value of the usage.

[Page 3]

A. Surface Water

California operates under a "dual" or "hybrid" system of water rights that recognizes both riparian and appropriative rights.⁴ When California achieved statehood, the legislature adopted the common law of England, thereby incorporating the riparian doctrine that confers upon the owner of land the right to divert water flowing from an adjacent stream without regard to the extent of such use or priority in time. A riparian right is the right to divert - but not store - a portion of the natural flow. The diverted water must be used on the riparian parcel. Generally, riparian rights are not lost through non-use and all riparian users have the same priority. In times of shortage, riparian water users must adjust their use to allow equal sharing of the available water supply.

Upon discovery of gold and development of the California mining industry, water was often diverted from streams to be used on non-riparian lands. To accommodate this usage, the doctrine of appropriation originated and was incorporated into California water law. The appropriation doctrine confers upon one who actually diverts and uses water the right to do so, provided the water is used for reasonable and beneficial purposes and is surplus to that used by riparians or earlier appropriators. Appropriators need not own land contiguous to the watercourse, but appropriation rights are subordinate to riparian rights so that in times of shortage, riparians are entitled to fulfill their needs before appropriators are entitled to any use of the water. As between appropriators, the rule of priority is "first-in-time, first-in-right." Appropriative rights may be sold or transferred .

Initially, rights to appropriate water were acquired by actual diversion and use. With adoption of the Water Commission Act in 1913 (effective in 1914), the method of appropriating surface waters was changed and the permit procedure now found in the Water Code was established. Pre-1914 rights and riparian rights are not subject to this procedure - a fact that has led to assertions that the state is without authority to regulate pre-1914 appropriations and riparian rights. Riparian rights continue to be acquired through ownership of land contiguous to the watercourse.

B. Groundwater

Overlying landowners have the right to extract their own groundwater as long as the water is put to a reasonable and beneficial use, with the exception of adjudicated groundwater basins and basins in which a local agency has obtained statutory authority to manage groundwater. Consequently, a landowner in a basin has a right to extract and use groundwater and that right is correlative with the rights of all other overlying landowners in the basin. Those rights are not quantified until the basin is adjudicated.

Groundwater can be appropriated by taking water for use on non-overlying lands if the water is surplus to the reasonable needs of the overlying owners. To the extent that water diversions and surface water availability have decreased or proven to be insufficient for expanded needs, groundwater demands have increased. The result has been a significant depletion of groundwater in many basins, which, in turn, has resulted in serious overdrafts and harm to the aquifers, as well as impacts on connected surface waters.

This increasingly dire situation cannot continue without a strong governmental response. However, unlike virtually every western state, California has not had a statewide management program or permit system to regulate the extraction or appropriation of groundwater. That presumably will change with implementation of 2014 legislation establishing criteria for groundwater management.⁵

C. The 1928 Constitutional Amendment

In 1928, the California Constitution was amended to require that all water rights be subject to a requirement of "reasonable and beneficial use."⁶ This was in response to a California Supreme Court decision that held that riparian owners had the right to use the entire flow of a river and had no duty to appropriators, so long as their use was beneficial.⁷ The reasonable use doctrine prohibits the waste and unreasonable use of water and requires that water use be limited to such water as shall be reasonably required for the beneficial use to be served. The use of water for environmental and in-stream purposes is a reasonable and beneficial use.⁸

It has long been settled that the effect of the 1928 Constitutional Amendment of Article XIV, section 2 was to apply the rule of reasonableness to water rights in virtually every circumstance. It applies to (1) riparian owners, (2) owners overlying underground water, and (3) appropriators. What constitutes a reasonable use or method of use of water is a question of fact to be determined according to the circumstances of each particular case.⁹

THE ERA OF PHYSICAL SOLUTIONS

For the first 120 years of California's existence, solutions to nature's misallocation of water within California - the water in the North, the needs in the Central Valley and Southern California - were physical: capture the water and bring it to where it is needed. This led to a series of ambitious and expensive projects that continue to provide the backbone of California's water allocation infrastructure: the Central Valley Project ("CVP"), State Water Project ("SWP"), the Hetch Hetchy and the Colorado River dams and...