California Water Rights & Dignity: a Response to Phil Williams

• Jurisdiction: California,United States
• Author: Written by Raquella Thaman
• Publication year: 2022
• Citation: Vol. 31 No. 1

CALIFORNIA WATER RIGHTS & DIGNITY: A RESPONSE TO PHIL WILLIAMS

Written by Raquella Thaman¹

While I am a great believer in the free enterprise system and all that it entails, I am an even stronger believer in the right of our people to live in a clean and pollution-free environment

—Barry Goldwater

INTRODUCTION

In the Fall 2021 issue of Environmental Law News, Environmental Law Section Chair Jessi E. Hafer Fierro published a message quoting Rachel Carson and inviting readers to expand their viewpoint from the myopia of the ultra-specialized so as to make our decisions with a greater tolerance of the "larger frame" into which our problems fit.² It is with a wholehearted acceptance of this invitation that I offer the following response to another item³ published in the same issue, Phillip Williams' Property in the Twenty-First Century: How the Law Regarding Water Rights Curtailments Through Emergency Regulation Fails to Recognize Dignity and why it Matters. In his article, Mr. Williams assembles an argument that California law regarding water rights curtailments through emergency regulation fails to recognize dignity.

Williams draws from the work of several philosophers, including Hegel and Piketty, to argue that holders of water rights—be they people or corporations—suffer indignity when those rights are curtailed. Williams's argument has three premises: that property and personhood are interdependent; that a water right is an object with which a person can have a distinct relationship to the exclusion of others, and that a corporation is a person capable of having dignity and personhood. Review of Williams' philosophical analyses is beyond the scope of this brief response. This response will focus on Williams' second and third arguments, proceeding in three parts. First, this response provides a brief history of California's water rights system, to provide context for the theoretical arguments. Second, this response will examine the suggestion that a water right is inexorably linked to personhood, and concludes that, to the contrary, a water right may be fungible, rather than personal, in many instances, and therefore not linked to personhood. The human right to water, in contrast, is inexorably linked to personhood. Third, this response suggests that an institutional water supplier such as a water district or corporation does not qualify as a "person" under due process dignity interests. Finally, this response addresses the distinction between water rights and the human right to water along with Williams' assertion that California's human right to water legislation, codified at California Water Code section 106.3, should be interpreted to protect the interests of appropriative water rights holders.

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BACKGROUND: A (VERY) BRIEF HISTORY OF CALIFORNIA WATER RIGHTS

The quantity of water on Earth is unevenly distributed across the globe, and it is finite. The water molecules that follow this path through the hydrologic cycle are the same that have done so since the age of dinosaurs and before. It exists in abundance, (and overabundance), in some regions and is virtually absent in others. Once the determining factor of where human populations could establish themselves, water has for thousands of years now been captured, moved, and manipulated in order to make desert and swampland alike fit for human population.

Over thousands of years, from Hammurabi's Code (of which only 4 of 282 sections addressed water)⁴ to the codification of accepted norms and obligations in the Convention on the Law of the Non-Navigational Uses of International Watercourses, humans have attempted to establish systems for the management of shared water resources. In this historical context, the arc of California's history of water rights legislation is relatively short and is indeed bending in the direction of justice.⁵ From a Gold Rush scramble to the proclamation of a human right to water, we are making progress. The continuing flaw in California's system of water rights is that it allows for the commodification, capture, and removal (through direct or virtual means) of a scarce and necessary resource.⁶ The ability for the Water Boards to enact emergency regulations is a comparatively small measure of protection for the people of California and our ecosystems.

Born of the prospector's quest to "strike it rich", California's hybrid system of water rights emerged in the lawless, pre statehood "wild west" as gold prospectors staked claims to water as they would have a mine. The water necessary for the gold extraction process often had to be moved great distances from its source and elaborate systems for capturing water and transporting water were developed. Absent a formal system of laws governing water rights, the law-adjacent rule of first in time, first in right, held sway as it evolved into the system of appropriative rights we continue to recognize.⁷

When California entered the Union in 1850 one of the first acts of the law makers was to adopt the English common law used in the Eastern states. This included the establishment of riparian water rights, giving landowners with property contiguous to a body of water the right to use that water on that piece of property.⁸ This system of rights existed parallel to the unregulated process of simply staking a claim to a quantity of water, and putting it to beneficial use. Sixty-four years later in 1913, just over one hundred years ago, California's process of permitting water rights was established creating the hybrid system under which we now operate.⁹ In 1928, 14 years after the permitting system was established, the first incarnation of Article X Section 2 (enacted then as Article 14, Section 3) in order to address disputes between riparian rights holders who were not initially required to put their water rights to beneficial or reasonable use. It was reenacted verbatim and recodified 48 years later in 1976.¹⁰

Recently, the California Legislature has revisited California's water rights system in response to dire drought conditions, which threaten river ecosystems and impact agricultural and drinking water resources. At this time over a million Californians do not have access to clean water for drinking and bathing.¹¹ In 2012, only two years after the United Nations General Assembly recognized the human right to water,¹² California became the first state in the United States to recognize the human right to water when then-Governor Brown signed Assembly Bill 685 into law, thereby enacting Section 106.3 of California's Water Code.¹³ Reinforcing the provisions of the federal Safe Drinking Water Act, Section 106.3 reads:

(a) It is hereby declared to be the established policy of the state that every human being has the right to safe, clean, affordable, and accessible water adequate for human consumption, cooking, and sanitary purposes.
(b) All relevant state agencies, including the department, the state board, and the State Department of Public Health, shall consider this state policy when revising, adopting, or establishing policies, regulations, and grant criteria when those policies, regulations, and criteria are pertinent to the uses of water described in this section.
(c) This section does not expand any obligation of the state to provide water or to require the expenditure of additional resources to develop water infrastructure beyond the obligations that may exist pursuant to subdivision (b).
(d) This section shall not apply to water supplies for new development.

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(e) The implementation of this section shall not infringe on the rights or responsibilities of any public water system.

Simply put, California Water Code section 106.3 establishes a policy that the human right to water is to be considered by state agencies when developing their policies.

THE PERSONHOOD THEORY OF PROPERTY: WHERE DOES AN INSTITUTIONAL INTEREST IN WATER FIT?

WATER, WATER RIGHTS, AND THEIR CONNECTION TO PERSONHOOD

Establishing that property should be understood as a legally recognized set of rights¹⁴ Williams asserts a personhood theory of property, under which, where property is bound up with a person's sense of self, a person suffers an indignity when the State deprives that person of the property without due process. In Williams' view, water rights constitute property that is "bound up with a person's sense of self," and curtailments during drought equate to deprivation of that property. Building on this theme, Williams asserts that the personhood theory provides an opportunity for "constructive criticism of the current law regarding [water] curtailments" during drought.¹⁵

Margaret Radin's 1982...