Rethinking Old Rights

• Jurisdiction: California,United States
• Author: Written by Karrigan Bork
• Citation: Vol. 32 No. 2
• Publication year: 2023

RETHINKING OLD RIGHTS

Written by Karrigan Bork¹

INTRODUCTION

California's water rights come in many flavors: appropriative rights, riparian rights, pueblo rights, tribal rights, federal reserved rights, to say nothing of groundwater . . . it is quite a list! Within the appropriative surface water rights category, water law practitioners traditionally create two groups: 1) water rights granted by the various incarnations of the California State Water Resources Control Board (the Water Board), which began issuing water right permits and licenses as the State Water Commission on December 19, 1914;² and 2) those pre-1914 rights obtained simply by using the water before the permit system.³ Because California law requires that older appropriative rights get all of their water before newer appropriative rights get any,⁴ and because pre-1914 rights sit outside some (but not all) mechanisms of regulatory control by the Water Board,⁵ older rights are generally considered to be better water rights in California.⁶ This article complicates that view in two (hopefully useful) ways.

First, consider the full range of post-1914 rights. Although the Water Board issued permits for all of the rights, the role of the Water Board has transformed over the years. The Water Board began as a purely ministerial administrative body, required to issue permits for any water that remained instream, with no discretion to deny a permit in the public interest or to protect instream uses or other non-consumptive uses. This gradually changed, and the "modern" Water Board now inhabits a more robust regulatory position, taking by turn legislative and judicial actions in seeking to regulate California's sprawling water system.⁷ As discussed below, perhaps the most appropriate marker for the modern Water Board would be the California Supreme Court's 1983 decision in National Audubon v. Superior Court, which explicitly discusses the transition.⁸ Regardless, the water rights granted by the modern Water Board have undergone an entirely different analysis than those granted by the early Water Board in its ministerial role, even though those same laws can now be applied to the older water rights.⁹ The pre-1983 permitted water rights have generally undergone much less scrutiny, and the Water Board and courts often failed to consider instream and other public values during proceedings in that pre-1914 era.¹⁰

Looking back across the history of California appropriative water rights, then, the rights fall into three tranches: a first tranche, those obtained with no oversight whatsoever before 1914; a second tranche, obtained with a merely ministerial Water Board review between 1914 and 1983, and a third tranche, modern rights granted after 1983. That is the first complication this article presents: a fuller appreciation of the changing review processes for water rights. And this really matters. In California, most agricultural and urban water use relies on first tranche rights and riparian rights, both of which have undergone minimal to no environmental review.¹¹ As early as 1900, "most of the largest rivers' normal flows were fully appropriated."¹² Clearly, first tranche water rights are important in California, but adding the second tranche of rights means that the vast majority of water rights in California were obtained with little to

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no real oversight, and minimal to no consideration of non-diversion public interests.¹³ Recognizing the three tranches provides a more accurate understanding of water regulation in this state.

Second, consider what this three-tranche view might mean for the strength of appropriative water rights. Certainly, the traditional view says first in time, first in right. But that is just the beginning. Three different factors introduce some wrinkles to the way that water rights behave in practice: difficulties in proof, modern environmental laws, and the twin specters of public trust and reasonable use.

As I explain below, the first tranche of rights, while first in time, also faces the most significant challenges of proof. Further, these rights were claimed with no regulatory oversight at all, and they ignore the public trust, which leaves them exposed to reductions by courts and the Water Board.¹⁴ In some ways, this makes these rights exceedingly precarious, no matter their age. The second tranche faces less of a proof challenge; they had at least a modicum of regulatory oversight, and often at least mentioned public trust interests, if not the doctrine itself.¹⁵ Nevertheless, these rights still generally failed to consider environmental requirements and only nodded to the public trust interests in passing. Finally, the third tranche of water rights is generally well documented, making proof less of an issue. These rights were granted only after some level of public trust and other environmental review, and although they often have terms that authorize continued adjustment by the Water Board, the Board has already weighed these rights against other demands for the water at least once. The challenges of first and second tranche rights—the problems of proof and the lack of real consideration of other interests—become vitally important when the rights come under scrutiny, perhaps through statutory adjudications, public trust analyses, curtailment actions, or disputes between rights holders. Under such scrutiny, a rights holder must show that they have a water right before the age of the right begins to matter. Old water rights are great, if you manage to keep them.

This article begins with a discussion of the problem of proving up a water right. Next it provides a brief history of the regulatory system around water rights, focused first on the role of the Water Board, second on the emergence of the modern environmental law framework, and third on the public trust and reasonable use doctrines. These three threads come together to illustrate the challenges facing water rights in the first and second tranche. Understanding the three water right tranches and their implications for the strength of water rights provides a better way to make sense of the practice of water law in California.

PROBLEMS OF PROOF

Proof issues plague older rights, particularly pre-1914 rights, both in court and in administrative hearings before the Water Board.¹⁶ The party asserting a water right generally bears the burden of proving every element of the right claims.¹⁷ Thus "an appropriator must establish by sufficient evidence the fact of appropriation and the quantity of water appropriated and that the water is being applied to reasonable and beneficial uses."¹⁸ For pre-1914 rights, this requires proof of (1) an intent to put the water to beneficial use; (2) an actual diversion sufficient to put the water to beneficial use; and (3) diligence in applying the water to beneficial use.¹⁹ In some cases, where appropriators rely on notice to establish their priority date, they must also prove when notice was posted or recorded.²⁰ Because "the scope of a pre-1914 claim is not determined by the amount claimed or the amount diverted, but by the amount actually used by the claimant [and] a claimant's use rights are limited to the season and even the time of day or week when the claimant actually used water,"²¹ a claimant required to show a right to their current water use based on a pre-1914 right must show that their historical predecessor actually used the water right in the manner they now claim.²² Moreover, depending on the context, the water user may be required to show that their use of the water has been continuous since it first began.²³

Senate Bill No. 389, now Water Code Section 1051, authorizes the Water Board to "Investigate and ascertain whether or not . . . any claimed riparian or appropriative right is valid under the laws of this state," to issue informational orders as part of that investigation, and then enjoin any diversions found to be unauthorized. This explicitly gives the Water Board investigative and adjudicative power over all California water rights,²⁴ which makes the proof issues for older water rights even more pressing. As the Water Board has noted, "it can be difficult to obtain evidence roughly 100 years after-the-fact that specific pre-1914 appropriative rights were diligently perfected and subsequently maintained through continuous use."²⁵ Old records of all kinds are often spotty and tremendously hard to access. In one case, in spite of three separate water right decisions in the early 20th century, none of the prior decisions were binding on the litigants, who had to dig deep into the historical record in an offer to determine their respective water rights.²⁶ Typical evidence might include

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the number of acres irrigated, the crops on those lands, the capacity and efficiency of the irrigation system, estimated monthly water use, land fallowing, old court or Water Board decisions, tax records, and a host of other evidence, often buried in county courthouses, county recorders' offices, or someone's dusty attic.²⁷ In short, as Berkeley Wheeler Water Institute Director Michael Kiparsky put it, "we simply don't know who can legally use water at a given time and place,"²⁸ and the evidence needed figure it out is often sketchy at best or missing entirely at worst.²⁹ Of course, this all gets harder every year—1914 was a long time ago.³⁰

In part due to these issues, "pre-1914 rights remain largely unverified and unquantified."³¹ Perhaps more importantly, water users attempting to prove their pre-1914 rights often fail to prove those claims in their entirety, and the record is replete with water users who lost significant portions of the rights they thought they had.³² Pre-1914 rights are often first in time, but focusing on their priority date to the exclusion of their evidentiary basis overestimates their likelihood of surviving challenges, especially when so many cannot be proven at all.

THE REGULATORY FRAMEWORK

Pre-1914 (first tranche)...