INTRODUCTION II. CALIFORNIA WATER LAW A. Riparianism B. Prior-Appropriation III. CALIFORNIA'S APPROACHES TO EFFICIENT WATER USE IV. INTRODUCTION TO A TECHNOLOGY-BASED APPROACH A. Clean Water Act Approach B. Clean Air Act Approach C. The Clean Air Act Was Successful V. TECHNOLOGY-BASED STANDARDS AS APPLIED TO WATER CONSERVATION VI. IMPLEMENTING AND ENFORCING THE STANDARDS A. Implementation B. Enforcement VII. OPPOSITION TO A TECHNOLOGY-BASED STANDARD VIII. CONCLUSION I.
In the coming decades, as already seen today, global climate change will impact hydrologic balances and water availability. (1) Among the scientific community, "[t]here is a relatively firm consensus that arid and semiarid regions risk the net loss of stream runoff as winter snowpack diminishes and spring and summer evaporation increases" each year. (2) As water becomes increasingly scarce, water use and management will have to adapt to these changing conditions.
California water law is based on a combination of riparianism and prior-appropriation. These two doctrines assume regional water balances will remain relatively constant over time, but such an assumption is no longer viable. (3) As water becomes less available, water managers will have to change their assumptions and policies to better meet the needs of their water users. "conflicts between senior users, junior users, and future claimants, as well as between consumptive and non-consumptive uses (such as environmental protection), will only increase." (4) In an effort to resolve these conflicts in uses and users, state policy must actively find new conservation methods. To date, most water conservation policy in California is voluntary, and the combination of riparianism and prior-appropriation does little to encourage conservation.
This paper argues that California should take a new approach to water conservation based on the command-and-control pollution laws of the 1970s. California should adopt a technology-based approach similar to the clean Air Act ("CAA") and Clean Water Act ("CWA") to set new standards for water permits. A technology-based approach would require users to either adopt more efficient technology or use less water, thereby increasing conservation. It is also a flexible approach that typically considers cost-benefit analysis at some point in the process for determining the standards.
The first section of this paper describes how California's system of riparianism and prior-appropriation functions, and explains why the system does not encourage conservation. The paper then looks at some of the conservation methods that California employs, ultimately concluding that those conservation policies are not adequate to deal with increasing water scarcity. The next section describes how technology-based standards work and how a technology-based standard can be applied to water conservation. Lastly, this paper addresses how a technology-based standard could be implemented and enforced, as well as responds to the potential opposition that a bill or regulation would face.
California Water Law
In California, riparian water rights "entitle owners of land bordering a stream to receive the natural flow of the stream undiminished except by the common right of all to receive a reasonable share of the water." (5) "Permissible uses of water were essentially limited to fulfilling domestic needs, such as withdrawing sufficient water for drinking, bathing, and watering animals." (6) States adopted the riparian "natural flow doctrine" from England, the purpose of which was to allow all landowners along a river or lake a sufficient amount of water for their daily needs. (7) The "natural flow doctrine" thereby limited use of water to ensure that each landowner along the river would receive a "reasonable" amount of water.
In England, "[u]nder the natural flow doctrine, there was no need for a mechanism to determine whether competing uses were incompatible because uses were severely limited in the first place." (8) Industries like mining, which require large amounts of water, were not yet taking place. Furthermore, England is a temperate region with an adequate water supply. (9) In the United States, as settlers started moving out West, it became abundantly clear that the "natural flow doctrine" would require serious alterations. In the early history of the United States, the federal government had an economic policy that encouraged development of the abundant natural resources available. The "natural flow doctrine" was meant to supply an adequate amount of water to landowners for domestic needs, but riparian landowners needed more water to develop those abundant natural resources for their economic enterprises. (10)
The natural flow doctrine "was a serious impediment to the emerging economic reality as more sawmills, granaries, tanneries, and irrigated agriculture started dominating the scenery." (11) As industries emerged, the "natural flow doctrine" seemed incompatible with this economic reality, and judges limited the common law of riparianism to "reasonable use." (12) A "reasonable use" of water means that the amount of water supplied to a user is limited to an amount that is "reasonable" for a particular use, and some uses are considered more "reasonable" than others. Under riparian rights, conflicts between incompatible consumptive uses of water are resolved by eliminating or curtailing such uses which "unreasonably harm" other uses. (13) The battle over water rights among users depends on whose use is the most "reasonable."
One of the major problems with the "reasonable use" doctrine is that it does not encourage conservation; rather, it encourages use so long as it is "reasonable." Thus, riparian landowners have an incentive to find more "reasonable uses" of their water instead of limiting their water consumption to the benefit of downstream users or in-stream use. Water users who can argue that their uses are the most "reasonable" get the most water. This violates the "natural flow doctrine" in the sense that all common users should receive the natural flow of the river, except that the flow may be diminished by common "reasonable use." If upstream water users can find more "reasonable uses" of water, there is grave potential for harming downstream users, especially in the West where water is not abundant.
Looking at settlements in the West, the traditional riparian right to demand the unimpeded and unchanged natural flow of streams seemed ill-adapted for the uses of water that settlers were undertaking. (14) Such rights would have made it nearly impossible for Western settlers to mine or irrigate non-riparian lands while water flowed virtually unused and unusable across riparian land. (15)
In the arid West of the United States, water law took a different turn when settlers started discovering gold. California adopted the first dual water system, which combined both riparian rights and prior-appropriation. California created the dual system as a result of a sporadic pattern of settlement, where there was no real local law, and the settlers completely rejected riparian rights. (16) The "forty-niners" were unwilling to patiently gain title to riparian lands for mining, so they simply sought gold as trespassers and took what they needed. (17) Thus came the doctrine of prior-appropriation: "first in time, first in right." (18) Those who claim the water first have the senior right and all subsequent claimants have junior rights. If there is a shortage of water, seniors get their water first, and once the senior rights are satisfied, juniors and new users are granted their water rights.
It should come as no surprise that the prior-appropriation doctrine led to many disputes, especially with riparian landowners. In order to deal with these two competing common legal doctrines, the California Supreme Court decided in 1886 that a land patent from the federal government carried with it riparian rights to water abutting the land, subject to riparian appropriations perfected before the future riparian made a lawful entry to acquire title. (19) Such riparian rights would be superior to any later appropriations made after the riparian gained title. (20) After Lux, the dual system of water law was born in California, which recognized both appropriative rights and riparian rights. (21)
Prior-appropriation is limited to continuous beneficial use without waste. (22) Unused water, or water that is used wastefully, is no longer part of the user's water right and becomes available to junior users or those downstream. (23) That is, water not used beneficially is subject to the "call of the river." Nonuse results in forfeiture, and wasteful use is prohibited. The elements of prior-appropriation discourage conservation and encourage inefficient use of water. Under prior-appropriation, when an appropriator uses water more efficiently, and thus requires less water, she does not get to keep the water that she saves. The senior appropriator therefore has no incentive to save water because she would forfeit the water she saved.
The "beneficial use" doctrine of prior-appropriation has two main elements: (1) the type of use, and (2) the amount of water to satisfy that use. (24) If a use is beneficial but the water is used wastefully, the appropriator loses her rights. There are many uses considered beneficial, such as domestic, irrigation, farming, mining, industrial, and municipal. More recently, nonconsumptive beneficial uses such as in-stream flow for fishing, wildlife habitat protection, and pollution abatement have become more prevalent. (25) In addition, as values change and scientific knowledge pertaining to water usage increases, particular practices that may not have raised an eyebrow in earlier times have been revealed as non-beneficial when viewed from a more contemporary perspective. (26)
Beneficial use requires actual, active use...