Tribal Beneficial Use Designations as a Catalyst for Reallocating Water in California
Publication year | 2024 |
Citation | Vol. 33 No. 1 |
Author | Written by Alina Werth |
Written by Alina Werth1
INTRODUCTION
In California, surface water provides approximately 60 percent of the state's agricultural, industrial, and municipal water demand.2 Surface water is also vital for the environment—it supports instream habitats for aquatic species and helps maintain adequate water quality levels in the state's streams, rivers, and lakes.3 This surface water, however, is overallocated.4 The amount of allowed water withdrawals exceeds the surface water that is available without extensive damage to ecosystems and other instream uses.5 Climate change will only further impact the timing and quantity of available surface water.6 In a future where less water will be available to meet the same or increased demand, moving water between users and protecting water for non-consumptive uses will become increasingly important.7 Market-based strategies, such as water markets, are proposed as an effective and efficient way to move water from low-value to high-value uses and will likely play an important role in the management of California's scarce surface water resources.8
At the same time, the current allocation of surface water in California is fraught with injustices. Surface water rights in California (i.e., the right to divert a certain amount of water from a lake, river, stream, or creek9) were first perfected in the late 1800s at the same time as the state-sponsored genocide of Native Americans.10 Indigenous peoples11 throughout California were forcibly dispossessed of their ancestral lands and denied access to important cultural and spiritual water bodies.12 As a result, today many Native American tribes and indigenous peoples lack access to culturally important water bodies, and many of these water bodies are no longer able to support traditional uses.13 Understanding the historical context in which water rights were developed is important for contextualizing the current allocation of and access to water, especially as California grapples with how its water rights regime can equitably handle the strain of climate-induced droughts.
This Note offers a potential strategy for beginning to rectify the unjust allocation of water in California. It focuses on working within the current water rights regime to reallocate water outside of a market system. This is an important first step because purely market-based14 reallocations of water will only serve to further perpetuate existing inequities.15 Consequently, the strategy proposed by this Note will also help to ensure that water markets can play a role in the management of California's scarce water resources without further entrenching or perpetuating historical injustices.
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This Note argues that if it were not for the forced expulsion and genocide of Native Americans throughout California during the late 1800's, tribes would have access to their ancestral homelands and water bodies and would likely hold substantial water rights under the state's riparian and appropriative water rights regime. Part II of this Note will provide a background on the legal regime of water rights and water quality in California. It will also provide a brief history of the state-sponsored genocide of Native Americans in California and the dispossession of their homelands and outline current tribal claims to water rights. Part III of this Note will outline a three-part argument. First, historical injustices are directly responsible for the current inequities faced by indigenous communities in California. Second, non-market reallocation of water is an important pre-requisite before market-based mechanisms can move water flexibly, efficiently, and equitably between users. And finally, the State Water Resources Control Board ("the Board") has the authority to curtail water rights during times of shortage and when water is being used unreasonably. Part IV of this Note offers a partial solution for reallocating water by using Tribal Beneficial Uses designations for water bodies to catalyze the curtailment of water rights to achieve water quality objectives. Such a reduction will reallocate water from riparian and appropriative rights to in-stream uses to protect water quality levels and ensure traditional tribal cultural uses of water bodies are protected.
BACKGROUND
The Background is broken into four sections. First, it will provide a description of the legal framework for water rights in California, which includes riparian and appropriative rights, and identify state constitutional limitations on water use.16 Next, it will provide a summary of California's water quality regulation. It will then provide a brief history of the treatment of Indigenous communities during the late 1800s when water rights in California were first established. Finally, it will outline how tribes can and do assert claims to water rights in California.
WATER RIGHTS IN CALIFORNIA: A DUAL SYSTEM OF RIPARIAN AND APPROPRIATIVE RIGHTS
Generally, a water right confers an usufructuary right to beneficially use a reasonable amount of water. A usufructuary right confers the right to use, rather than own, a certain amount of water. Riparian water rights have a common law origin and represent the right of a property owner adjacent to a body of water (e.g., stream, river, etc.) to divert a reasonable amount of water for beneficial use on their property.17 As such, a riparian right attaches to the land and is thought of as "one of the 'bundle of sticks' that defines land ownership under the common law."18 A riparian right does not expire and can be claimed at any point in time. If there is insufficient water in a system, all riparian users must reduce their water use proportionally.19 In the California Supreme Court case Lux v. Haggin, the court recognized the common law right of riparian landowners to divert water from streams adjacent to their property.20
Appropriative water rights in California, on the other hand, grew out of a need to use water on lands not adjacent to a body of water and divert water from land not owned by the appropriator.21 Appropriative rights are subject to the "first in time, first in right" doctrine, meaning that when there is not enough water to satisfy all appropriative rights, the most junior rights (i.e., the most recently perfected rights) must curtail their water use first.22 An appropriative right allows an appropriator to divert a specific amount of water from a specific location to be put to a specific beneficial use.23 In relation to water rights, the beneficial use is the "useful purpose to which water is applied" and includes domestic, irrigation, power generation, municipal and industrial uses.24 California also recognizes the use of water in a stream or river to support the environment as a beneficial use,25 but does not allow water rights to protect these instream uses, except in narrow circumstances based on water transfers and dedications.26 Appropriative rights are subject to the "use it or lose it" doctrine. If an appropriator fails to divert and beneficially use water over a statutory period, they lose their right, including the priority date.27 Because of the "first in time" doctrine, the priority date of an appropriative right is important and makes older water rights more valuable and secure.28
The difference between riparian and appropriative rights becomes important when there is not enough water in a system to satisfy the needs of all users holding a water right. While riparian rights holders must reduce their use proportionally amongst other riparian users, they generally have priority over even the most senior appropriative rights.29 Thus, the 'rule of priority' could result in appropriators not being able to divert any water when supply is short.30
There are two tiers of appropriative water rights in California. The Board, the state agency responsible for managing California's water resources, was created in 1913,31 so there was not a permitting system for the appropriation of water in California until 1914.32
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Consequently, appropriative rights established prior to 1914 do not require a permit while those established after December 19, 1914 must be permitted by the Board.33 The latter are subject to a "comprehensive regulatory scheme . . . to safeguard the scarce resources of the state."34 While riparian and pre-1914 water rights holders do not require a permit to exercise their rights, they are still subject to certain regulations, including reasonable and beneficial use requirements.
The Board's initial role was purely ministerial, meaning that it granted a permit to divert water if it was for a beneficial use and there were no competing downstream uses (i.e., whether unappropriated water was available).35 In 1928, Article X, Section 2 was added to California's Constitution, which prevents "the waste or unreasonable use or unreasonable method of use of water."36 This enactment "radically altered water law in California and led to an expansion of the powers of the Board."37 In 1943, a similar provision was added to California's water code limiting the diversion of surface water "to such water as shall be reasonably required for the beneficial use to be served" and specified that the right to water "does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water."38 These limitations on the use of water give the Board authority to consider the reasonableness of water use in the context of granting appropriative permits.39 The reasonable use doctrine "ensure[s] that the state's water resources are used in ways that serve the public interest, not just to benefit senior water right holders."40 The Board is responsible for enforcing reasonable use policies41 and state courts and the California Department of Water Resources also share jurisdiction to enforce Article X, Section 2.42 These reasonable use...
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