Water & Justice
Illustration of a gold mining claim in the Sierra Nevada.
To mobilize water for human use, our society grants property rights to use water. No one is allowed to hoard or possess it because of its intrinsic properties and its necessity to all life and economic activity. The rights to use water also carry obligations to other water right holders, particularly not to harm the rights of other water right holders and not to harm the environment.
It is said by water lawyers, that water rights are social policy in times of drought.
In California, these are the more important types of water rights:
(You may use this link to subscribe to email notices from the State Board to stay abreast of Board business. Just go to the bottom of the Water Rights Info page where you can see in their left margin an "Email Subscriptions" link.)
Reserved Rights of California Indian Tribes
Through case law (that is, litigation), the California Supreme Court established that riparian right holders have priority for diverting and using water over most (if not all) appropriative right holders. Appropriators may divert only what is surplus to what riparian right holders divert from a stream.
Among appropriators in California, those with pre-1914 dates for filing their water claims have earliest priority each year to divert and use water. Their rights are not subject to review by the State Water Board. Appropriators whose rights come after 1914 have permits issued by the State of California that are subject to approval and review by the State Water Board. Actions before the State Water Board most commonly affect these water right holders. Until recently (see our analysis of the Delta water legislation and the 2010 water bond, coming soon!), the State Water Board has little, if any, jurisdiction over the water rights of riparians or pre-1914 appropriators.
In many California watersheds, however, few right holders know exactly what they are entitled to. This can give rise to conflict and litigation between neighbors or large water users seeking water from the same watershed. In some rivers and streams and groundwater basins, conflict has been resolved through "adjudication," a process by which a judge hears all available evidence and then issues a decision dividing the waters between the water right holders in the watershed or groundwater basin.
While usually effective in resolving conflict, adjudication of a water body is expensive and can take many years.
"Paper water" is the idea that government has promised more in rights to water than there is water that flows in Nature's rivers and streams in California. There is far more water "on paper" than there is in California's water ways.
In November 1928, California voters approved Proposition 7, amending the California Constitution to prohibit waste and unreasonable use and diversion, and method of diversion of water in California. Prop 7 passed by over a 3 to 1 margin among those voting. It won in every county of the state. It came about in part because of drought conditions that affected California during the 1920s, and because of major California supreme court decisions affecting water rights (the Antioch case and the Herminghaus case).
NEW! See our Delta Public Trust Lawsuit Press Room.
SEC. 2. It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water. Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which the owner's land is riparian under reasonable methods of diversion and use, or as depriving any appropriator of water to which the appropriator is lawfully entitled.
This section shall be self-executing, and the Legislature may also enact laws in the furtherance of the policy in this section contained.
Source: http://www.leginfo.ca.gov/cgi-bin/waisgate?waisdocid=7817035794+24+0+0&waisaction=retrieve, accessed 5 October 2009.
Friant Dam looms along the San Joaquin River northeast of Fresno.
California's state capitol
C-WIN exists to enforce existing water and environmental laws California already has on the books. If the laws we have were enforced properly, we believe many problems vexing the Delta and other places in California could be solved—and the sooner we get on it the better!
We recognize that there may be need for new laws concerning water development, water rights, and other areas of California's waterscape. But with the State Water Resources Control Board (the state's primary water regulator) woefully underfunded and understaffed, and its appointive members politically compromised and all-too-prone to avoiding tough decisions, C-WIN is not convinced adding new laws and adding a Delta Stewardship Council will enable California to govern its water resources better than it now does.
“By the law of nature these things are common to mankind – the air, running water, the sea, and consequently the sh
Shasta Reservoir, a key source of water for water transfers south of the Delta