Mushrooming population, developers’ zeal, pressure for more housing, agricultural subsidies, pesticides, and other forms of pollution only partially explain the persistence of environmentally destructive water practices. The entire body of water law itself has been—and remains—a major culprit because of flawed statutes and legal principles out of step with the times. Also behind the confusion is the badly fragmented water management system that, along with the patchwork of laws, has emerged from the California cauldron of legislative and court battles over a century and a half.
Typical is the status of groundwater which is of crucial importance to the ecological and economic health of California. The state’s groundwater reserves are enormous, although the usable capacity is less than half that amount because of quality considerations and the cost of extraction. Underground supplies presently account for about 30% of the water used in the state and much more than that amount during drought periods, Despite the immensity of groundwater reserves, the volume extracted greatly exceeds the rate of natural replenishment during dry years and even in normal years exceeds that rate with a considerably greater overdraft for aquifers in highly developed urban and agricultural areas. Careful management to control overdrafts is a self-evident need, but the reality is that groundwater has seldom been subject to meaningful management and remains at the whim of contradictory laws.
A fundamental problem is that the law has traditionally distinguished groundwater from surface water by holding that the paramount right to subterranean supplies belongs to owners of the overlying land. This is a principle, as will be recalled, found in Hispanic practice, though in American jurisprudence it is traceable to the common law and the lingering power of the Blackstonian notion that land ownership carries with it dominion over a wedge extending from the earth’s center into space. The principle remained adequate so long as settlers focused their energies on the more easily acquired surface water.
By the turn of the twentieth century, however, with the spread of powerful electricity and gasoline- driven pumps and increased, frequently fierce, competition among landowners claiming rights to the same aquifer, the need for new guidelines became obvious.
The state supreme court responded in 1903 with the “correlative” rights doctrine. That rule held that if there were multiple owners above an aquifer, each possessed a “correlative” or reciprocal right to a reasonable volume of water. Groundwater not needed by overlying landowners, and hence considered surplus, could be acquired by others through the doctrine of prior appropriation: first-come, first served. It also could be acquired by “prescription”— that is, by individuals who went unchallenged in taking more than their correlative share or in appropriating nonsurplus subterranean water. Thus, groundwater became subject to correlative, appropriative, and prescriptive rights, a circumstance that led to a legal free-for-all resulting in unchecked pumping and overdrafted aquifers.
Nearly a half century later, the state supreme court in 1949 sought to inject order into a patently destructive situation by creating the doctrine of “mutual prescription.” This principle awarded prescriptive rights to the users of an overdrafted aquifer and established a formula for determining the quantity of each party’s right. That formula called for determining each user’s highest five years of pumping and then reducing proportionately the uses until the total did not exceed the safe yield of the aquifer.
The 1949 decision, rather than bringing improvement, sparked a rush to the pumphouse as people sought to set their uses at as high an average as possible. Waste, environmental degradation, and legal conflict accelerated, especially in densely populated and rapidly growing southern California, where communities overdrew the resource to the injury of everyone. In 1951 state lawmakers sought to lessen the pressure for uncontrolled pumping by permitting southern Californians to rely on alternative surface supplies without losing their unused groundwater rights.
Two years later the legislature offered additional relief to the southland by vesting the state Water Resources Board with authority to obtain injunctions against southern California pumpers whose actions threatened to destroy aquifers through intrusion of ocean water.
In August 2000, the California Supreme Court hinted that the judiciary has the authority to impose order on the chaotic groundwater situation. That issue was not directly before the court so it carried no legal weight, but they suggested a course of action of considerable significance: “If Californians expect to harmonize water shortages with a fair allocation of future use, courts should have some discretion to limit the future of groundwater use of an overlying owner … and reduce to a reasonable level the amount the overlying user takes from an Overdrafted basin.”
Despite significant progress in water management in the Santa Clara Valley and in parts of southern California, the issue remained grave virtually everywhere around the state reached crisis stage in the San Joaquin Valley. There planning is in shambles; water is allocated on the basis of location rather than need, and overdrawn basins in many locales frequently result in land subsidence so serious that aquifers collapse and cannot be refilled. A ballot initiative in 1982 was the last major attempt to bring order to this sad chaos, but it failed primarily because of farmer opposition.
The problem remains essentially as described more than two decades ago by a Governor’s Commission to Review California Water Rights Law: “California’s groundwater is usually available to any pumper, public or private, who wants to extract it, regardless of the impact of extraction on neighboring groundwater pumpers or on the general community.”
Those extractions, short of reform or a major influx of new water, will inevitably drop water levels to a point where pumping is economically impossible, sediment is too high, or will exhaust the aquifers altogether. CALFED sought reform in a plan that it released in mid-2000, calling for basinwide management of groundwater and elimination of the current chaotic and environmentally destructive practice of management by numerous local water districts and agencies—a practice that has meant no management at all. Many farmers called for all-out war against the state legislation required to bring about this change.
Other flaws derive from such legal uncertainties as the exact scope of the rights claimed by appropriators and riparian users. In 1914 the state for the first time required all new appropriators on a stream to obtain a permit for a specific volume of water. Before that, many rights went unrecorded and a significant number—perhaps a quarter of the state’s annual water demand—remain that way. Similarly troublesome is the indeterminate quantity of most riparian rights. Such uncertainties encourage costly litigation, frustrate planning, and undermine attempts at efficient and wise water use. Another unfortunate legacy of riparianism is the rigid requirement that water be used only on lands immediately beside streams and lakes, thus preventing its reassignment to nonriparian areas where the need may be greater.
The state constitutional amendment of 1928 checked riparian users (and appropriators as well) by mandating that all uses be “reasonable,” but, not surprisingly, that action introduced another element of legal uncertainty by prompting debate over the meaning of reasonable. The courts have eliminated many of the grosser abuses, and the legislature took some important steps toward reform.
In 1979, it qualified the “use it or lose it” principle of appropriation law by stipulating that rights to water unused because of conservation would not be lost. In other words, if a person achieved the same goal using less water—for example, by installing drip irrigation technology—the right to the saved water was not diminished. The following year lawmakers again encouraged conservation efforts by granting rights to reclaimed wastewater to the person salvaging the water. While impressive, such advances have been few, slow in coming, and deceptive, especially where the availability of cheap subsidized water has discouraged conservation efforts. Overall, legal reform has been fitful, piecemeal, incomplete and frequently inconclusive.
Another legal uncertainty lies in the politically sensitive “area of origin” statutes that protect counties and other locales from exportation of their water. The uncertainty derives largely from the laws never having been exercised to recover a single drop of water.
Still, the statutes possess great political significance, and two of them were invoked in August 2000 by the Westlands Water District against the Central Valley Project.
There are four such state laws, the earliest coming in 1931 in response to the state’s filings on unappropriated water for its anticipated statewide water project. Alarm from those fearing an Owens Valley-like raid caused the legislature to prohibit depriving a “county in which the water … originates of any such water necessary for [its] development.” This is one of the laws that Westlands has invoked, but there is widespread misapprehension that it is all encompassing. In fact, it actually has narrow applicability. It cannot be used against earlier transfers, like those affecting Hetch Hetchy, Mono Basin, and the Owens Valley, and it can be invoked only against water appropriations for the 1931 State Water Plan, some of which were assigned two years later to the Reclamation Bureau for the Central Valley Project and the remainder going to the eventual State Water Project.
Even then, its protection is not absolute. It is applicable to the Central Valley Project but only to the extent permitted by federal law, and that law can always be changed to deny its applicability.
As for the State Water Project, the 1959 Burns-Porter Act stipulated that the state’s water contracts could not be abrogated while the bonds remained outstanding. The bonds will not terminate until 2035 or when they are paid off, now projected to be around 2029. Another limitation on the county-of-origin statute is the state’s power of eminent domain. “If public necessity requires water for southern counties,” note legal scholars Harold E. Rogers and Alan H. Nichols, “the state as a last resort can always override private northern water rights by condemnation.” Among the reasons that the county-of-origin statute has not been tested is that so far there has been little or no need to do so. When the Department of Water Resources built Oroville Dam and initiated the State Water Project, it signed contracts for 800,000 acre-feet with the prior appropriators on the Feather River in order to protect their rights. Moreover, the department has established the policy of selling water to area-of-origin residents who desire it.
A second law similar to the county-of-origin statute and also being invoked by Westlands is the “watershed protection” provision in the 1933 Central Valley Project Act. That provision, which applies only to appropriations for the Central Valley Project, states that a “watershed or area… immediately adjacent thereto [possesses] … the prior right to all of the water reasonably required to adequately supply the beneficial needs of the watershed … or any of the inhabitants.”
Besides being subject to veto by federal legislation, the law offers the potential for disputes over such vague language as the “area immediately adjacent” to the watershed of origin.
More far-reaching were 1984 state laws aimed at so-called protected areas—a vast collection of locales that included Mono Basin, all the lands drained by the Sacramento, San Joaquin, Truckee, Car- son, Walker, Calaveras, and Mokelumne rivers; and all the north- coast rivers from the Russian to the Oregon border. The legislation authorized residents of these places to purchase water from developers “intending to export water for use outside the protected area.” Though wide in scope, these laws, like earlier statutes, did not apply to any previous diversions. Moreover, they did not provide the stronger protection against dams accorded to those rivers (or portions of them) in the federal wild and scenic system. Nonetheless, close observers are convinced that this legislation and the other untested statutes will be at the center of future donnybrooks as the competition for water intensifies.
Also uncertain and a source of great anxiety among California Water managers is the extent of federal water rights. They result from the government’s ownership of national forests, parks, monuments, other public lands, and especially Indian reservations. The US. Supreme Court, in a series of cases, has held that the government possesses rights to enough water to fulfill the primary purpose for which these lands were set aside. The issue of Indian rights is particularly important to Californians not only because of the large number of reservations in the state (all are small but most are in arid areas where water is crucial), but also because many of the reservations (including the nation’s largest, the Navajo) are in the Colorado River Basin where California has a vital stake. Nearly a century ago the U.S. Supreme Court held that Indian reservations possessed a special water right not lost through nonuse. In 1963 the court pegged the extent of the Indian right as the water needed to develop “all the practicably irrigable acreage” on a reservation.
Since agriculture is the heaviest consumer of water, the decision sent shock waves throughout the state and the West. The ultimate meaning of the decision for water users—Indian and non-Indian—is as yet uncertain because of lawsuits under way, planned, and possible, but it is patently clear that Indians can no longer be ignored in water planning.
(‘The Great Thirst,’ by Norris Hundley, 2001)
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