California’s historic water rights come under new scrutiny, and that is a good thing | Opinion
Over the last few years, we have heard plenty of disturbing stories about wells going dry in the small, poor towns across the San Joaquin Valley, such as East Porterville and East Orosi.
In 2012, California reacted by declaring access to water to be a human right, but with little money attached to stop what was now a human-rights violation. More recently, alarms have been ringing about the state seeking to abolish its longstanding system of water rights. This concern is overblown, at least at the moment, and a little refining of the state water rights system might make it easier to supply poor, rural communities with some water.
The 2012 law is little more than a values statement, enacted after a rash of drying-up domestic wells made international headlines. The nation’s richest state and the world’s fifth-largest economy has thousands of residents without water in their homes. It’s a serious problem. In 2021, the state reported that about 620 public water systems were at-risk of being unable to provide safe and affordable drinking water, and about 80,000 domestic water wells were at high-risk of exceeding healthy drinking water standards due to groundwater contamination.
Adding insult to injury, many of these wells have now gone dry. According to California’s dry well reporting system (a voluntary system almost certainly undercounting the problem’s severity), in Fresno, Kings, Madera, Merced, and Tulare counties, 1,837 wells are completely dry or operating on some “interim” supply system.
Our doctrine of appropriative and riparian water rights was enacted in the early 1850s and is literally about who has the right to use river water in California. Whomever claims water for a beneficial and reasonable use (usually something profit-making) first gets that entire amount in perpetuity, even if it means others claiming water from the same source later in time get nothing during a drought.
Claiming water from a river through this legal system, often simply described as “first in time, first in right,” is considered a private property right. The state cannot simply take water from these claimants to give it to those who need it to live. At best, the state might condemn private water rights, but this just leads to long litigation and a lot of bad will.
Herein lies the problem. Given that for all intents and purposes, all the state’s surface water is claimed by somebody as a private property right, where will California find the water it needs to fulfill its human-rights obligation by providing it to people with dry wells? What will it do? What can it do?
The Legislature and the State Water Resources Control Board (which oversees water rights) are asking these questions. Unfortunately, some journalists and activists trying to connect the dots between these questions and recent bills in the Legislature have concluded that pending legislation like AB 1337 and SB 389 are about abolishing the water rights system. This is hyperbole. At best, through these bills, should they be enacted, the state is simply trying to tighten up enforcement of its existing water-rights system. That’s a good thing.
California’s water rights documenting system was created in 1914, decades after enacting its water rights laws, so many old, senior claims are not particularly well documented. It means that some water users might claim to have pre-1914 rights when they don’t, or may exaggerate how much water they can claim simply because poor documentation makes it impossible for California to prove otherwise.
It is a very delicate matter. It’s not fair to accuse any pre-1914 water rights holder of lying about their legal water allotment without proof, but if California’s water regulators can get a clearer accounting of who really has rights to how much water and identify fraud, this might shake loose additional water the state can claim for its own and redirect to those who need it for survival, fulfilling its human-rights obligation.
Another idea is for the state to purchase senior water rights, even those where there is no clear proof of ownership. We spend billions building water infrastructure that moves the water claimed under the water-rights system. We could also spend a few million to acquire water rights, and therefore the right to use some water, without seizing it through laws like the Central Valley Project Improvement Act or the court decisions that shut down pumping for the big irrigation projects.
Properly accounting for the water appropriated through the water-rights system and purchasing additional rights might allow California to supply water to those whose wells have run dry, helping California to meaningfully fulfill the goal of the right to water for all its citizens without depriving individuals of their duly acquired water rights.
Thomas Holyoke is professor of political science at California State University, Fresno. Cordie Qualle is a lecturer in civil and geomatics engineering at California State University, Fresno. Laura Ramos is interim director of research and education at the California Water Institute at California State University, Fresno.
