Water is a commodity that many of us take for granted. It is a necessity of life, yet we turn on the faucet and expect to see plentiful, clean water, not worrying about the origin of the water nor the basis of right under which the water was procured. When an adequate supply exists, the law of water rights is of very little interest to most people. The law of water rights gains critical importance, however, when demand threatens to outstrip supply, as is the case in California and many parts of the world now.

Water rights law is a multi-disciplinary practice area which calls on expertise in areas such as history, geography, hydrology, biology, and engineering. In order to understand water rights, a familiarity with the history of both California and the West is essential. The West, for purposes of this article, means west of the 100th meridian. From that line westward, rainfall drops to less than twenty inches per year on average, and is too little to sustain key domestic crops.

It is appropriate that Sacramento is California’s water rights capital, since not only is Sacramento the capital of California, a semi-arid state, but water rights law developed in great part to resolve water disputes among local mining interests. Gold was first discovered in 1848 by James Marshall near Sacramento in the mill-race of John Sutter’s sawmill on the South Fork of the American River. As more miners poured into the state, water was needed on parcels not immediately adjacent to a water body. This need was not only for mining purposes, but also for the domestic needs of the populations that supported the mining. Inevitably, conflicts erupted over water rights. Irwin v. Phillips, 5 Cal. 140 (1855), a dispute between two miners occupying public land, was the first case in which the California Court’s decision rested upon the maxim of equity, qui prior est in tempore, totior est in jure (i.e., first in time, first in right). This became known as the prior appropriation doctrine, basically adoption of the rationale that miners should “be protected in their possession of selected locations, and the rights of those who, by appropriation have taken the waters from their natural beds, and by costly artificial works have conducted them for miles over mountains and ravines.”

From the discovery of gold until 1886, California recognized only the prior appropriation doctrine. However, in 1886, a sharply divided California Supreme Court decided Lux v. Haggin, 69 Cal. 255, a conflict between two landowners in the San Joaquin Valley. One of the landowners claimed his water rights under the prior appropriation doctrine while the other claimed under the riparian doctrine, and for the first time the court recognized the doctrine of riparian rights. Riparian rights were recognized notwithstanding the fact that riparian and appropriative rights are based on completely disparate principles. In any event, California became a “dual doctrine” state, juggling two incompatible doctrines. Unlike prior appropriation rights, riparian rights attach only to the smallest parcel in the chain of title which is contiguous to the source stream, can only be used on that portion of the parcel which is within the watershed of the source, are not quantified, and are not lost by non-use.

In 1913, the California legislature adopted the Water Commission Act, the predecessor to the current Water Code. This legislation created an administrative agency (the predecessor to the current State Water Resources Control Board (SWRCB)) to allocate the state’s unappropriated water through a permit system. Until this time, no approval was necessary to divert water from a stream. The Act declared that all unallocated water belonged to the people of the state, and that the right to use the unallocated water could only be acquired through the new permit process. Before a permit could be issued, the agency required an opportunity for interested persons to protest, an investigation of the application by the agency, and a finding that unappropriated water is available. The Act also required permittees to exercise due diligence in developing water rights in order to prevent acquisition of water rights for speculative purposes. Water had to be put to reasonable and beneficial use. A subsequent amendment to the state constitution ensured that the reasonable and beneficial use provisions applied to all water rights, including riparian rights.

There are now three main categories of surface water rights: riparian rights, permitted appropriative rights, and pre-1914 rights. Water rights established prior to December 19, 1914 (the date the Water Commission Act became effective) and continually used since that time are referred to as pre-1914 appropriative rights.

In addition to surface water, California meets a substantial percentage of its needs by pumping groundwater. Unlike surface water, there is no state permit system governing groundwater extractions. Instead, groundwater law has elements of both riparian and appropriative rights. Groundwater extractions, like riparian rights, which are used on specified lands (in this case overlying land) have priority over those extractions that are used on non-overlying land. Also like riparian rights, all uses on overlying lands have correlative rights and must share the resource with other overlying users, and the non-use of groundwater does not result in forfeiture of the right. Groundwater extractions which are not used on overlying land, and extractions by municipalities, are considered “appropriations” and are prioritized based on the appropriation doctrine.

Nearly all groundwater in California is considered to be “percolating groundwater.” In very limited instances, however, groundwater is characterized as water in a “subterranean stream flowing through a known and definite channel.” Subterranean streamflow is treated as surface water, and the state requires that use of that water be based on either a permit, riparian, or pre-1914 right. Water pumped from a groundwater well has a rebuttable presumption that it is percolating groundwater. (The existence of a subterranean stream is a factual question which has generated significant interest before the SWRCB.)

Policy issues concerning water development must also be considered to understand water rights as a whole. In 1878, John Wesley Powell, who led the first exploration of the upper Colorado River and the Grand Canyon, published a government report on “the arid region,” which he defined as the territory west of the hundredth meridian. Powell recommended sweeping changes in the public land laws to allow small irrigated farms and livestock ranches, but also to encourage a less individualistic way of living on the land. Americans must work together, he argued, if they wanted to see the West support secure, prosperous homes, and they must always worry about the threat of monopoly over the vital natural resource of water. Powell’s efforts are memorialized in the huge public works projects which led to the “reclamation” of the West and the enormous lake which bears his name.

One issue which haunts California is whether water development encourages growth or whether growth demands water. In the 1974 film Chinatown, Los Angeles private investigator J.J. Gittes (Jack Nicholson) asks visionary tycoon Noah Cross (John Huston) why Cross is scheming to steal upstate farmers’ water and pipe it to Los Angeles. Cross replies, “the future, Mr. Gittes, the future.” It seems fairly clear that the intent of the federal government and others was to induce growth in the West with the introduction of irrigation and development of water supplies to encourage the initiation of new communities. Recently, it seems to be the other way around with growth creating demand. The Department of Water Resources acknowledges a deficiency in current California water supply of 1.6 million acre-feet (MAF) in an average year and up to 5.1 MAF in a drought year. (An acre-foot is a common measurement for water and is an amount equal to one acre in surface area, one foot in depth. One acre-foot is approximately 326,000 gallons of water, enough for one to two families for a year.) By 2020, California’s shortfall is anticipated to grow to 2.4 and 6.2 MAF in average and drought years, respectively. Legislation which became effective in 2002 (SB 610 and SB 221) requires greater consideration of water supply issues in environmental review processes and proof of water rights before developments greater than 500 units in size can be built.

Colorado River water development within California adds interstate water issues to the mix. The Colorado River originates in Colorado but receives tributary waters from Wyoming, Colorado, Utah, Nevada, New Mexico and Arizona during its 1300 mile journey which eventually ends in the Gulf of Mexico. All seven of these states, including California, follow the prior appropriation doctrine. This fact was critically important, since California began to develop at a pace significantly faster than any of the other six states. California irrigators in southern California made plans and began diverting water from the Colorado River in the second half of the 1800s. The other states became concerned that, if California developed uses for the river water, future appropriation of Colorado River water by anyone else could be precluded by California’s prior appropriations. Quantification between the states was a long and arduous process. Because rights to the Colorado River involved interstate issues, Congress had to step in. In 1922, the Colorado River Compact apportioned the water between the upper basin states (Wyoming, Colorado, Utah and New Mexico) and the lower basin states, granting 7.5 million acre-feet to each. In 1928, Congress passed the Boulder Canyon Project Act which authorized construction of Hoover Dam and authorized the lower basin states to make an agreement apportioning to Nevada 300,000 acre-feet, and to Arizona 2,800,000 acre-feet plus half of any surplus waters unapportioned by the compact. That left 4,400,000 acre-feet to California, plus half of any surplus waters unapportioned by the compact. It wasn’t until 1963 that this quantification became final in a decision by the U.S. Supreme Court.

The Colorado River history brings us to the present. California was apportioned 4.4 million acre-feet but has been utilizing almost 5.3 million acre-feet. However, the other states are again getting nervous and the federal government is threatening to abruptly cut California’s diversions back to 4.4 million acre-feet. California entities are scrambling to reach agreement on a “California 4.4 Plan” that would incorporate transfers and other extensive conservation efforts to gradually reduce California’s use to 4.4 million acre-feet. The California water world is currently waiting with bated breath to see what Imperial Irrigation District decides. If Imperial Irrigation District agrees to sign the “Quantification Settlement Agreement” and proceed with the transfer to San Diego and the other conservation programs, California will have until 2015 to reduce its diversions from the Colorado River. If the “Quantification Settlement Agreement” is not agreed to by December 31, 2002, the federal government has declared that it will immediately reduce California’s diversions to 4.4 million acre feet. The practical and legal ramifications of such a drastic action would be enormous.

Until the 1970s and 1980s, the opportunity to appropriate was nearly limitless, and little attention was paid to impacts due to reduced flows. However, the resurrection of a judicial doctrine (the public trust doctrine) changed all that. In 1983, the California Supreme Court decided National Audubon Society v. Superior Court, 33 Cal.3d 419, and for the first time related the public trust doctrine to the appropriative rights doctrine. This doctrine allows the SWRCB to take into account the public trust when acting upon applications to appropriate water and to re-examine past allocations decisions if circumstances have changed. That lawsuit (also known as the “Mono Lake Decision”) has combined with vigorous enforcement and aggressive interpretation of environmental and endangered species laws to drastically change the balancing done in deciding to issue new appropriative permits and in dealing with essentially all matters before the SWRCB. California now faces both hydrological and regulatory droughts essentially every year.

The foremost student of the influence of water on the West, the historian and novelist Wallace Stegner, has written, “[M]uch western history is a series of lessons in . . . the consequences of trying to impose on a dry country the habits that have formed in a wet one.” These lessons have provided a colorful history to California water rights, but the lessons are coming at a fast and furious clip these days.