By Earth Law Center
History of Water in California
For millennia, California’s native peoples understood that the environment had intrinsic value – even that it possessed thoughts and feelings. “Nature was neither the enemy nor simply a means to an end or a commodity to be exploited for wealth or power.”[1] In particular, native Californians deeply respected the health of rivers and streams, often considering them sacred. It was particularly unthinkable that water – essential to all life – could be bought or sold.
But things began to change in the 1700s as the Spanish introduced to California the perspective that nature – including water – was “property” to be subdued. According to historic Spanish law, “Man has the power to do as he sees fit with those things that belong to him according to the laws of God and man.”[2] But even Spanish law respected environmental limits, and no person was given a superior right to water that was to the detriment of another.
When the 1849 Gold Rush began, emerging state water laws all but eliminated environmental considerations. With gold mining requiring vast amounts of water, the massive influx of settlers turned to a “first in time, first in right” rule to allocate it. This is called the “appropriative” doctrine. The “riparian” water rights doctrine also emerged around the same time, allowing a landowner to use a portion of the water that flows adjacent to his or her land. The appropriative and riparian water rights doctrines make up the “dual water rights system” of California.
Contrary to native Californian custom, the new legal system encouraged waste and permitted ecological degradation. And contrary to Spanish legal traditions, equity and justice were no longer primary considerations. Above all, the idea of water as a private “good” or “resource” became engrained into law and culture.
The Result of Flawed Water Governance
Flashing forward to modern times, California’s water laws have remained stagnant, and the same flawed legal principles subsist today as then – including the steadfast notion of water as property rather than a shared necessity for all. And while there are new legal protections for waterways, such as the Clean Water Act, they have failed to reverse the tide of environmental degradation. A primary reason is that such laws still operate within the same flawed paradigm of waterways as economic engines.
The result of this system has been the vast over-allocation of water across California – with very little (or sometimes none) left for waterways themselves. In fact, the amount of surface water allocations on paper exceeds California’s actual freshwater supply by about fivefold.[3] Although not all of these water rights are utilized, there is a clear imbalance between the amount of water allocated for human uses – those that are wasteful and unnecessary – and waterway needs.
Reduced freshwater flows to California’s inland waterways, estuaries and coastal habitats have resulted in serious ecological impacts. In fact, over 70% of California-native freshwater fish species are threatened or endangered mainly due to flow changes caused by over-diversions.[4] For example, reduced freshwater flows to California’s inland waterways, estuaries and coastal habitats have contributed to reductions in population of five steelhead and five salmon species now listed as threatened or endangered.[5] Moreover, marine predators such as the Southern Resident killer whale and the Southern DPS (Distinct Population Segment) green sturgeon are also endangered due to reduced populations of the California-native freshwater fish they depend on for food.
Report on 21st-Century Water Governance
Considering many of these challenges, in February 2017, Earth Law Center (and collaborators at Stanford) released a report on evolving California’s water governance, titled “Re-Envisioning California Water Law and Policy for the 21st Century” (available at: https://www.earthlawcenter.org/california-waterways/). The report offers a blueprint for a sustainable water future. Specifically, it addresses California’s flawed water allocation and management system and presents alternatives that would maximize the social and environmental well-being of both humans and nature.
The report addresses many of the flaws in California’s water governance. For example, the state of California often touts water markets as a potential solution to water overuse. However, this approach will only further entrench our dysfunctional water system by directing water towards the most profitable use – i.e., the use with the highest bidder – rather than the most socially and ecologically beneficial use. A market approach treats water as "property" to be bought, sold, and profited from. Water should instead be treated a life-sustaining and inherently public entity.
Rather than a goal of selling water to the highest bidder, California’s approach to water governance must answer the question: “how should our state share something that is fundamentally essential to the life and vitality of all Californians and California’s ecosystems and species?” The answer requires holistically transforming our relationship with water based on a new water ethic – one that takes a holistic view of water as life sustaining and a public and environmental good. And we must implement this ethic through new water governance.
Next Steps
The report describes several approaches that can be taken to evolve water law in policy in California. These include the following:
- Applying readily available but vastly under-utilized protective legal doctrines, such as the waste and unreasonable use and public trust doctrines;
- Developing and prioritizing instream water rights, to ensure that waterways’ needs are highlighted in decision making;
- Funding comprehensive data-gathering efforts on surface flows, groundwater levels, and water withdrawals and uses;
- Enforcing water use rights violations, including allowing for direct penalties for violating water right permits, and creating a streamlined process to act on violations of the waste and unreasonable use doctrine; and
- Simultaneously increasing agricultural and urban water efficiency and reducing demand, so that efficiency savings are not simply translated into more use.
As described above, until only very recently, California embraced a water ethic that respected and shared rivers and streams. This ethic can be met once again if we evolve our laws and choose to create a water future in California that works for all – beginning with the above recommendations. Together, we can transform our current governance system into one that embraces the values of environmental stewardship and harmony with nature, to the benefit of everyone.
[1] Norris Hundley Jr., The Great Thirst: Californians and Water—A History, Revised Edition (2001).
[2] Las Siete Partidas (1265 codification of Spanish Law).
[3] Kat Kerlin, "California Has Given Away Rights to Far More Water than it Has," UCDavis (Aut. 19, 2014), at: https://www.ucdavis.edu/news/california-has-given-away-rights-far-more-water-it-has.
[4] Johnson, James, “Imperiled Freshwater Fishes,” National Biological Service; referenced in Pacific Rivers Council Report, supra.
[5] See California Department of Fish and Wildlife, "Threatened and Endangered Fish," at: www.dfg.ca.gov/wildlife/nongame/t_e_spp/fish.html.