The villain in Greg Keyes’ 1996 fantasy novel The Waterborn is a voracious river god who devours his tributaries. The book’s hero, a young warrior named Perkar, wants to kill the river god so it will stop chewing away at his beloved stream (a minor goddess). I don’t do lit crit, but to me this book reads like an allegory for water rights.
Water is California’s god, and its holy texts are the legal codes governing who gets to use it and when. Like scripture, these laws offer guidance that is seemingly clear and justall water use shall be reasonable and beneficialwhile vague enough to cause strife and schism. The laws also seem to anoint a chosen people. California’s bachir are users who scored their rights during the 60-odd years between the beginning of California’s 1850 statehood and when it finally decided to formalize its water permit process in 1914. These so-called senior rights holders believe state regulators have no authority over their communion. (Prior to January, they weren’t even required to meter their use.) And for the 100 years since, they’ve gone mostly unchallenged.
This drought changed that. Last June, the State Water Resources Control Board (water board, from here on) warned some senior rights holders that the surface supplies did not contain enough water to meettheir needs. Several kept slurping, and the water board slapped one offender (the Byron Bethany Irrigation District) with a $1.5 million fine. Byron Bethany appealed. Last week, after an internal review failed to turn up enough evidence that the water shortage would affect Byron Bethany’s allotment,the water board dropped the fine. “When water gets low, it gets harder to prove how much water is available in the system,” says Jay Lund, a water expert at UC Davis. This is a snake-eats-tail problem. Senior rights holders have not had to report their usage, so the water board doesn’t have an quantifiable record to enforce shortages.
Instead, the state uses supply and demand to forecast how much water is actually in the system. “The forecasting tool is sound to issue notices of water unavailability,” says George Kostyrko, water board spokesperson. “But if used as enforcement tool, it has to be supplemented with additional evidence. In other words, the water board can only bark at suspected overdrafters like Byron Bethany until it gets better measurement toolsthe focus of a surface water workshop later this summer.
And even the board’s ability to bark is in question. These fines were dropped because an internal water board hearing found that the boards investigators did not have enough evidence to prove Byron Bethany was actually violating its allotment. Several concurrent court cases are determining whether the water board has any ability to regulate senior rights holders whatsoever.
The Early Days
Confused? That’s OK, so is everyone else. Best to go back to California’s earliest days in the US.
Originally, California’s territorial leaders modeled their water rules after those in Englandriparian law, which means the amount of water you get correlates to how much of your land abuts a water source. (That was obviously ridiculous, because most of California’s land does not touch any water sources.) Then came the Gold Rush, and miners started diverting water to work their sluice boxes, long toms, and hydraulic cannons. Their water claims became as valuable as the gold itself, and were formally known as appropriative rights. When California became a state, it adopted both riparian and appropriative rightsbut no mechanism for addressing disputes if someone used so much water that it cut into other peoples’ supply. It was literally the wild west.
This two-headed system was clumsy. Say for instance your lowland farm has appropriative rights to divert water from a river coming out of the Sierra Nevada foothills. But one spring, your canals run dry because some riparian rights holder upstream decides to flood her land so her cattle have more sprouts to graze. Disputes like these kept happening until around 1911, when the legislature finally started to work on a solution to the two-headed klutz of a system.
The Water Commission Actwhich became law in 1914set up a permitting system that was a more formalized version of the appropriative rights that came before. (The water act also tried to sunset riparian rights, but that aspect of the law failed in the courts.) And it set up a commission to manage disputes between rights holders. Which would have been OK,except the water act still recognized all the riparian and appropriative rights that pre-dated the 1914 law. And it still had no authority to regulate them.1
The water act essentially set up a two tiered system. “Pre-1914 water users are not subject to the Board’s permitting system1,” says Jennifer Harder, water law expert at the University of the Pacific McGeorge Schoolof Law in Sacramento.
And that system probably would have worked fine in perpetuity if California were not a drought-prone population magnet.
Environmental regulations like the Endangered Species Act put even more pressure on surface water resources. And in the meantime, other laws gave the water board slightly more power. But still, the pre-1914 users held onto most of their autonomy. Then, in 1986, the water board went after Imperial Irrigation Districta southern California water agency with rights dating back to 1911. The water board won, and the ruling set a new precedent. “The court weighed in and said the state board did have authority to regulate pre-1914 rights holders,” says Harder. “But did not go into reasons why, which is one of the reasons we don’t have clarity now.”
In 2015, the water board once again tested its authority over the pre-1914 rights holders. When the agency’s supply and demand forecasting tools predicted all-time lows in the surface water system, it informed rights holders whose claims dated back to 1903 that if they kept pumping they would be stealing water from those with even older rights. Fines could follow. Byron Bethany Irrigation District was one of them. And they pumped. And they were fined.
Byron Bethany appealed, won, and the water board dropped the fines. But remember, the board maintained that it still has authority to regulate pre-1914 rights holders. It just needs more data, more tools, in order to enforce those regulations.
The water board wants to settle the data issue soon. “The hearing officers suggested that we might want to hold a workshop in the future to improve enforcement protocols,” says Kostyrko, the water board spokesperson. Which could help the agency solve the problem of water metering, which a January law made mandatory for all rights holders. “It’s easy to think that we should be able to track, meter, and measure everyone’s water use,” says Harder. “But the practical reality of doing so is difficult. The cost of integrating new technologies threatens to bankrupt agricultural water users, in some cases.”
And now we’re back to the snake-eats-its-tail problem: Does the water board indeed have the authority to regulate these pre-1914 rights holders? It believes so. But that question is being tested in five civil suits various senior rights holders have filed against the water boardall related to last year’s warnings (Byron Bethany is a plaintiff in one of the cases). “I think that there is an important distinction between pre-1914 and those forthwith,” says Nick Janes, spokesperson for Byron Bethany. “Naturally theres an ongoing dispute whether this is a legal distinction that might be years to iron out.”
Without the authority to regulate these pre-1914 rights holders, the board remains handicapped in its core responsibility: Making sure everyone gets the water they deserve. It is easy to vilify these senior rights users, but it is also important to understand that they are legally entitled to this water—and they need it. Because farming is such a low-margin gig, it is very important for them to have reliable access to water. Likewise, endangered fish and pool owning city folk can’t continue to be scapegoats for water laws that are incompatible with reality.
And like Old Testament doctrine, California’s water laws are incompatible with modern life. But unlike The Waterborn’s river god (spoiler), these doctrines can’t be killed and reformed as something kinder. The only thing for certain is they will inevitably get ever more complicated.
1 In retrospect, these grandfathered-in senior rights probably seem like a very stupid thing to include in the water act. Butperhaps unsurprisinglymany Californians did not want their water regulated. The senior rights were a compromise. “There was a lot of pushback on the Water Commission Act,” says Nicole Kuenzi, a lawyer with the water board. “There are funny stories of legislators escaping out the windows of the state buildings because they didn’t want to vote.”
1 UPDATE 7:12 pm ET 6/14/16 This quote has been updated to clarify the pre-1914 rights holders responsibilities to the water board.