The Associated Press last week filed an extensive report about the water consumed by California’s nearly 4,000 senior water rights holders. The story is sure to fuel controversy in the drought-parched state.
California recognizes two types of water rights.
According to the California Water Board, riparian rights were recognized when California became a state. Riparian rights allow owners of property bordering a stream to use a share of the stream’s natural flow.
A year later, the Legislature also adopted the appropriative rights that had been claimed by settlers even before California was part of the United States.
Appropriative rights are based on a common law priority system — first in time, first in right. The first person to claim and use a particular source of water is given priority — senior rights — over subsequent users. Unlike a riparian right, which is forever attached to the land bordering the stream, an appropriative right is itself property that can be sold by the holder.
The senior right holders are entitled to all the available water from their source they want, while the junior right holders get a specific share of what’s left based on the priority of their claim.
For much of the 19th Century the process for establishing a claim was somewhat loose, and the dual rights system fueled legal disputes from its inception.
In 1914, the Legislature passed the Water Commission Act formalizing the state’s surface water permit system and recognizing the existing senior rights.
The AP notes the 3,897 senior holders are “dominated by corporations and agricultural concerns.” It is a bit misleading.
Though single legal entities, many senior right holders are collections of individual water users such as irrigation districts and municipalities. In fact, millions of Californians are beneficiaries of senior rights. The City of San Francisco is a senior holder that provides water to 2.6 million customers. South Feather Water & Power serves municipal and irrigation customers in southeast Butte County.
And while they are not required to conserve water in the drought, many do — both because it’s the right thing to do, and because they are often also junior right holders subject to state restrictions.
The AP points out that no one really knows how much water the senior holders use because the state’s record system is flawed.
The story will renew cries that California’s system is unfair — so few have so much while so many suffer. Should not this resource be reapportioned, and the benefits and sacrifices be shared equitably?
It’s an easy emotional argument, but fails to consider the legal and practical implications. How do you equitably take the property rights now employed by millions of Californians to give millions of others an equal share?
At stake are billions of dollars of industrial and agricultural investment made on the basis of those rights, and the thousands of jobs that hinge on them. Simply reallocating the water is unlikely to produce the equity critics of the current system desire.