Water & Justice

California Water Rights Primer

Illustration of a gold mining claim in the Sierra Nevada.

 
Drawing of Gold Rush Mining Claim - California State Library
Courtesy of California State Library.

To mobilize water for human use, our society grants property rights to use water. No one is allowed to hoard or possess it because of its intrinsic properties and its necessity to all life and economic activity. The rights to use water also carry obligations to other water right holders, particularly not to harm the rights of other water right holders and not to harm the environment.

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Paper Water

This is not a river: California Aqueduct near Byron.

 
California Aqueduct Sign.JPG
Photo by Tim Stroshane

"Paper water" is the idea that government has promised more in rights to water than there is water that flows in Nature's rivers and streams in California. There is far more water "on paper" than there is in California's water ways. 

The fact that this discrepancy has languished for decades is a sign of magical thinking on the part of water industry officials and regulators in California.

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Five Decades of Magical Thinking

 
Diversions along Middle River in the South Delta, early morning, May 2013.

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Water Waste and Unreasonable Use and Diversion


StateConstitution.jpg

In November 1928, California voters approved Proposition 7, amending the California constitution to prohibit the waste, unreasonable use, and unreasonable diversion of water.  Voters approved the measure by a 3-to-1 margin; it won in every county. 

The success of the proposition is easily explained: Water was very much on the minds of California residents at the time. The state had been affected by severe drought throughout much of the 1920s, and two recent state Supreme Court decisions (Antioch and Herminghaus) had a profound bearing on water rights and water disposition.*

 

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Other Environmental and Water Laws

California's state capitol

 
Sacramento-state-capital-house1.jpg
Courtesy of watersecretsblog.com

C-WIN exists to enforce existing water and environmental laws California already has on the books. If the laws we have were enforced properly, we believe many problems vexing the Delta and other places in California could be solved—and the sooner we get on it the better!

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The Public Trust Doctrine

Mono Lake in eastern California

“By the law of nature these things are common to mankind – the air, running water, the sea, and consequently the shores of the sea.” Emperor Justinian, 530 AD

The Public Trust Doctrine obligates government to protect and preserve waterways for public uses. As opposed to one single law or policy, the public trust doctrine is a guiding principle of government, composed of a body of laws and legal precedents. The public trust doctrine asserts that the state holds water ways “in trust” for use by the public. These public uses typically include navigation, recreation, fishing, but in California, have been expanded to include ecological values. As the trustee for the citizens, the state is obligated by the doctrine to protect rivers and wetlands for use by the public.

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Legal Basis for Water Rights Protests

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Friant Dam looms along the San Joaquin River northeast of Fresno.

 
FriantDamUpClose2001.jpg
Photo by Tim Stroshane.

Once the public is notified of a water right petition, the California Water Code provides the public and interested water right holders an opportunity to protest granting of an application for a water right.

Learn about C-WIN's Water Rights Action Program.

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Area of Origin Statutes

The Los Angeles Aqueduct bringing Owens River water to Los Angeles from 250 miles away.

 
early_LA_aqueductTakeIt.jpg
Courtesy of Los Angeles Department of Water and Power.

California's area of origin statutes were forged in the conflict between residents of Owens Valley and the City of Los Angeles in the early 20th century. This struggle climaxed in 1927 when deeply frustrated Owens Valley advocates seized the Alabama Hills diversion gates for the Los Angeles Aqueduct and later detonated a bomb that severed an aqueduct pipeline.

This episode eclipsed even Mark Twain's apocryphal quote about fighting, drinking, water, and whiskey. This was water policy hardball, the likes of which weren’t seen before and haven’t been seen since.

 

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Water Transfers: Upending California's Water Rights System

Shasta Reservoir, a key source of water for water transfers south of the Delta

 
Courtesy of US Bureau of Reclamation

Water transfers are often characterized as a "flexible" way to ensure that water-short water agencies get supplies they want. Water transfers are premised on the existence of a "water market" in which trades or exchanges of money for access to water supplies are arranged.

At the California Water Impact Network, we view water transfers as an troubling method for undercutting the state's water rights system and keep pressure up on California's rivers, streams and aquifers. Transfers help ensure that water "flows uphill to money" by giving legal to large amounts of capital in water allocation decisions, especially in dry years.

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