Another busy week on the farm: Almonds are down on the ground and melons are coming up out of the ground. We are starting to cut off water in the onions. The sheep are moving off the wheat ground so it is time to break out the tractors and work some ground.
Water Law 101
By Paul H. Betancourt
Copyright August 30,
1999
Mark Twain
was right when he said, “Whiskey is for
drinking and water is for fighting.” Today’s Californians might prefer a
glass of wine, a beer or some healthy sports drink, but we still fight over
water. In fact the details of the legal battles since Twain drank his last
whisky fills libraries.
In that
mass of legal minutiae are the key principles that shape water law in
California. Tracing these principles can help us make sense of what often seem
to defy logic.
1850-The California
Constitution
The section of the California that
deals with water law was last updates in 1976. However the roots go back to the
original Constitution of 1850. There are two key points here-
-water users are required to
exercise, “Reasonable and beneficial use…in the interest of the people and for
the public welfare” (Art. X Sec. 2).
-all water is, “subject to the regulation
and control of the
State” (Art. X Sec. 5).
State” (Art. X Sec. 5).
These two principles are the foundation of water law in
California.
1887- The Wright Act
In the 1800s there were numerous
lawsuits involving water. Many of these suits revolved around the famous Miller
and Lux Land and Cattle Company. Many bills also passed the California
Legislature. One of the most important of these bills was the Wright Act of
1887. Named after Modesto attorney-turned legislator C.C. Wright, the Act’s
main points were:
-the establishment of public
irrigation districts superseded the private districts that had begun to spring
up.
-water rights were bound to the
land to be irrigated.
-irrigation was defined as a
‘public use.’
1902-U. S.
Reclamation Act
The grand-daddy of Federal water
law is the 1902 Reclamation Act. In his Autobiography Theodore Roosevelt, the
President who signed the Act into law, clearly states the intent of the law
was, “reclaiming the vast areas of the
arid West by irrigating otherwise useless land, the creating new homes upon the
land.”
It
may be hard for us to visualize what the country was like before these
Reclamation projects. It is even harder to imagine what the West would be like today
if it were not for these projects. Can you imagine the Central Valley without
irrigation? It is not just the Valley, LA and San Francisco would not exist in
their current form either.
Whatever
criticisms of Reclamation projects there are today, we must remember it was a
different age. Their decisions changed the face of the West which they saw as a
vast, barren wasteland. Reclamation law has been highly successful in achieving
its intent- the West if fertile and inhabited because of irrigation projects.
The
original 1902 Reclamation Law has been updated by Congressional reform in 1982
and in California, in 1992 by the Central Valley Project Improvement Act.
1937- Central Valley Project (CVP)
The CVP was authorized under the
River and Harbors Act of 1937. Today it stretches from Shasta Dam in the North
to Bakersfield in the south. The project includes 23 dams and reservoirs,
hundreds of miles of canals which supply 7 million acres feet to 2.8 million
acres as well as providing some water to cities in California’s great Central
Valley.
1959- The
Burns-Porter Water Act
In 1960
California voters ratified a $1.75 billion bond to create the State Water
Project. A distribution system that could handle the projected needs for the
next 60 years was created and storage capacities for the next thirty years was
also created. Additional storage was scheduled to be built in an orderly
fashion as the need arose.
Subsequent
case law and the beginning of environmental legislation such as the Federal Clean
Water Act have had their impact on water law in California.
May water
law attorney friends will be calling after this is published to remind me how
inadequate 750 words are to describe the libraries full of water lass and the
resulting case law decisions and they are right, in a sense. However, these are
some of the basic building blocks of California’s water law.
Governor
Edmund G. “Pat” Brown said, “as long as
California continues to grow and develop, each generation will face and must
resolve a new set of water problems. At intervals of about 30 years, the
dynamic of the state’s development has demanded new appraisals of recently
created water needs. Renewed action to meet those needs [is] essential.”
Until
someone wins a Nobel Prize for developing low energy desalinization so we can
tap in to the vast Pacific Ocean, we will continue to fight the water wars. It
is important for all the players and the public to understand the ground rules
as clearly as possible.
