Water Law 101

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.

After last week's brouhaha over the State fining a Northern California water district I thought I would dust off an old op-ed I did on water law. My water lawyer friends said it could not be done. Water law was too complex to boil down to one page. Well California water law is dizzyingly complex. But, here are the basic pieces. Please note the original publishing date. Apparently Solomon was right three thousand years ago- there is nothing new under the sun.

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).

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-the establishment of public irrigation districts superseded the private districts that had begun to spring up.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.