Water Use Rights: I have
heard a lot lately from people who appear to believe that water is a resource that is
collectively owned and that everyone has a right to it. This is not the case. Although I
am certainly not an attorney, I believe that I have developed a good grasp of the general
frame of California water rights.
First, one should note that a “water right” is the
right to use water in a certain amount, taken from a certain place, applied upon a certain
place and sometimes, during a certain time period. All water use rights are also subject
to limitations of reasonable, customary and beneficial use.
During the Gold Rush, the miners followed the Mexican laws
governing individual property creation: (1) discovery, (2) “appropriation” (or
physical control), (3) due diligence and (4) continuous beneficial use. They also
recognized the better of competing claims as being; “first in time, first in right.”
Since mining required a great deal of water, the miners used the rules of appropriative
water rights to take or control water from a stream and convey it through ditches and
flumes to a location where they were actively mining gold. In Siskiyou County, hundreds of
miles of ditches were dug in the 1850s-70s to move water around for gold mining. A large
majority of these ditches passed over unoccupied public lands. (For instance, the 1856
“Big Ditch” or China Ditch spanned almost 100 miles from Grenada through Shasta
Valley to Hawkinsville.) At the same time,
lateral ditches were dug to take water to farmers for irrigation of their crops.
Then along came the new state of California, which accepted the
English Common Law as its basis. English law recognized “riparian” rights. A
riparian piece of land is one that borders a river. Included as part of the ownership of
riparian land is the right to use water for domestic needs, (gardens, orchards, and
livestock.) There is also the riparian right to use water for power generation, commercial
livestock herds and gravel extraction. However, these uses carry a secondary preference.
The riparian right transfers as part of the land. Riparian users have a “correlative”
right. That means that available water is equitably apportioned among them. Riparian irrigation is generally flood irrigation
and the excess water or “tailwater” is returned to the stream for the next user.
The “dual system” of California water rights merges the two
legal concepts (appropriative and riparian) together using the principles of “first
in time, first in right.” Under the concept of “absolute territorial
sovereignty,” the courts accepted that while the land was still in federal hands, California
riparian rights had not yet attached to the land. It was only after land was homesteaded
that riparian rights attached. At that time, there could already be a diversion ditch and
an appropriative water right at that location to which the land was subject as an
easement. The riparian right would then be junior to the appropriative one.
In 1911, the California State Legislature declared that "all
water or use of water within the state of California is the property of the people of the
state of California." At that time, several court cases established that the people’s
claim could only apply to “surplus water” – water available for use over
and above what had already been claimed as private property or as a federally “reserved”
riparian right.
In 1914, the legislature enacted the California Water Commissions Act establishing that
the use of these surplus public waters was to be granted by revocable license, and subject
to regulation by the State as a privilege.
One may hear local farmers and ranchers talk about pre-1914 water rights. That is
because many of the water use rights in Shasta and Scott River Valleys date back to the
Gold Rush. They are private property. They are also considered “vested” property
rights. (Dating way back in English law, it was held that a sovereign’s grant of
property cannot be annulled or later modified by the grantor through
legislation or otherwise. The rights have vested.)
Private property is protected from being taken by the
government without just compensation by the Fifth Amendment of the Constitution of the United
States and Article 1 Section 19 of the Constitution of California. Many recent regulations
for water quality and the protection of threatened salmon require farmers and ranchers to
get a permit to take irrigation water. As a condition of that permit, some agencies appear
to be requiring that the farmers surrender a portion of the water to which they have a
vested property right without compensation in order to increase instream flows for fish.
This has caused several lawsuits that many groups are working through. |
