At the time, it was enough to affix a sign next to a water diversion to be considered a right, which can still be honored today. But the climate crisis is now putting these rights to the test. There simply isn’t enough water in California to meet what has been allocated on paper.
For years, the debate has raged in California over how best to fix the system of water rights for life in the modern age. Many of the major water rights held in the state were established before 1914, when the permit system was established and mining was big business.
“This is an old water supply system that many perceive is not configured to deal with current climate and water conditions,” human rights lawyer Nathan Metcalf told CNN. water for the Californian law firm Hanson Bridgett. “It’s just not really designed to deal with climate change and changing water needs from an environmental perspective, and then there’s also the friction between agriculture and municipal.”
Recognizing the stark effect of climate change on the state’s hydrology, California Senate Democrats have proposed using $7.5 billion in state and federal funds to “build a climate-resilient water system.” .
Of these funds, $1.5 billion would be used to purchase land with first-tier water rights from holders willing to voluntarily sell them in priority waters. Democrats argue that “fundamental changes” to the state’s water supply system are “necessary to realign demand, supply, and system flexibility.”
The proposal, which has yet to make its way through the legislature, would seek to “phase out water use from multiple water uses within a basin and over large geographic areas”, which would help to provide drinking water while improving fish habitats and wildlife refuge conditions. .
“The problem with trying to regulate seniors’ water rights is that it’s a property interest, so you still run the risk of a claim by taking that property,” Metcalf said.
A claim for taking possession could be brought by owners against the government if it seizes private property for public purposes. Landlords could also make a claim if regulations go too far in restricting their use of the land.
But Metcalf said there could be situations where it is mutually beneficial for a landowner to surrender their water rights.
“If it’s economically beneficial to the farmer and the state to buy those water use rights for another use, I think that’s a possibility,” Metcalf said. “I could also see some agricultural sectors objecting to it because you never know when or how you’re going to use that water in the future.”
Metcalf said the government could simply purchase superior water rights, which might be an easier option than trying to regulate those rights, which often results in years of litigation.
A novel approach
In northern California, the State Water Board is trying something it’s never tried before: a voluntary water-sharing agreement for water rights holders in the Upper Russian River watershed in Mendocino and Sonoma counties.
For months, the rights holders met once a week to find an agreement in anticipation of a new supply shortage. It’s an effort to avoid cutbacks spurred by severe drought conditions last year, which led to demand for water exceeding supply.
“Conditions deteriorated so quickly that there weren’t really any other options. We had to continue the reduction process. We came up with an emergency regulation,” said Sam Boland-Brien, supervising engineer at the State Water Board. “It forced all kinds of surface water users … in the upper part of this watershed to stop diversions.”
In fact, water levels got so low that “there was this very concrete risk of Lake Mendocino near Ukiah draining,” Boland-Brien said, adding that October storms from the last year had prevented the lake from drying up before. the end of winter.
Being too close to running out of water was the catalyst for finding a better way to share water, he said.
The State Water Board said more than half of the total eligible water rights holders have signed up for the program, including municipalities along the river that hold the oldest rights in the watershed dating back to the late 1800s as well as local and some larger water districts. institutional cellars.
The more rightsholders involved, the better. By registering for the program, entitled persons undertake to reduce water consumption by up to 20% to 30% for senior holders. Due to the oppressive drought, cities are also mandating water conservation. These water savings are also incorporated into what can be shared with other rights holders in the community, Boland-Brien noted.
All agreements create a pool of water available to more junior rights holders who would otherwise have had their water reduced. Participants can also make other transfers or exchanges between themselves, creating an additional level of flexibility.
“What the program does do is soften that ‘all or nothing’ aspect of the appropriation system,” Boland-Brien explained. He said a better-managed voluntary system is more likely to gain buy-in from rights holders than state regulatory measures alone.
“Those who still have water rights, produce a little,” Boland-Brien said. “They have reduced their use… so those who [have more junior rights] can survive the irrigation season with a reduced amount.”
An emergency restriction rule remains in place as a safety net for rightsholders who have not joined the program. As water levels continue to drop, discounts will be applied based on seniority.
The program came into effect on July 1 and will expire at the end of the year, but it is hoped that it can be extended in the future.
“The idea is that it would continue for years to come and so each year there would be a slightly different mix of water supply and people signed up, so even if you’re a junior in some years you could still benefit from the flexibility,” says Boland-Brien.
A court decides to break the law
The Upper Russian River program is in line with what Mike Young, a professor at the University of Adelaide and an expert in water policy reform, believes is necessary to fairly manage water rights in areas affected by the drought, except, according to him, every rights holder must be included in any water sharing scheme.
“Everyone has a percentage share of whatever is available and it goes up and down,” Young told CNN. “Have boards that make decisions in everyone’s interest, and everyone has an incentive to make the system work. The board makes the final decision and the profits go to the shareholders. .You run a water accounting system that looks like your bank account.”
In Nevada, a battle over Diamond Valley groundwater rights ended in the Nevada Supreme Court, which set a precedent when it ruled 4-3 that the state’s engineer could waive Nevada water laws, which are based on seniority of water rights, to regulate Diamond Valley. water under a new groundwater management plan approved by these water users when supplies run out.
About four years ago, Young spent time with farmers in Diamond Valley, an area of Eureka County that relies heavily on groundwater. too heavily, Young said. According to the court ruling, “the Diamond Valley watershed is over-absorbed and over-pumped such that groundwater withdrawals from the basin exceed its perennial yield.”
“The problem with rivers and groundwater resources is that they don’t lie,” Young said, adding that in one day he helped farmers write the new groundwater management plan. .
“Someone has to write the rulebook and the problem is America doesn’t have a decent rulebook for playing the game called using water,” Young said. He argues that the development of water accounting systems where the resource is scarce should be fundamental.
“Every irrigator in the West should have a water account showing how much water they can take from the system,” Young said. “Taking water that is not in your account is considered by everyone to be as bad as going to the side and harvesting your crop.”