Update, May 11, 2015: Once again this year, state officials have ordered thousands of junior water-rights holders to stop pumping water due to the drought. They’ve also warned that senior water-rights holders could be limited sometime later this year, if the limits on junior rights holders aren’t enough. In April, Governor Brown said if the dry conditions continue, the state’s entire water rights system could be up for examination.
Original post (Dec. 8, 2014):
After three years of historically dry and hot weather, the images of California’s drought have become familiar: empty fields, brown lawns, dry stream beds. But for every one of those scenes, there are other parts of the state where water has been flowing freely and the effects of drought are hard to see.
It’s all tied to California’s system of water rights -- the complex hierarchy that governs who gets water during a drought and who doesn’t. After unprecedented cutbacks this year that left many farmers scrambling for water, some critics say the hierarchy is a historical relic that makes it harder for the state to deal with drought.
The system is largely invisible, buried in legal contracts, court decisions and stacks of century-old papers. To get a sense of what it all means, there is a place you can go to actually see water rights in action: east of Interstate 5, near Los Banos, in the Central Valley.
The Haves and the Have Nots
“This is probably the most catastrophic water year we’ve ever had,” says Lon Martin, assistant manager at the San Luis Water District. He gave me a tour of the district at the height of the summer growing season this year, but there wasn’t much to see.
“Very brown, desolate agriculture,” he says, eyeing the unplanted fields.
Farmers in the area rely on water from the federal Central Valley Project, but with the extreme drought, they didn’t get a single drop of their usual supply. Some laid off workers and ripped out almond orchards while others tried to buy more expensive water on the open market.
Then, as we sped down the road, the fields suddenly were green. There were rows of tomatoes and alfalfa, almost as if we’d crossed an invisible line.
It turns out, we had – into a different water district.
“There’s an obvious dividing line,” Martin says. “They have much more senior rights.”
Farmers in the Central California Irrigation District were getting the majority of the water they normally do. The difference is water rights -- the pecking order of who gets water first in California.
Senior vs. Junior
“California has one of the most complicated water rights systems in the United States, if not the world,” says Buzz Thompson, professor of law at Stanford University. Thompson is one of the few people in California who can actually explain the intricacies of this pecking order.
The first in line for water in California are people who own land next to a river or stream. They have “riparian” water rights, as they’re known.
But the vast majority of Californians don’t live on a waterway. So for most everyone, including cities and the majority of agricultural areas, it all depends on when they claimed water.
“Whoever gets to a river first gets the senior right to take water out of that river or stream,” Thompson says.
Early in California’s history, water claims could be made by nailing a piece of paper to a tree, as the mayor of San Francisco famously did to claim Tuolumne River water in 1901.
People who got in early have senior rights. Everyone who made claims later has secondary or “junior” rights – and they only get water once the senior rights holders get the water they've claimed.
It’s as if, to get a cup of coffee at work, you had to line up with all your coworkers in order of how long you’ve all worked there. Sometimes, the coffee pot runs dry.
“In a period of drought, it means some people, the junior people, don’t get any water at all,” Thompson says. “And the more senior appropriators may get all of the water they’re entitled to.”
While San Francisco has very old water claims, latecomers like the Santa Clara Valley Water District, which serves Silicon Valley, legally have to wait for their turn to take water, after other cities and farming districts.
“Although that’s our legal system, it doesn’t necessarily amount to a fair system or an efficient system,” Thompson says.
This pecking order kicked in this year in a widespread way for only the second time in California’s history. State regulators ordered thousands of junior-rights holders not to use water from streams and rivers.
It might make more sense in a drought, Thompson says, for everyone to pitch in and cut back equally.
But in California -- where whiskey's for drinking and water's for fighting -- it’s not a popular suggestion.
“You get a lot of people who rise up in arms,” Thompson says.
Paul Wenger, president of the California Farm Bureau Federation, agrees.
“They’re going to fight,” he says. “It’s just not going to be with clubs and pitchforks. It’s going to be with attorneys and engineers.
Wenger says water rights are the backbone of the state’s multibillion dollar agricultural industry. The value of land is based on water rights.
“It is part of your property right,” he says. “When you go buy an acre of ground, it’s going to be reflective of how solid are your water rights, how senior are your water rights.”
This all adds up to mean that any idea of changing the system is a political non-starter.
“I consider that to be thermonuclear in California,” says the state's Secretary for Natural Resources John Laird. “We’ve had the water rights system for over 100 years. It’s determined. Everybody lives by it. It’s 38 million people.”
So where does that leave California, with droughts inevitable and climate change only expected to make things worse? There may be two things the state could do.
Sorting Out the Rights
The state's water claims are filed inside an old bank safe, in a back room of the Division of Water Rights in Sacramento. Records custodian Matthew Jay turns the combination lock and cranks open the door. The safe is filled with thousands of pieces of yellowing paper, each with a gold seal.
“The further you go back in time, the more brittle they get,” Jay says. “It’s all the water rights of the entire state.”
Actually, only to a point, he says. The oldest one, signed in 1915, isn’t technically the oldest.
Water claims were made early in the state’s history, even before the Gold Rush, but it wasn’t until 100 years ago that California started keeping track by requiring licenses and permits for water rights.
“People would think you have it all massively nailed down,” says Felicia Marcus, chair of the State Water Resources Control Board, the agency that oversees water rights.
But what’s on paper often doesn’t reflect what’s happening in the real world. According to a study from UC Davis this year, the state has handed out rights for five times more water than there is in an average year.
Senior water-rights holders, with rights dating before 1914, aren’t required to have permits with the state and only started reporting their water use officially in 2009, after the state legislature passed a bill requiring it.
A few other Western states have actually gone through and verified all their water rights – a process known as “adjudication.”
“They haven’t changed the rights,” Marcus says, "but they’ve spelled it out more so there’s less uncertainty."
That process took 30 years in Idaho and is taking 50 years in Montana. Sorting out the rights in California’s Central Valley alone could cost an estimated $100 million, according to Richard Roos-Collins, an attorney with the Water and Power Law Group.
While it would make the water rights system more accurate when cutbacks kick in, it wouldn't change anything about how the system operates.
“There are many years where there’s more than enough water to meet all of the water rights out there,” says Marcus. “Does that mean the water rights system couldn’t be tuned up and operated more efficiently? Of course, we could improve it and we would love the resources to be able to improve it.”
But if California’s drought drags on, some say the state may need to address how water is used, not just who uses it. It turns out, the authority to do that already exists.
Unreasonable Water Use
“What we are looking for is Article 10,” says Buzz Thompson of Stanford Law, flipping through the California Constitution.
“California has a constitutional provision specifically to avoid the problem of people wasting water when other people needed it,” he says.
The provision says, “The waste or unreasonable use or unreasonable method of use of water is prohibited.”
This is powerful language, Thompson says. During a drought, regulators could say that certain water uses are unreasonable and can’t be done, like growing crops that use a lot of water or overwatering our yards.
Politically, that would be a bombshell. State officials say they’d continue with water conservation measures, both voluntary and mandatory, first.
“The idea of picking a particular crop or particular use and saying it’s not reasonable -– that’s something people should only do after a tremendous amount of thought,” says Felicia Marcus.
But in a future of more extreme drought, grappling with water rights may be unavoidable.
“If we have a really very severe drought that, say, lasted another five years,” Thompson says, "I would be surprised if State Water Resources Control Board and the Governor did not seriously think about adopting a new way of allocating water."