Will California Drought Force Changes In Historic Water Rights?

Water moves long distances in California, all based on a complex system of water rights that some say is outdated and unfair. (Josh Viers/UC Merced)

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.

This ripped-up almond orchard is in the San Luis Water District, which is supplied by junior water rights. (Lindsey Hoshaw/KQED)

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.

RS13428_Water allocation copy-hpf

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.

The first water right was licensed in California in 1915, but there are thousands of senior water-rights holders that have earlier claims. (Lauren Sommer/KQED)

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.”

Will California Drought Force Changes In Historic Water Rights? 18 November,2016Lauren Sommer

  • Dean

    It only took me 53yrs to know this. Thanks

  • farmwater

    The UC Merced report used as a reference in this article does a terrible job representing California’s accounting system for water rights. Water rights are reported with several numbers. Almost never are they a simple single number. Permits and Licenses must address all flow conditions from drought to flood. They must also cover different runoff patterns from early to late in the year. Often a permit or license will have a maximum instantaneous and maximum 30-day average rate of diversion in cubic feet per second or gallons per minute. They will include the season of diversion, which can range from a few days to an entire year. All of those parameters are often capped by an annual maximum.

    The SWRCB for the purposes of billing water rights fees has chosen to take the maximum daily rate multiplied by the season of diversion and covert that to acre-feet. In the case of the Kings River, for example, that exceeds the largest runoff period ever recorded by a large amount.

    The numbers get even more inflated and ridiculous when you add the hydro generation licenses that are non-consumptive to the equations. The best example of this is in Imperial Irrigation District where they have 10 hydro-electric generation plants on the All American Canal. Each plant has its own license for the same water runs through each plant. By example a single plant is licensed up to 1 million acre-feet per year. The district would be billed or could be represented that they could use 10 million acre-feet per year. In reality, the district might have only put a half million acre-feet into the canal and that same water went through each plant and you get the same water out the other end of the canal. The last example illustrates the lunacy of using licensed values in any discussion of California water without excruciatingly detailed understanding of the specific license.

    Mike Wade
    California Farm Water Coalition

    • Aldo1887

      The more complex a system is, the easier it is to game, because it becomes impossible for anyone but experts to even know you’re gaming it. It sounds like the re-negotiation or even “simply” complete documentation of those rights, bringing them to the light of day, would benefit all of us, (except those gaming the system.)

      • Candid One

        There is no state in the nation–no region in the nation–with the size and complexity of what California faces. California is the most geologically, geomorphically, climatically, and hydrologically complex state in the nation–bar none. Add its immense size in area and population to that and complexity is a done deal–in every applicable fashion. To worry about someone gaming a new, more centralized system is sad silliness–because that’s already being done on the hodge-podge systems that we’ve had previously.

        • Aldo1887

          You seem to have missed my point, the system is being gamed outrageously now, and it is easier to abuse the current system because the current system is so arcane and obtuse, I doubt very many folks even know what abuses are actually occurring. Trying to stop that abuse, by whatever methods, would benefit everyone in the state, except those who are gaining special privileges under this obtuse system. I think that codifying or bringing the system out into the light of day is something that should be done, but then I have never been one to look at a difficult task, throw up my hands and walk away.

  • mjbarkl

    This would do it:


    And this is why we need it:


    And it would solve all these other water problems.

    –mike mjbarkl.com/run.htm

    • Aldo1887

      I got to “raise the level of Shasta” and punched out. I realized you must be wearing a wizard hat and holding a wand to even pretend that would be reasonable.

      Or more like, the logistical issues involved with your theorem, even with land-ownership rights (not to mention engineering, environmental impacts, etc, etc,) are so overwhelming, that to even propose this, means you have utterly no grasp of the consequences of what you are proposing.

      Typical politician, I’m surprised you DIDN’T get elected..

    • Candid One

      Manmade surface storage doesn’t make it rain or snow; snow is most important and global warming will diminish the average snowpack in most of the Sierra Nevada. The continuous refill of lakes and reservoirs during normal precipitation years creates the illusion of such storage efficacy. When we get warm torrential rains from central Pacific, the Pineapple Connection, the swollen streams and rivers turn dams and their reservoirs into wide spots in the flow.

      Without the immense storage capacity of the Sierra snowpack to hold and ration the storage release through the seasons, most of California will have water supply problems that reservoirs and lakes can’t fix.

      The state’s aquifer storage had been eight times what surface storage capacities. Now that subsurface groundwater depletion is so evident, recovery by recharge won’t happen in less than several normal rainfall years, especially if the snowpack becomes increasingly meager.

      Runoff is nice but the state could never build enough water storage capacity even if California wasn’t the most seismically active region in the country. In California, only siting of a nuclear power plant is more difficult than siting a major dam and its reservoir. California has a history of dam failures and near-failures from faults and earthquakes which renders such risk as a touchy subject.

    • mjbarkl

      Dear Aldo: Soooo, what are you doing to mute the effect of a repeat of the floods of 1861-62 ? understanding of course that we have moved 1,500,000 people into the footprint of those floods in the Central Valley and there have been seven such events over the past 1800 years of which 1861-62 was the least? –mike

      • Aldo1887

        You realize that was a 153 years ago right? a 1/257 year event from a time when there were no virtually no man-made water diversion outside of hand-dug irrigation?? You don’t think any of the water infrastructure or hydrological modeling has improved at all in 153 years? How are your plans for the next ice age shaping up? Comet strike? Should I stock up on bison pelts? /facepalm

    • mjbarkl

      Dear Aldo, yes I realize it was 153 years ago. I also realize that some of the flows on some of the streams radically exceed spillway/bypass capacity of dams on those streams and some of those dams are earth fill which yields an entirely new threat. When you overtop a fill dam, really bad things happen. New Melones is one example – their bypass capacity seems to be about 43% of what the flow may have been in January 1862.

      Most of these existing dams share flood control and water supply storage duties, so they aren’t fully available to contain massive flows of the sort generated in 1861-62.

      For instance, Folsom max is 1,010,000 acre-feet, storage as of 12/10 is 326481 which is much less than a normal end of season, for an unusual available flood capacity of 683,519 a-f as of 2 days ago. One controversial recent study showed an estimated maximum flow on the American during the 1861-62 floods of 460,000 cfs, which is roughly 920,000 a-f per day so at that kind of flow it would fill in about 18 hours. btw, Sacramento was the only leveed city at the time, had pretty good levees, but every levee they had failed multiple times, see for instance the 4 meg of straight text of Sacramento Union flooding-related stories at mjbarkl.com/union.htm (in progress, I’m up to the end of March, and some downtown neighborhoods that flooded starting 12/09/1861 were still flooded at the end of March 1862).

      The Yolo bypass has a capacity of 600,000 cfs, which is good, except that a larger “bypass” existed in 1861-62 in that nothing west of Sacramento was leveed so basically the west bank of the Sacramento was the Davis Ranch, now Davis. Over that winter wooden wind-powered schooners made water-borne deliveries as far west as what is now Woodland. We’ve narrowed channels with levees, raised the floors of many channels with mining debris, and controlled flooding well enough to produce large quantities of potential flood debris since channels haven’t been periodically scoured and that kind of debris produces debris-dams which also forces water over levees, etc..

      Scoff all you want, but the threat remains and all you’re doing is pretending it doesn’t rather than taking a good long look at what happened then, comparing it with flood control we have now, adding up the numbers for yourself, and then deciding if there is cause for concern and action. If the numbers tell you there’s no problem and you haven’t made a mistake in your calculations then good for you, just be careful where you buy a house. . . .


  • KimberlyAyers

    Thermonuclear indeed. Thanks for the walkabout and the peek inside that safe. Had no idea we had that provision in the state constitution.

  • bereniceweber

    47% of California’s water footprint is associated with meat and diary, and only 4% with household use. The water used to irrigate alfalfa and hay used for livestock feed exceedes the water used for all vegetables, berries, and fruits combined. There are numerous articles asking California, and the planet, to reduce the consumption of animal products and eating a plantbased diet, from the New York Times, United Nations, Scientific American, and the US Geological Water Science School. A typical veggie (soy) burger takes about 42 gallons of water to produce and contains 20g of protein, versus the thristy beef quarter pounder that needs 621 gallons of water and has about 18g of protein. The livestock business is one of the most damaging sectors for the environment, not only water wise. We need to save water apart from worring where it comes from, not running water while brushing your teeth is not enough, we need to Eat Less Water too!

  • Joseph Rizzi

    Simple fix to CA’s water shortage is water Restricting gates at the base of the Benicia Bridge. NOT stopping all flow, so Boats and fish can sill freely travel. This would add 7 million acre feet in a dry year and 34 million acre feet in wet years. we export 5 million acre feet south and 1.3 million acre feet is needed going to the bay to hold all the fresh water in the bay instead of the salt water intruding almost to the city of Sacramento.
    Lets look at real solutions? I have 4 more solution that can end our water shortages problems forever. like Natural Desalination – using only nature to Desalinate water.

  • AllenPalmer

    it is time for a ballot measure to reverse the current urban-farm 20-80% usage. Time to tell almond, alfalfa, wheat, rice, pistachio and other growers of high water usage crops that mostly get exported that they can’t grow the stuff. The very best to do that is to raise the price of water to the farmers so that it matches the urban costs. This will cut farm use ASAP and also eliminate the wasteful practice of overhead sprinklers. It is time for urban votes to take control of the state’s water. Why should urban users be saddled with the cost of desalinization plants so that farmers can continue to get cheap water. Let them build pipes to suck in sea water, pump it inland and then process it into fresh water, they use they can pay for it.

    • californucopia

      Telling farmers what to grow is essentially telling people what to eat. It also disrupts markets, causes shortages, and requires consumers to import foods they want to eat, often from great distances at great ernergy cost.

  • If they just use ocean water everything will work.

    Pump seawater from the pacific ocean to Death Valley. Problem solved. Surely it would only cost $64 billion or so. A dried up state does not need high speed rail. Look up seawater greenhouse or saltwater greenhouse. You get food, energy and clean water.

    Our eventual goal should be to replace all California’s agricultural water with seawater. Those who think this cannot be done have not done their homework on saltwater greenhouses and seawater greenhouses.

    “Innovative Ways to Deal with California’s Drought”

    • californucopia

      If energy is of concern, wouldn’t it make sense to put desalination plants on the coast for urban centers? These require the most energy to import their water from the Central Valley. Farms in the Central Valley require ver little energy to deliver their water.


Lauren Sommer

Lauren is a radio reporter covering environment, water, and energy for KQED Science. As part of her day job, she has scaled Sierra Nevada peaks, run from charging elephant seals, and desperately tried to get her sea legs – all in pursuit of good radio. Her work has appeared on Marketplace, Living on Earth, Science Friday and NPR’s Morning Edition and All Things Considered. You can find her on Twitter at @lesommer.

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