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California Water Law Disputes

Forget oil. The fight in California is over a much more precious, finite resource: water.

The latest chapter in California's water wars pits the state's agricultural industry against environmentalists and the fishing industry as the state tries to determine who should have priority: farmers or fish.

A popular rallying cry has been "people over fish" by those who believe that the farmers' interests should come first. Farms in the Central Valley are responsible for producing more than half of the country's fruit, vegetables and nuts. Recent droughts combined with cutbacks in irrigation supplies from state and federal water projects have put 23,000 farmers out of work and 300,000 acres of farmland out of use in the Central Valley.

Conversely, past water policies - most notably the dam systems on the Sacramento-San Joaquin River Delta - have threatened fish populations and all but killed the salmon fishing industry in Northern California. For the last three years, the state has had to ban commercial salmon fishing to protect the dwindling population of Chinook salmon. Some experts believe that two of the four seasonal salmon runs may go extinct from habitat loss if something is not done to change the Delta outflows and river inflows.

The state and federal governments are still trying to determine how to balance the interests of the farmers, the fish and the residents, if a balance can be achieved at all.

Unfortunately, this is only the latest round in the battle over water in California where the south and rest of the state looks to the north to provide its lifeblood. The complex system of local, state and federal water rights laws are partially to blame for the conflict between competing interests over the limited resources throughout the state.

Rights of Water Use

In California, water is considered the property of the state. This means that individuals, businesses and other entities can never own the water, but they can acquire rights to use the water.

There are two types of water use rights in California: riparian water rights and appropriative water rights.

  • Riparian water rights -the right to divert a portion of the natural flow of a stream, river or other body of water by the owner of property adjacent to the natural water source. Riparian right holders cannot store the water nor divert it for use on land that does not border the water. Riparian water rights are considered equal and concurrent rights - this means that all riparian users have the same rights to the water and in times of water shortage, they must adjust their use so as not to impact other right holders.
  • Appropriative water rights - the right to use, divert or store water that is not adjacent to the landowner's property. To have appropriative water rights, a license must be acquired from the State Water Resources Control Board upon a showing of a "beneficial use" for the water. Unlike riparian rights, appropriative rights may be senior or junior rights. However, those with senior rights may not change the use of the water or divert it to the detriment of those with junior appropriative rights.

Some examples of uses that have been deemed to be beneficial by the state include:

  • Domestic use for homes, resorts, campgrounds
  • Fish and wildlife, aquaculture
  • Industrial use for commerce, trade and industry
  • Irrigation, frost protection for agriculture
  • Heat control
  • Mining
  • Municipalities
  • Power
  • Recreation
  • Stock watering for commercial livestock
  • Water quality control

California Water Projects

The biggest problem in California is that the northern part of the state is water rich while the southern part is water poor. In order to balance this inequality, two huge water development systems were created: the California-run State Water Project and the federally controlled Central Valley Project.

Both projects use a system of dams, power plants, canals, conduits and tunnels to transfer and store water from the Sacramento-San Joaquin River Delta to other parts of the state.

The State Water Project provides water to two-thirds of Californians, including those living in the San Francisco Bay Area and Southern California. The Central Valley Project, on the other hand, delivers the majority of its water to farmers. The Central Valley Project was originally created by state engineers, but now is overseen by the Bureau of Reclamation.

The two California water projects have appropriative rights to use of the Delta waters. Their rights are junior to more senior rights, including those held by the City and County of San Francisco, Pacific Gas & Electric Company and Southern California Edison Corporation.

Enforcement of State Water Laws

The principal agency in charge of enforcing California's water rights laws is the State Water Resources Control Board, more commonly referred to as the "Water Board." The Water Board is in charge of allocating the state's water, principally by issuing permits and licenses for appropriation uses and declaring when watercourses have been fully appropriated. The Water Board also carries out water quality functions for the state.

The state court system also plays a role in enforcing water rights by adjudicating disagreements over the uses of percolating ground water, riparian use of certain surface waters, other conflicts over rights of use.

The Department of Water Resources is the state agency in charge of planning the use of the state's water supplies, including the State Water Project, and works with the Water Board to develop the rules and regulations for this purpose.

The federal government also plays a role in regulating the use of California's waters. For example, the Bureau of Reclamation is in charge of overseeing the Central Valley Project. The Environmental Protection Agency also oversees water quality issues. Several federal laws, including the Endangered Species Act (ESA), also impact rights of use to the state's water resources.

Conclusion

Those who live in California know that water is a finite resource and, unfortunately, there is not enough to go around. This causes significant friction between those who want and need water for what they consider to be beneficial uses - whether it is to supply water to urban areas, irrigate farmland or save a threatened fish population.

For more information on California water laws or help with a water rights dispute, contact an experienced environmental law attorney today.

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