A Solution for California's Water Woes 

During the drought, the state has failed to safeguard water supplies and the environment, and now there's a growing call to finally fix California's archaic "water rights" system.

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After all, the current system has helped propel the state toward a major crisis in which human population centers could become bereft of water, while fish populations — that only a half-century ago were relatively abundant — continue to plunge toward the dark abyss of extinction.

During the Gold Rush, miners who crowded into California's foothills found that water was essential for the pans, sluices, rockers, and other devices used to work promising gravels. But California's dry summers posed a serious obstacle. So miners decided to divert water, often from great distances, to ensure a profit from nature's bounty.

American westward expansion privileged the rights of the first arrivals to an area, including the promise that the first settler on public land had the right to buy a homestead for a low price. Similarly, the right to a gold claim went to the first person working it. "First in time, first in right" became a founding principle of California's legal framework. Known as the doctrine of "prior appropriation," it soon extended to the right to divert water to work a mining claim.

For irrigation needed for farming, shares were apportioned according to crude 19th-century notions of how much water was required to get forty acres of dry soil to produce a crop. In times of drought, those with the oldest, or most "senior," rights to water would get it first; those with the newest rights would have to wait at the back of the line. "Prior appropriation" remains the dominant principle in Western water law to this day.

Until 1914, California water rights were obtained either by purchasing land next to a river or by posting a noticed claim at the site of an intended river diversion or dam, and then recording that claim at the local county Recorder's Office. Beginning on December 19, 1914 — the start date for California's formal administrative system of water rights regulation that had been approved by voters — appropriative water rights came via an application with the state water rights board. Today, that authority is vested in the Division of Water Rights of the State Water Resources Control Board.

"Those who started development and use water first have first priority of rights," explained water board Assistant Deputy Director John O'Hagan, who heads the water board's water rights enforcement division. "That's where your stacking of rights and priorities to water come in. In a drought year like this year, where water supply is diminished to a point where there isn't enough water for all water rights in the system, the State Water Board looks to a curtailment process to make sure priority rights are satisfied first."

California is not alone in its use of prior appropriation for water, although it was first in the United States to adopt the system. And the resulting over-appropriation of water, critics say, has created long-term problems throughout the arid West. For example, when officials from seven states divvied up the rights to water in the mighty Colorado River nearly a century ago, it happened to be a wetter period than usual. The states, as a result, vastly overestimated the river's annual flow. Today, the river's reserves are especially low and states are still claiming rights to the same amount of water from the Colorado River that they always have — 1.4 trillion gallons a year more than the river actually produces.

In Southern California, water also comes from enormous canals that carry cargoes of Colorado River water like freight trains across the Mojave Desert to Los Angeles and San Diego, and to agricultural swaths of sameness in the Imperial Valley. These arid regions' reliance on imported water is almost unparalleled, and is often what comes to mind when thinking about the dysfunction and unsustainability of California's water system.

But the Sacramento-San Joaquin River Delta and San Francisco Bay, which make up the largest estuary on the West Coast of the Americas, are equally fraught with problems. The delta is where California's two largest rivers (the Sacramento and San Joaquin) culminate. It is also subject to one of the world's most staggering human-wrought manipulations of a watershed: an elaborate infrastructure of dams, reservoirs, power plants, pumping plants, canals, aqueducts, gates, tunnels, and other machinations designed to control exactly where water goes and who gets it.

In his classic 1952 novel East of Eden, which explored the lives of Anglo-American families living in the Salinas Valley between the late 1800s and World War II, John Steinbeck offered this succinct summary of Californians' relationship with water: "And it never failed that during the dry years the people forgot about the rich years, and during the wet years they lost all memory of the dry years. It was always that way."

If Steinbeck had been writing about state and federal water managers and how they've handled California's water supply, he might have instead written the following: "And it never failed that even during the dry years they assumed the next year would be a rich year, and during the wet years they lost all memory of the dry years. It was always that way."

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