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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The water board also announced cutbacks last month on water use by senior water rights holders dating to 1903, including more than 150 water rights holders in the San Joaquin and Sacramento valleys, and even the City of San Francisco, which draws water from Yosemite National Park. It's the first time since the punishing drought of 1977 that the state has curtailed senior water rights.

But, according to critics, these measures only scratch the surface. The many problems inherent in the state's existing water rights system run deep. For example, in the case of the Russian River, the state has restricted water use for residents but not for irrigated agriculture — namely, vineyards. Instead, the regulations call for a cessation of ornamental lawn watering in an area that features some of the fewest ornamental lawns per residence of any area of the state

"The State Water Resources Control Board is regulating lawns? What lawns? I challenge you to find ornamental lawns in the Dutch Bill, Green Valley, and Atascadero Creek watersheds," wrote Occidental resident Ann Maurice in a recent letter to the water board. "It is not grass that is causing the problem, it is irrigated vineyards."

Moreover, environmentalists note that under the California constitution, water uses must be reasonable. "No one has a right in California to use water unreasonably, not even the federal government," Stroshane said.

And under the Public Trust Doctrine, the state government is obligated to protect public trust resources, including water and rivers. There is also legal precedent in California for using the doctrine to abrogate the water rights of private interests in order to protect the environment.

The case concerned one of the defining issues of California's turbulent water history: the draining of the creeks that feed Mono Lake — a unique saline-soda lake that's historically been home to an enormous abundance of wildlife — by the City of Los Angeles. In 1983, in the landmark case National Audubon Society v. Superior Court, the California Supreme Court ruled that, in light of environmental laws, Los Angeles had to give up its water rights and restore Mono Lake. The justices also ruled that state officials have the power to protect public trust "values," including environmental, recreation, and aesthetic ones, when regulating the use of water.

As many critics of California's water rights system note, the public trust doctrine also provides a promising framework for radically reenvisioning how water is apportioned, particularly as climate change and the promise of persistent droughts press the limits of increasingly diminished supplies.

"We're living in a 21st-century world with a 19th-century rule," said Bobker of the Bay Institute. "It's past time for us to reexamine the entire water rights system, and start to link it to how wasteful or reasonable your water consumption is."

One possible avenue for elevating the public trust doctrine's status is the adjudication of water rights — the legal process to determine who has a valid water right, how much water can be used, who has priority during shortages, and even whose water use is reasonable and whose is not. Other states have adjudicated their watersheds. And a years-long adjudication process on the main stem of the Klamath River in Southern Oregon led to a settlement deal that calls for the removal of four hydroelectric dams in order to safeguard the environment and the fishing rights of native peoples.

As Bobker acknowledged, though, such a reevaluation on California's other rivers will not happen until people demand it, including Bay Area residents, whose unique bay-delta ecosystem is being threatened. He noted that changing the state's water rights system has long been considered untouchable in California. Then again, so was the regulation of groundwater. Last year, California finally joined the ranks of every other state in the nation when the governor signed legislation to establish "sustainable groundwater" regulations by 2025 (although most environmentalists regard the legislation as woefully inadequate).

Last August, the California Sportfishing Protection Alliance filed a formal complaint with the State Water Resources Control Board alleging that the California Department of Water Resources and US Bureau of Reclamation have been illegally diverting and exporting water, because the two water managers actually have junior water rights compared to many California water users. The alliance asked the water board to investigate and curtail these diversions, and also formally petitioned the water board to initiate a legal adjudication of the Central Valley's oversubscribed waters.

The complaint could conceivably lead to exactly the outcome that an increasing number of environmentalists, indigenous people, and fishermen have been calling for. If the State Water Board rules against the complaint by the California Sportfishing Protection Alliance, then the alliance will have standing to sue to compel the adjudication process to begin, with a goal of bringing water demand into balance with supply.

But others point out that while adjudication is an important step, it must also be accompanied by a popular movement that emphasizes a new relationship with water. According to Bobker, the Bay Area will need to be a locus of water activism from now on. To Tim Stroshane, the issue is tied to the larger system of global capitalism.

"You may imagine that you go to a river and you experience it flowing at one time or another," he said. "But whatever the state of that river is, it reflects an active intervention of economic interests into the life of that river. There's a political economy of each river throughout the West, and throughout the world, and California's may be one of the most warped in favor of wealthy interests."

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