By Rob Katherman
The Mountain Counties Water Resources Association Op-Ed (Daily Breeze, July 16, 2023), claims changes in California’s water rights system embodied in three current legislative proposals would have dire consequences and “would upend the water rights system that, while imperfect, has worked in California for more than a century.”
Nonsense.
Big Ag[riculture] wants to pretend that nothing has changed since 1914 and their “first in time first in right” is sacrosanct and the public has no right to question their water use even if the water supply in seven out of 10 years no longer supplies even average stormwater. By the way, the years before 1914 were part of the wettest 20 years in the past 1,100 years.
But climate change has forever changed the odds of getting normal or even average stormwater runoff from the Sierra Nevada Mountains. Runoff from the Sierra’s snowpack even in an average year is now reduced by nearly 50% from historic runoff averages due to higher air temperatures and the resulting thirstier plants and soil. These pre-1914 water rights claims divert more than 2.3 million acre-feet (about 100 billion gallons) annually from the Sacramento Delta Watershed, which is the equivalent of nearly half of the total water consumed by urban water users each year in the entire state.
Based on slapdash water practices of the gold rush era dating back 175 years, when owning or controlling property and nailing a piece of paper to a tree was enough to stake a water rights claim, pre-1914 water rights diversions to this day are self-reported or not reported at all, unverified, and unregulated. Nobody can say with certainty how much water is legally diverted, much less illegally diverted from the state’s rivers and streams.
In the grand scheme of things, that may not have mattered much in the second half of the 19th century. But it matters today. But unlike post-1914 water rights, claimed pre-1914 rights cannot be curtailed by the state even in times of extreme drought.
There is another point worth mentioning since it goes to the legitimacy of the water rights system the Mountain Counties op-ed embraces but does not talk about. Since indigenous tribes and people of color could not legally own property at the time, and ownership or control of the property was the basis for a water rights claim, the pre-1914 water rights system is a stark example of the inequity that is embedded in that system.
The legislation in question by Sen. Ben Allen (D-Torrance), Assemblywoman Buffy Wicks (D-Oakland), and Assemblywoman Rebecca Bauer-Kahan (D-Orinda) would bring the pre-1914 water rights system into the 21st century. They require pre-1914 water diverters to document the basis for their claimed rights, beef up the enforcement authority of the State Water Resources Control Board, increased penalties for illegal diversions, and include a forfeiture provision for repeated violations of diversion limitations. The bills would implement many of the recommendations of a distinguished panel of water rights experts convened last year by the Planning and Conservation League.
The legislation would not “upend the water rights system that … has worked in California for more than a century.” Rather, the legislation would bring order to the chaos of unregulated water rights claims and apply the same rules to all water rights claims and diversions, including those that may be 175 years old. It aligns an obsolete water rights system to the realities of climate change. It acknowledges the inequities embedded in such an exclusionary 19th-century system.
Needed reforms to our water rights system are more than a century overdue. The legislature should adopt the legislation that would implement those reforms.
Rob Katherman is an elected director of the Water Replenishment District of Southern California, a groundwater management agency serving 50% of the water needs of 4 million people in southeast Los Angeles County.