It’s My Damned Water

Historically under British and then American common law, “rights to water are part and parcel of title to the land adjoining or ‘riparian’ to the water-course; the riparian landowner is entitled to use water from the watercourse, but must share the water with other riparian landowners; and the water may be used only on riparian parcels of land located within the watershed.” 1978 Report from the Governor’s Commission to Review California Water Rights Law. For jolly old England, land of rain and fog, fighting over water rights was both unnecessary and ungainly. That sentiment tracked water usage into the New World, and mostly, into American law. 

But in water-impaired regions of the United States, that notion of water rights fell by the wayside. California soon became the poster-state for “first to claim” rights, heavily influenced by the Gold Rush era of very heavy water usage and Wild West battles for land ownership. The aggregation of this aggressive redefinition of water rights continues into the present day, even as wells and aquifers run dry, lakes and reservoirs drop precipitously, and overdrawing of existing supplies pits thirsty cities against farmers with fallow fields. As evidenced by the concerns set forth in the above 1978 Commission Report, issued long before climate change became a global priority, water shortages have been a severe problem in California (and other water-impaired states) for a long time.

Water rights battles almost resulted in a shooting war. In 1934, Arizona sent 100 soldiers from its National Guard (pictured above, an old LA Times photo) to stop California’s construction of the Parker Dam on the Colorado River. The case made its way to the Supreme Court which sided with Arizona in April 1935. A negotiated compromise allowed the work to be resumed. Eventually, an accumulation of accords and treaties in the Western states settled these uneasy (even into the present day) pulls for increasingly scarce water. A report from Colorado State University summarizes the extent of these agreements:

“As they relate to water resources, different types of compacts and interstate agreements are intended to equitably divide and apportion waters within and between states in order to settle existing or future controversy concerning the utilization of those waters. Colorado has numerous intrastate agreements among its stakeholders, and in terms of its interstate waters, nine interstate compacts, two Supreme Court equitable apportionment decrees, two memoranda of understandings/agreements and two international treaties govern how much water the state is entitled to use and consume (Colorado Division of Water Resources [DWR], 2006; Colorado Water Conservation Board [CWCB], n.d.; State of Colorado, 2015; Colorado Foundation for Water Education [WEco], 2015). Although these different compacts and agreements determine the amount of surface water allocated between and within each state, due to the connected, inter-dependent nature of surface and groundwater, they also impact how much groundwater can be pumped by each state.”

Enter accelerating climate change, sucking the snow off mountains and glaciers and creating erratic but substantially less desperately needed precipitation in the Southwest. Hotter, dryer, unforgiving. Vulnerable wildlife faces extinction. Water shortages also negatively impact those at the bottom of the economic ladder the most. Academic and scientific experts have gathered to present a plan of action to the California legislature.

“‘We are in a time of crisis. We have a climate crisis, we have wildfire crisis, and we have droughts intensifying over time,’ said Jennifer Harder, a member of the group and a law professor at University of the Pacific’s McGeorge School of Law… Harder and other lawyers in the group said they expect to face resistance but hope the unrelenting drought may help build support for changing California’s water laws. The group said in a 43-page report detailing their recommendations that they’re suggesting a ‘focused approach to updating existing laws, regulations, and funding.’…

“Under the current system, the State Water Resources Control Board considers historical stream flow data in decisions about water rights permits, but that ‘is no longer defensible’ as climate change leaves less flowing in watersheds, said Clifford Lee, a former state deputy attorney general who was one of the report’s authors… ‘Climate change will result in less precipitation as snow; shift peak runoff from historical patterns to earlier portions of the year; shorten the precipitation season; and increase the intensity and frequency of drought,’ Lee said. ‘There simply will be less water in the future.’

“He said relying on historical water data to estimate future flows is the ‘Waiting for Godot fallacy… As you all know, from the Samuel Beckett play, Godot never arrives,’ Lee said. ‘And that is the problem with using historical data to determine future flow. The flow is not going to arrive.’

“The [experts] recommended giving the state water board new authority to selectively investigate these water rights claims. Lee said this change would align California with other western states and make for a ‘more unified water rights system.’… The [Report’s] lawyers recommended that California initially start real-time monitoring of diversions in at least two watersheds, then consider whether to expand tracking to other areas… Another problem with the current system, they said, is that the state water board is unable to investigate the water rights of some of the state’s major water users — the most senior rights holders with pre-1914 claims — to determine whether they are valid, or whether some water users might be taking more than they should.” Ian James, writing for the February 13th Los Angeles Times. 

The constituents range from those frozen out of water rights priorities, those who’ve never had them and those whose water rights just plain dried up. Expect litigation and tons of resistance. It gets worse from here… much worse. California hasn’t really revised its water laws in well over a century. It’s a very touchy matter.

I’m Peter Dekom, and here in the United States and certainly the rest of the world, the fight for water and water rights will get uglier, more vituperative and probably more violent in the desperate years to come.