History of the Water Boards
The Early Years of Water Rights
California water rights law is different from the laws governing water use in the eastern United States. Seasonal, geographic, and quantitative differences in precipitation caused California’s system to develop into a unique blend of two different kinds of rights: riparian and appropriative. Other types of rights exist in California, among them reserved rights (water set aside by the federal government when it reserves land for the public domain) and pueblo rights (a municipal right based on Spanish and Mexican law).
Riparian rights entitle the landowner to use a share of the water flowing past their property. While riparian rights require no permits or licenses, they apply only to the water that would naturally flow in the stream and they do not allow the user to divert water for storage or use it on land outside its watershed. Riparian rights remain with the property when it changes hands.
Water right law was set on a different course with the Gold Rush. The ‘49ers built extensive networks of waterways to work their claims. The water carried in these systems had to be transported far from the original river or stream. The self-governing miners applied the “finders-keepers” rule to water.
To stake their water claims, the miners developed a system of “posting notice” which signaled the today’s appropriative right system. It allowed others to divert available water from the same river or stream, but their rights existed within a hierarchy of priorities. This “first in time, first in right” principle became a feature of modern water right law.
When California entered the Union in 1850, one of the first actions taken by its lawmakers was to adopt the law of riparian rights. One year later, the Legislature recognized the appropriative right system. The appropriative system continued to increase as agriculture and population blossomed and ownership of land was transferred into private hands. This is the basis of a series of disputes which have continued today.
The conflicting nature of California’s dual water right system has prompted legal disputes. Unlike appropriative users, riparian right holders were not required to put water to reasonable and beneficial use. This clash of rights resulted in a constitutional amendment requiring all water use to be “reasonable and beneficial.” These “beneficial uses” include municipal and industrial uses, irrigation, hydroelectric generation, livestock watering, recreational uses, fish and wildlife protection.
Up to the early 1900s, appropriators – most of them miners and non-riparian farmers – had simply taken control of and used what water they wanted. Sometimes notice was filed with the county recorder, but no formal permission was required from any administrative or judicial body.
The Water Commission Act of 1913 established today’s permit process and created the agency that evolved into the State Water Board. That agency was given the authority to administer permits and licenses for California’s surface water.
Riparian rights still have a higher priority than appropriative rights. The priorities of riparian right holders generally carry equal weight and during a drought all share in the shortage.
In times of drought and limited supply the most recent (“junior”) right holder must be the first to discontinue use; each right’s priority dates to the time the permit application was filed with the State Water Board. Although pre- and post-1914 appropriative rights are similar, post-1914 rights are subject to a much greater degree of scrutiny and regulation by the Board.
The State Water Rights Board, created in 1956 as part of the same legislation that created the Department of Water Resources (DWR), recognized that the Department would hold water rights and operate water project facilities. The Legislature created an independent board to administer the water right functions to avoid a conflict of interest by the Department.
California has no permit process for regulating groundwater use. Before 1903, the English system of unregulated groundwater pumping had dominated, but proved to be inappropriate to California’s semi-arid climate. In most areas of the state, landowners whose property overlies groundwater may pump it for beneficial use without approval from the State Water Board or a court. In several Southern California basins, however, groundwater use is regulated in by court decrees. In the 1903 case Katz v. Walkinshaw, the California Supreme Court decided that the “reasonable use” provision governing other types of water rights also applies to groundwater.
Continue to The Early Years of Water Pollution Control