Water right law in California and the rest of the West is markedly 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 very different kinds of rights: riparian and appropriative. Other types of rights exist in California as well, 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 usually come with owning a parcel of land that is adjacent to a source of water. With statehood, California adopted the English common law familiar to the eastern seaboard; such law also included the riparian doctrine.
A riparian right entitles the landowner to use a correlative share of the water flowing past his or her property. Riparian rights do not require permits, licenses, or government approval, but they apply only to the water which would naturally flow in the stream. Riparian rights do not entitle a water use to divert water to storage in a reservoir for use in the dry season or to use water on land outside of the watershed. Riparian rights remain with the property when it changes hands, although parcels severed from the adjacent water source generally lose their right to the water.
Water right law was set on a different course in 1849, when thousands of fortune seekers flocked to California following the discovery of gold. Water development proceeded on a scale never before witnessed in the United States as these “49ers” built extensive networks of flumes and waterways to work their claims. The water carried in these systems often had to be transported far from the original river or stream. The self-governing, maverick miners applied the same “finders-keepers” rule to water that they did to their mining claims. It belonged to the first miner to assert ownership.
To stake their water claims, the miners developed a system of “posting notice” which signaled the birth of 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” principal became an important feature of modern water right law.
In 1850, California entered the Union as the thirty-first state. One of the first actions taken by its lawmakers was to adopt the common law of riparian rights. One year later, the Legislature recognized the appropriative right system as having the force of law. The appropriative right system continued to increase in use as agriculture and population centers blossomed and ownership of land was transferred into private hands.
The conflicting nature of California’s dual water right system prompted numerous legal disputes. Unlike appropriative users, riparian right holders were not required to put water to reasonable and beneficial use. This clash of rights eventually resulted in a constitutional amendment (Article X, Section 2 of the California Constitution) that requires all use of water to be “reasonable and beneficial.” These “beneficial uses” have commonly included municipal and industrial uses, irrigation, hydroelectric generation, and livestock watering. More recently, the concept has been broadened to include recreational use, fish and wildlife protection, and enhancement and aesthetic enjoyment.
Up to the early 1900’s appropriators – most of them miners and nonriparian 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 1914 established today’s permit process. The Act created the agency that later evolved into the State Board and granted it the authority to administer permits and licenses for California’s surface water. The act was the predecessor to today’s water Code provisions governing appropriation.
These post-1914 appropriative rights are governed by the aforementioned hierarchy of priorities developed by the 49ers. In times of shortage the most recent (“junior”) right holder must be the first to discontinue such use; each right’s priority dates to the time the permit application was filed with the State 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.
Riparian rights still have a higher priority than appropriative rights. The priorities of riparian right holders generally carry equal weight; during a drought all share the shortage among themselves.
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