Outline of basic California water-rights laws and policies

 
The finance, insurance and real estate oligopoly in California has bought itself a Congressional bill to destroy the San Joaquin River Settlement. The settlement, which took 18 years in court and three years in Congress to reach accord on how to put water back into a 80-mile  reach of the San Joaquin River diverted by the FRiant-Kern Canal. The bill, H.R. 1837, passed the House Resources Committee last week.
A great wrong, set right again, could be set wrong again.
We thought we would revisit some of the most basic policies and laws governing California in light of this current attempt to return to the spirit of primitive accumulation.
The two poles of water rights in California are riparian rights and prior appropriation rights.
Riparian rights came from the Middle Ages through English Common Law to the American Colonies. Under the riparian rights doctrine, only people owning riverbank land had rights to use river water to drink, water their crops and livestock. People living away from rivers and streams used wells. Riparian rights did not imply any ownership of the river. Rivers were conceived of as belonging to God or to themselves. The riparian right was a seen as a use right, not a property right.
The appropriation of water from a river or stream is typically accomplished by a ditch that conveys the water elsewhere. In the arid West, wells alone could not do the job of either providing the water needed for mining or for irrigation. In the West, this ecological situation combined with a culture of individualism and a theory of property that was transforming the old, static, agrarian concept of entitlement to undisturbed enjoyment into a view of property that emphasized its productive use.
Between about 1865 and 1965 prior appropriation was seen as the doctrine that produced the most rapid economic development. For example, the federal Mining Act of 1866 conceded the right of prior appropriation on federal lands.
Prior appropriation doctrine was that whoever got to the stream first got to use as much of it as he could get and damn those upstream or downstream from him. To cope with the conflicts inherent in the doctrine, state governments in the West passed constitutions and laws defining the public interest in water and the concept of productive use was eventually modified into our more familiar “reasonable use.”

Colorado adopted a purely prior appropriation law, coming from its gold rush in 1857. It rapidly reached its logical conclusion: the man upstream had the most water and the worst soil while the man at the bottom had the richest soil and the least water.
As a result of this situation, common to the Rocky Mountain states, the Mormon Church in Utah and the states of Wyoming and Colorado first developed strong public power to organize water use according to prior appropriation rights.
Within the conflict over prior appropriation rights, by 1866 in California hydraulic mining was clearly ruining the rivers and streams and threatening the downstream agricultural future of the state. As the 19th century wore on, mining and ranching slowly ceded water and power to the “redeeming” force of irrigation.
Huge cattle ranches depended on riparian rights.
After the Civil War, land speculators bought up millions of acres of public land in California, dry farmed wheat on it or sold it to colonies of farmers, who developed irrigated agriculture. Two enormous land barons, Henry Miller of the Miller Lux ranches, and James Ben Ali Haggin, who with Lloyd Tevis formed the Kern County Land Co., clashed over water rights on the Kern River. Miller claimed riparian rights because he owned the land along the river; Haggin claimed rights of prior appropriation for irrigation.
The lawsuit, Lux v. Haggin, created the “California Doctrine” of water rights. Miller Lux won the suit; the cause of riparian rights was upheld, yet alongside rather than defeating the doctrine of prior appropriation.
The Mining Act of 1866 gave prior appropriation rights on federal lands bought by private individual, whle on state lands or on Mexican land-grant land that had been bought the doctrine of riparian rights prevailed. However, if the person had bought land and claimed water rights from public lands prior to 1866,  he was free to sell those rights as personal property.
After 1866, all grants of either state or federal land came under riparian doctrine, which meant that appropriators could only take as much water as riparian rights holders allowed. In Miller Lux v. Madera Canal and Irrigation Co, the court ruled  that the riparian proprietor “is not limited by any measure of reasonableness” in restraining an appropriator. It took a state Constitutional amendment in 1928  to establish the water-right doctrine of “reasonable and beneficial use” on state lands.
 
The Irrigation Act of 1887 was passed by farmers to counteract the overweening power of the riparian rights of ranchers like Miller. The Act permitted agricultural communities to organize as official governing bodies to construct and operate the irrigation systems they needed if two thirds of the local population voted for the measure proposed by 50 freeholders to establish a district.  Irrigation districts were also given taxing powers of eminent domain, of taxing and of selling bonds. However, the most important right they received was the right to extinguish other water rights in their district – including riparian rights – and to purchase them for the irrigation district.
The National Reclamation Act of 1902, considered by many to have been more important for the West than the Homestead Act, provided the funds from the sale of public lands be used for the construction of irrigation projects. It contained the provision that “No right to the use of water for land in private ownership shall be sold for a tract exceeding 160 acres to any one landowner (i.e. a single family), and no such sale shall be made to any landowner unless he be an actual bona fide resident on such land, or occupant thereof residing in the neighborhood of said land, and no such right shall permanently attach until all payments thereof are made.”
The Act provided much of the federal funds for the investment in the huge hydraulic system of California, considered to be the largest hydraulic engineering project on earth. The Central Valley Project contains 20 reservoirs capable of storing 13 million acre feer. Five million acre feet are are distributed to agricultural and municipal uses and 800,000 acre feet for wetlands and fish and wildlife habitat in rivers. The beneficiaries of the CVP, dominated huge agribusiness enterprises, have consistently violated the terms of the Act, under political protection purchased through bribery and corruption even after the Act was modified in 1982 to allow 960 acres instead of 160 acres and removed the requirement to live on the farm.
The State Water Project, passed as a bond proposition in 1960, is aimed primarily at supplying drinking water for two thirds of the rapidly expanding population of California (known as its New Gold Rush) through a network of storage reservoirs, lakes, rivers and canals funded by the state and users. The reasonable, benefitical use served by the project is real estate speculation.
These are the foundations of law and policy governing California water rights and the outstanding public works projects that arose from them.