How do California’s complicated
water rights affect our daily lives?
California is an arid state that ex-
periences regular cycles of drought
and flood. In addition to the variable
hydrology, we also have a mismatch in
the state between where the water orig-
inates and where the people live. Most
of our water originates in the northern
parts of the state and in the eastern
Sierra, and most of the people live in
Southern California and along the coast.
So we need to address several kinds of
scarcity — annual scarcity, seasonal
scarcity and geographical scarcity —
and we know we have all these differ-
ent needs for water … urban and ag
and commercial and institutional and
hydropower and environmental and
recreation. Water rights are the rules by
which we decide how much water gets
delivered to which part of the state, and
which of those uses gets allocated how
much water. … This is directly relevant
to people when you go to turn on your
tap, how much water comes out, how
clean that water is, whether you have
sufficient water to irrigate your land-
scaping, to run your business, to grow
food and fiber — water rights determine
all of these things.
Your courses focus on “policy implica-
tions of legal rules and skills needed
for real world practice.” What does
that mean?
Every legal rule implements a policy
choice. It implements some underlying
value. An example of this is one of the
key water rights in California is called
an appropriative water right. Appropri-
ative rights are allocated based on the
rule of priority, which means the person
who diverted water first has the best
right to the water. We call that the prin-
ciple of “first in time, first in right.” This
is one of the oldest rules in California. It
One of the things that we have
not done very well in this state
is to talk about water when we are
not in a state of crisis. … We need
to remember that drought is not an
exceptional occurrence in California.
… We need to understand that we
can’t be reactive just during drought,
we need to be planning for drought
during times of plenty.
goes back to at least 1855, perhaps older,
shortly after California became a state.
This rule — first in time, first in right —
is grounded in a policy, it’s grounded in
a value choice, and that policy was to
encourage people to invest in projects
that will translate natural resources
into social values, into social good. For
example, in the early 20th century, you
had hydropower companies that were
investing in construction of reservoirs
and construction of other systems to
move water to generate electricity that
then fueled the growth of our cities and
the city economies, which provided
public benefits and supported improved
quality of life in California. But at the
same time, California has a constitu-
tional water policy, (which) mandates
that all water be used reasonably — the
rule of reasonable use — and to the
fullest extent possible. … It recogniz-
es the scarcity of water in California.
These rules implement other policy
choices, other values, that favor broad
distribution of water and putting water
to its highest and best use, regardless of
underlying priority. So this gives us the
flexibility to change water allocation
when we need to. So, you can see, we
May 2020 | comstocksmag.com
21