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15th August 2015

As California dries up, the state government and lawyers are once again considering whether or not California’s government has the right to restrict or eliminate water rights, particularly senior water rights, without compensation when it is in the public interest to do so. Lawyers for irrigators have long pointed to the U.S. Constitution’s 5th Amendment - “no property shall be taken without just compensation” - to defend their senior water rights holding clients, arguing that water rights are “property” that cannot be restricted without just compensation under the U.S. 5th Amendment.

Environmental lawyers and most academics disagree, arguing that California is merely enforcing rules to address the state of emergency during a drought, but also that water rights are not in fact “private property” rights under California law, but only limited rights to the use of water that continues to be owned solely by the state, and is thus subject to primary Public Trust obligations and beneficial use restrictions, including emergency restrictions during a drought.

To date, the California Supreme Court has routinely opposed the irrigators’ theory of law, deeming water rights in California only limited rights to beneficial use, and thus subject to various restrictions, including emergency cutbacks due to drought. However, after a recent U.S. Supreme Court ruling in a government raisin program which sided with a farmer on this issue, agricultural property rights groups are confident they now have a case for keeping their senior water rights as “private property,” thus requiring “takings” compensation when they are restricted.

The California State Water Resources Control Board has already issued emergency orders to roughly 9,200 water rights holders this year to stop diverting. Around 100 senior water rights holders were also told between May and June to stop diverting water for Central Valley agriculture from the Sacramento-San Joaquin River Delta and tributaries-a waterway which also supplies drinking water for about 25 million people and 3 million acres of other farmland, and supports a billion dollar salmon fishing industry in California and Oregon.

Court cases have been popping up around the State against these restrictions, and many more are likely to be filed. The question that most court cases will ride on is this: is a water right a true “property right,” or is it merely a right to the use of water for certain beneficial purposes subject to ultimate State ownership and control?

Which legal theory prevails is all the more important in water-starved California because for many decades water rights were distributed with little or no consideration or controls over cumulative impacts, supply restrictions or environmental damages that might result.

Estimates from several recent studies of the water rights records in California have estimated that the rivers of the state are now over-appropriated by between 5 to 7 times. In other words, the total volume of water that could be legally extracted from all existing rivers in California now exceeds the total water available each year from all of California’s rivers by between 5 to 7 times!

During the current severe drought, the many contradictions of California’s convoluted water rights system have hit all the harder.

California is also the only state in the United States that does not control its own groundwater by state law or state agency, but instead gives sole authority to distribute groundwater well permits on a county-by-county basis. This has also resulted in a massive “race to the bottom” of the many aquifers in the state that span more than one county, severely depleting groundwater supplies in many regions of the state just when water users are turning to groundwater to supplement depleted rivers during the ongoing drought.

Only last year did California Legislators tried to address this problem, taking the first halting steps - often against great political resistance - to bring California’s aquifer depletion problem under unified state regulation.