In the summer of 1901, San Francisco’s mayor, James D. Phelan, hiked up to an oak tree near the north bank of the Tuolumne River in Yosemite’s Hetch Hetchy Valley, and nailed a piece of paper to the trunk.
The paper said the water flowing by it belonged to the city of San Francisco. So, if you’ve ever wondered why San Francisco gets first dibs to water almost 200 miles away – it’s because of a piece of paper nailed to a tree in 1901.
How California water rights were born
“The first large-scale use of water in California was for mining,” says U.C. Berkeley Professor of Environmental and Resource Economics, Michael Hanemann. Hanemann is writing a book on California's water rights – and how this paper-to-tree system took hold.
When miners showed up in California in 1849, they looked for gold in streams and rivers. And they posted dated notices near the places they were looking to call dibs.
“Then we moved away from the rivers to try and get at the source of the gold, which was seams of gold in mountains,” Hanemann says. “And the technique was to take water and spray it under high pressure to wash away the hillside to get at the gold.”
Where at first miners had just been claiming the spot on a river where they were actually looking for gold, now they started claiming the water and moving it. They would still post a notice saying when they got there and also how much water they were taking.
Hanemann says this system actually worked pretty well. So well, that when the next large-scale water users showed up – cities and farmers – they just jumped on board with the same system. And that's how the problems started.
The miners didn’t claim their water forever. When the gold ran out, they pulled up their signs and moved on. But farmers typically don't move on.
“You're interested in using this water on an ongoing basis, for the next 100, 200, 300 years,” Hanemann says.
Suddenly a whole lot more people want a whole lot more water. And there was another problem: no one was really keeping track of the water claims.
“We have claims on sticks in the ground and after you know 10 or 20 years, it's possible that a piece of paper falls off,” Hanemann says. “We don't have central records.”
In other words, for more than 50 years, California’s system of record keeping for water relied on people remembering that one time there was a sign next to a river somewhere.
In 1914, the state tried to formalize things. They said everyone with pre-1914 rights was first in line for California’s water. They had what’s called senior water rights – and they still have them today. Then, the state started handing out new rights: first come, first served. Those new rights were called junior rights. But when it came to how much water was left to hand out, the state was guessing.
“Nobody really knows the amount of water with the pre-1914 rights,” Hanemann says.
Sorting out the water rights
“It’s long been known that the total volume of water that’s been granted to the water rights system greatly exceeds natural supplies,” says Ted Grantham of United States Geological Survey.
Grantham researched California’s water rights at the U.C. Davis Center for Watershed Sciences. There, he and a colleague found that California has promised people five times more water than it actually has. And that’s just for the post-1914 rights.
So why can someone still get a water right today if all the water is already spoken for?
Grantham says that “while at a statewide level you see this general pattern of over-allocation, for an individual river basin there may actually be additional water available.”
Essentially, each river has its own line of people who want water. Some lines are really long, like on the Sacramento and San Joaquin rivers, which supply about two-thirds of the state – Grantham and his partner figured out that the water in those rivers is claimed 10 times over. But other lines aren’t so long.
Still, getting a water right today is no guarantee of water. Last year, after three years of drought, the state told junior rights holders to stop taking water, because there wasn’t enough to satisfy all the claims. And now, even those with the most secure water rights are struggling.
Senior rights holders threatened
Al Courchesne runs Frog Hollow Farm in Brentwood, an area where rights outnumber water by 10 times.
The farm is an explosion of color – green pears, orange apricots, red tomatoes. Lucky for Courchesne, he gets his water from an irrigation district with senior water rights. But earlier this summer, the state did something it’s done only once before – it started telling senior water rights holders to stop taking water.
When Courchesne’s irrigation district got cut off, it had to start buying water from another district – one with even more senior rights. So Courchesne still has water, but it costs a lot more.
“That's about $12,000 in irrigation, whereas before it was costing us $1,500,” Courchesne says. “And it's going to really bite into our ability to make a living here as farmers.”
It’s making it hard for some residents, too. Not far from where Courchesne lives is a suburb called Mountain House. They also ran out of water and had to scramble to buy some from a nearby district. They found enough to get through the summer, but it’s not a good long-term solution.
If the drought goes on, this situation is going to become more common. It already happened in the Bay Area; the East Bay Municipal Utilities District raised rates to buy extra water.
As for whether Courchesne is willing to take less water so others could have more, he says: “That's like asking, ‘Should we not eat food?’ Remember farms are what produce food.”
Only one tool?
Courchesne’s irrigation district is suing the state to get its right to take water back. Around the state, other senior rights holders are planning to do the same thing. U.C. Berkeley’s Michael Hanemann says lawsuits are the only tool water rights holders can use to settle disputes. And, they’re a bad tool.
“So suppose there are eight water users along a stream, but two of them happen to get into a dispute and sue one another and the judge rules in favor of one of the two parties,” he says. “The two parties might be junior to all the other six parties, but the court doesn't know that and doesn't grant the other six parties any rights because they're not in court.”
Hanemann says this just leads to more disorder.
But there’s a place in California that’s tried something different, down by the Kings River in the Sierras.
They made a list “of all the water users, the dates which give their seniority, and the amounts of water that attached to their right,” Hanemann says.
Hanemann says California needs to do what the Kings River rights holders did: make a real list of all water rights holders in the state. Not the patchwork of incomplete information we have right now.
That way, if the water supply gets low, we know with certainty who gets the water and who doesn’t. Getting that list would take a lot of work. But Hanemann says that if we could get that list, we might then consider going one step further and doing something like Australia did.
“We all have percentage rights,” Hanemann explains. “Some may have rights to a large percentage others to a small percentage.”
Tom Howard, Executive Director for the State Water Resources Control Board, says there’s a lot to think about before overhauling the rights system, like the many people who have established businesses based on a set amount of water they expect to get – people like Al Courchesne. But Howard says there are ways to make our current system better, like better oversight, putting more gauges on streams that measure water level more precisely, and making that accurate list of water rights holders.
“You don't need any change in law in order to put these things in place,” Howard says, “but you do need to dedicate the resources necessary to put them in place and you know it's just that there hasn't been the will to do it.”
At least, not yet.