Water’s for fightin’ over
California law treats surface and groundwater differently
Water rights in California are notoriously screwy.
Because much of the water code was developed in the chaos of the gold rush, California water law is a unique and confusing assemblage of regulations that stemmed from the appropriation rules of miners. Initially, only surface water was regulated, based on the principle of “first in time, first in right.” In the late 1800s, this doctrine of “prior appropriation” meant that anyone who could go up in the mountains and find a lake had the right to divert that water for whatever purpose he wanted, so long as he had a “beneficial use” for it. The first user of that water had the right to use as much as he could find a use for, and the users downstream had secondary rights. If the first appropriator can find a beneficial use for all the water—not an unlikely scenario in bad drought years—the secondary users are out of luck.
What constitutes a beneficial use has always been somewhat debatable, especially since the most common use of diverted water before 1900 was in the environmentally destructive and water-intensive practice of hydraulic mining. As gold became scarcer, the state’s economy became more centered on agriculture, and those with the original rights to the water began offering it to farmers, who were allowed to form irrigation districts to pay for canal construction and paid a fee to use the water. Water rights are transferable, so there are still some entities holding pre-1914 rights, which are not subject to the same regulations as those granted after 1914.
Groundwater rights are a different animal altogether. If you have water underneath your property, you have the right to extract it as long as you have a use for it, but you don’t actually own the water. The nature of groundwater is such that one user with a deep well can lower the water table for an entire region.
That’s why Butte County enacted Measure G, which prohibits farmers from drawing water for the sole purpose of selling it to an entity outside the county. But they can still either fallow their fields and sell unused surface water or substitute groundwater for surface water.
Then there is Butte County’s water allotment. Back when the state built the Oroville dam, it agreed that Butte County could have 27,500 acre feet of the water in Lake Oroville if it could find a use for it. But the county has never found a use for the full entitlement, so the state sends most of it south through the State Water Project aqueduct.
With water prices rising and the county going broke, people are increasingly asking what, if anything, the county can do with “the 27/5,” as water insiders call it. Some proposals making the rounds lately involve using the 27/5 to help recharge the aquifer. While sources say that idea has legs, nobody will say for sure how or when it will be done.—J. I.