Friday January 26, 2024

The National Law Review

An ongoing, historic drought in California has compelled California state legislators to rethink the state’s long-standing treatment of water rights. While the recent heavy snowpack and wet spring and summer have alleviated the extreme drought conditions for now, the changing climate leaves California susceptible to future long and extreme droughts. Due to these realities, the California legislature has proposed numerous bills this session that address water rights. Senate Bill (SB) 389, Assembly Bill (AB) 779, AB 1337, AB 460, and AB 1205 were proposed during the 2023 legislative session to increase the regulatory power of the California State Water Resources Control Board (the State Board). Although each bill was weakened over the course of the legislative session and only one became law, they reflect a desire to address the current water rights system in place. 

California has a unique and paradoxical approach to surface water rights; both appropriative and riparian rights are recognized, but only some are subject to regulation.1 Riparian rights entitle a landowner to a correlative share of water from a stream physically adjacent to the land. In California, riparian rights may be exercised by a landowner without a permit, license, or government approval. On the other hand, an appropriative right, or “first in time, first in right,” is based on physical control and beneficial use of water rather than land ownership. Most Californian appropriative rights require a permit from the State Board,2 and those rights are subject to regulation and curtailment in times of drought. However, appropriative rights perfected before 1914 are not subject to any permitting requirements or regulatory oversight because these rights were established before California adopted an official water code. This counterintuitive, and sometimes contradictory, system of surface water rights has come under greater scrutiny in recent years as California continues to struggle with increasing water shortages that, while alleviated for the near future, remain a reality for the long term as the state contends with climate change. 

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