by Denis B. Binder
Gold was discovered at Sutter’s Mill on January 24, 1848. Forty-niners poured into California. The image of a forty-niner panning for gold portrays a historic but highly inefficient method of gold mining. Edward Matteson devised in 1853 “hydraulic mining” in which a hose shoots high pressure water on the side of a hill sending the soil and rocks into a sluice wherein the gold sinks to the bottom. The tailings were discharged into the state’s rivers.
Water rights in England were riparian. They belonged to the adjacent landowner. Riparian rights were adopted by the East Coast colonies, whose topography and weather mirrored those of England. The arid West was the opposite. The miners and farmers needed water, which often did not abut their claims and lands. They took water from wherever they could.
The California Supreme Court in 1855 adopted the prior appropriation rule.1 The first in time is first in rights. Appropriation rights, unlike riparian rights, do not have to be used on adjacent lands. Mining companies, farmers, and ranchers have high priority water rights in much of California. Low priority appropriators are the first cut off in droughts.
Two early cases are critical for California water law. Hydraulic mining was the first major environmental battle in the United States. Hydraulic mining was highly devastating to the environment. Bare hillsides still exist 150 years later. Hills were denuded of vegetation. Fertile lands became deserts. The Sacramento River was clogged with debris. Flooding in the Central Valley was intensified by the clogged streams. A sand bar formed off the entrance to San Francisco Bay.
The clogging of the river channels with mining wastes also periodically flooded farmlands of the growing agriculture industry. A farmer sued the North Bloomfield Gravel Mining Co., the largest hydraulic mining company. The resulting 1884 court decision2 limited hydraulic mining. The case features the first environmental injunction in United States history. Judge Sawyer’s injunction barred defendants from “discharging or dumping into the Yuba River . . . Tailings, bouders [sic], cobblestones, gravel, sand and clay debris or refuse matter.”
Congress followed up in 1893 with the Caminetti Act3 which allowed hydraulic mining “whenever and wherever it can be carried on without material injury to navigable streams or the lands adjacent thereto.” Permits were required from the California Debris Commission to engage in hydraulic mining. The Ninth Circuit upheld the statute in 1887 pursuant to Congress’ powers to regulate commerce under the Commerce Clause. 4
Water law became confusing in a dispute between two of California’s largest landowners. Henry Miller and Charles Lux owned about one million acres in the Central Valley, which they used for ranching. They acquired thousands of acres of non-swamp “swamp lands.” They further acquired lands for the attached riparian rights. They were known as the “Cattle Kings” of California.
James Ben Ali-Haggin owned more land than Miller and Lux. His company became the Kern County Land Company. Miller and Lux lost thousands of heads of cattle during the severe drought of 1876. They blamed Ali-Haggin for diverting water upstream in violation of their riparian rights.
In 1884, the California Supreme Court in a record-setting, 199-page opinion held appropriation rights are subservient to riparian rights obtained before the appropriation rights.5 California, through an evolution of statutory enactments, now requires all new water rights to be obtained from the state—a permit system that preserves existing rights.
The California Constitution was amended in 1928 to require water be used in a reasonable and beneficial use, and not wasted. Water rights in California are usufructuary. Ownership remains in the federal and state governments.
Groundwater Water is water. It flows between the surface and underground. Surface water can percolate or be pumped into the ground. Water districts store water in underground aquifers. However, groundwater and surface water are regulated separately. The Clean Water Act essentially leaves groundwater management to the states.
The pumping of groundwater is a prime example of the tragedy of the commons. The rule of capture applies to groundwater. Groundwater aquifers decades ago seemed infinite like the forest in the early days of America. California’s seasonal and cyclical droughts increase reliance on groundwater, especially in the Central Valley.
California responded to the depletion of its groundwater resources in 2014 by enacting the Sustainable Groundwater Management Act. The intent is to develop and implement a sustainability plan. The required plans will achieve sustainability by 2040, which is a slow response to an emergency.
Colorado River The construction of dams and reservoirs and diversions of the Colorado River as it flowed through or bordered seven states into Mexico necessitated a Congressional allocation of the waters. The Supreme Court held in the June 1922 case of Wyoming v. Colorado that prior appropriation would allocate the waters between the states irrespective of the individual laws of each state.6
Congress, on August 19, 1921, authorized an interstate compact between the seven states in the Colorado Basin. Secretary of Commerce Herbert Hoover engineered in 1922 the Colorado River Compact between the seven states with 7.5 million acre-feet equally allocated to the four upper basin states and the three lower basin states. The actual allocation is roughly 16,200,000 acre-feet. The allocation was based on an overly optimistic wet year. The average flow of the Colorado River was 13.5 million acre-feet. The over-allocation created a structural deficit compounded in recent years by a major drought.7
Congress ratified the Colorado River Compact on December 21, 1928 in the Boulder Creek Project Act of 1928,8 which also authorized construction of Boulder Dam, since renamed Hoover Dam. The compact and subsequent legislation and judgments became known as the Law of the River.
California’s Central Valley California has a history of epic droughts, epic floods, and epic wildfires. The Native Americans viewed California’s Central Valley, today’s agricultural heartland of California, as the Inland Lake because it frequently flooded up to thirty inches deep. The Central Valley today is one of the world’s most agriculturally productive areas. The Valley has also been subject to severe flooding. The Central Valley was essentially a land of wetlands subject to periodic flooding two centuries ago. It flooded in 1862, 1902, 1904, 1907, 1909, and as recently as 2023.
Wetlands were drained, dredged, and filled for agricultural, industrial, and residential uses. Wastes were continuously dumped into wetlands. Developers loved wetlands and floodplains for residential, commercial, agricultural, and industrial building, and as airports. The relative flatness of the lands was attractive for development. The large Tulare Lake in the Central Valley was drained. Yet it occasionally reappears, as in 2023, when a series of atmospheric rivers struck California.
California was struck by a series of atmospheric rivers over the course of forty-three days in The Great Flood of 1861-1862. Los Angeles received sixty-six inches of rain over twenty-eight days while San Francisco recorded nearly twenty-five inches in January. An area about 300 miles by twenty miles in the Central Valley was flooded. Parts of the Valley remained flooded into summer.
The waters that flooded the Central Valley are now confined in reservoirs behind dams, restrained by levees, and channeled and diverted to the San Francisco Bay Area and Southern California.
Orange County and Los Angeles were flooded in 1938, as in 1861-62. Orange County, then part of Los Angeles, was under four feet of water for four miles from the banks of the Santa Ana River.9 The Corps of Engineers after the 1938 flooding called the ninety-three-mile Santa Ana River the most dangerous river west of the Mississippi.10 Two dams, levees, and channels contain the river these days.
Mono Lake and the Public Trust Doctrine Private rights, the jus privatum, are subordinate to the public rights, the jus publicum, under the public trust doctrine. The traditional protected rights of the public trust doctrine are navigation, commerce, and fishing. The California Supreme Court in Marks v. Whitney11 expanded the public trust doctrine to environmental values, such as “the preservation of lands in their natural state, open space, and environments for food and habitat for birds and wildlife.”12
Los Angeles completed the Los Angeles aqueduct in 1913 to divert Owens Valley waters to Los Angeles, which then eyed Mono Lake ninety miles to the north for another major diversion. Los Angeles diverted four of the five tributaries feeding Mono Lake. The environmental effects on Mono Lake were devastating. The lake shrank by a third from its pre-diversion size, from 85 square miles to 60.3 square miles. The surface level dropped 48 feet and the lake lost half its volume while doubling in salinity. The lake’s islands provided the breeding grounds for 95% of the California Gull population. The dropping water level exposed the gull population and their nests to coyotes. The once agriculturally productive valley was often turned into a wind-blown, dusty desert.
The California Supreme Court reconciled the doctrines of water rights and the public trust doctrine. The state, going back to the prior appropriation rights, had not applied the trust doctrine in appropriating water.
The State has the duty “to protect the people’s common heritage” in the public resources, including tidelands, submerged lands, and navigable waters. The court decided three issues of the public trust doctrine: (1) the purpose of the trust, (2) the scope of the trust, and (3) the powers and duties of the state as trustee. It held:
(1) The trust applies to all navigable lakes and streams and to non-navigable tributaries of navigable waters, (2) No vested rights exist to waters protected by the trust; the water belongs to the people of the state, (3) The state has continuous supervisory powers over its navigable waters and the lands under those waters, (4) The state can thereby reconsider prior decisions, (5) No vested rights exist for waters protected by the public trust doctrine, (6) The right to the water is usufructuary, (7) Past allocation decisions are not binding, and (8) Recreational and ecological values are protected by the trust.
The California Water Resources Control Board in 1993 ordered minimum stream flows restored and imposed a minimum water level for the lake, reducing the Los Angeles diversions.
Federal Limitations on State Water Rights State water rights are subject to federal statutes, such as the Clean Water Act and Endangered Species Act. The recent Supreme Court decision in Sackett v. United States13 removes many wetlands from the jurisdiction of the EPA under the Clean Water Act, exposing them to risk of pollution and resulting harms.
ENDNOTES
Denis B. Binder is Professor of Law at Chapman University Dale E. Fowler School of Law, with emphasis on Torts, Toxic Torts, and Environmental Law. He publishes and speaks extensively in areas of infrastructure, especially dam safety, emergency planning, and disasters. He can be reached at dbinder@chapman.edu..