Two defenses of our current water rights system

I am genuinely grateful to the Public Water Coalition for writing up a defense of our current water rights system (II(f) pgs 12-13). I’ll be looking at both that section and to three paragraphs from Ms. Moon’s testimony to the Little Hoover Commission, which also defended the current water rights system (page 3). They touch on some of the same points, so I will refer to both of them. I’ve long wondered how people could defend our current water rights system, so I am glad to have two sincere defenses to address. I also hope these are the two strongest cases that could be made for California’s water rights system. I am copying both in full beneath the fold, in case you don’t want to click through to pdf’s elsewhere.

Testimony of Laura King Moon, Assistant General Manager of the State Water Contractors, to the Little Hoover Commission responding to the question:

How can we best improve the state of California’s management of water rights to promote more efficient use and allocation of the state’s water resources?

California’s water rights system has been developed to provide the legal foundation for moving water from areas with sources of supply to areas where it is needed, either locally or elsewhere. Communities throughout California have invested billions of dollars in reliance on their water rights or water-supply contracts issued under others’ water rights. Moreover, Northern California communities, including those in the Delta, have relied on area of origin laws that ensure they shall not be deprived by the operation of the SWP and Central Valley Project (CVP) of the prior right to develop through the normal water rights application process future water supplies reasonably required to adequately supply reasonable beneficial uses in those areas.

With a resource as variable as water, and with constantly changing land use patterns, some flexibility in the administration of the rights is needed and has been designed into the system. For example, appropriative water rights provide this flexibility by allowing their holders to modify the ways they are exercised (place of use, point of diversion, purpose of use) as long as other legal users of water or the environment are not injured.

This approach also supports a robust and growing water transfer market. This flexibility, however, must be tempered by the overriding consideration that the rights, once granted, form a basis for infrastructure investments and economic development in the billions of dollars. Thus, if water is to be reallocated to ecosystem enhancement, reallocations must occur through voluntary transfers to the maximum extent possible in order to respect the massive investments communities have made based on their water rights. We recognize that California law and policy supports the notion that environmental impacts caused by diversion and use of water may be regulated to protect the public interest. However, involuntary and uncompensated reallocation of water supplies to any other purpose other than the one for which they were intended when the reallocation does not address impacts caused by the water users, or is not proportional to the impacts caused by those users, conflicts with the water rights system and the investments that have been made based on that system. Such a reallocation would not only reduce the value of the targeted water user’s investments, but would introduce significant uncertainty into the security of all water rights, which could seriously constrain water markets. It is with these concepts fully in mind that one should consider how to improve water rights management.

Position paper of the Public Water Coalition

Section II (f) Water Rights System and Delta Management

The hallmark of California water rights is flexibility. Gold Rush miners invented the appropriative water right to allow them to move water from streams to distant areas where the water would be more useful to them. Consistent with this heritage, California water rights have allowed the state to prosper by supplying the legal foundation for moving water from areas adjacent to streams to areas where it is needed, either locally or elsewhere. Based on these rights, communities throughout California have invested billions of dollars in reliance on their water rights or water supply contracts issued under other’s water rights. Moreover, Delta watershed communities have relied on area of origin laws that provide that they shall not be deprived by the operation of the SWP and CVP of the prior right to develop future water supplies reasonably required to adequately supply beneficial uses in those areas. The Coalition therefore believes that such communities’ water rights, and the related area-of-origin laws, must be respected as part of any Delta solution.

With a resource as variable as water, some flexibility in rights is by design. Appropriative water rights account for this flexibility because their holders can modify them as long as other legal users of water are not injured. This basic rule has supported a robust and growing water transfer market. If water is reallocated to ecosystem enhancement, reallocations must occur through voluntary transfers to the maximum extent possible in order to respect the massive investments communities have made based on their water rights. Involuntary and uncompensated reallocation of water supplies to ecosystem enhancement, where the reallocation is intended to address ecosystem impacts not caused by those users, conflicts with the water rights system and the investments that have been made based on that system. Such a reallocation would not only reduce the value of the targeted water user’s investments, but would introduce significant uncertainty into the security of all water rights, which could seriously constrain water transfers.

This Coalition recommends that any Delta solution recognize the following to properly maintain and account for water rights:

Any Delta solution must avoid involuntary and uncompensated reallocations of water from legal users of water that are not justified by the need to mitigate for impacts caused by those water users.

Area of origin laws must apply to water delivered through any new Delta conveyance.

The SWRCD should remain the administrative forum in which to consider Delta water quality and flow requirements, because it can transparently consider evidence, resolve scientific disputes and consider reasonable use issues unter Article X section 2 of the California Constitution.

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