Regulatory Guide - History of Water Right Law

Water right law in California varies from the rest of the nation due to seasonal, geographic and quantitative differences in precipitation that resulted in a combination of riparian and appropriative rights.

Riparian Rights

Riparian rights usually come with property ownership adjacent to a source of water. With statehood, California adopted the English common law familiar to the Eastern seaboard. This also included the riparian doctrine that entitles the landowner to use the water flowing past his or her property. Such rights do not require permits, licenses or government approval. Riparian rights remain with the property when it changes hands, although parcels severed from the adjacent water source generally lose their right to the water.

In 1850, California entered the Union as the thirty-first state. One of the first actions taken by its lawmakers was to adopt the common law of riparian rights. One year later, the Legislature also recognized the appropriative right system as having the force of law. The newer system continued to increase in use as agriculture and population centers blossomed and ownership of land was transferred into private hands.

Appropriative Rights

Appropriative water rights trace their source to the mid-1800s. Water right law took a different course in 1849 when thousands of fortune seekers flocked to California during the gold rush. Water development grew quickly, escalating to a degree never before witnessed in the United States, as the "forty-niners’ built extensive networks of flumes and waterways to work their claims. These systems often transported water far from its original river or stream source. The self-governing, maverick miners applied the same "finders-keepers" rule to water that they did to their gold claims – it belonged to the first miner to assert ownership.

To stake their water claims, the miners developed a system of "posting notice" which signaled the birth of today’s appropriative right system. It allowed others to divert available water from the same river or stream, but their rights existed within a hierarchy of priorities. This "first in time, first in right" principle became an important feature of modern water right law in California.

Water Right Conflicts

The conflicting nature of California’s dual water rights system prompted numerous legal disputes. Unlike appropriative users, riparian right holders were not required to put water to beneficial use. This clash of rights eventually resulted in a constitutional amendment (Article X, Section 2 of the California Constitution) that required all use of water be "reasonable and beneficial." These "beneficial uses" have commonly included municipal and industrial uses, irrigation, hydroelectric generation and livestock watering. More recently, the concept has been broadened to include recreational use, fish and wildlife protection and enhancement, and aesthetic enjoyment.

Until the early 1900s, most miners and non-riparian farmers simply took control and used what water they wanted. Sometimes notice was filed with the county recorder, but no formal permission was required from any administrative or judicial body.

Water Commission Act of 1914

The Water Commission Act of 1914 established today’s water right permit process. The act created the agency that later evolved into the State Board and granted it the authority to administer permits and licenses for California’s surface waters. The act was the predecessor to today’s Water Code provisions governing appropriation.

Riparian rights still have a higher priority than appropriative rights. Natural flows can be used directly from a river or stream without a permit, although a permit is necessary if the riparian right holder wishes to store water from one season to the next. The priorities of riparian right holders generally carry equal weight; during a drought all share the shortage among themselves.

Post-1914 appropriative rights are governed by a hierarchy of priorities developed by the forty-niners. In times of water shortage, the most recent (‘junior’) right holder must be the first to discontinue use; each right’s priority dates to the time the permit application is filed with the State Board. Although pre-and post-1914 appropriative rights are similar, post-l9l4 rights are subject to a much greater degree of scrutiny and regulation by the State Board.

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