RETHINKING OLD RIGHTS

Written by Karrigan Bork¹

INTRODUCTION

California’s water rights come in many flavors: appropriative rights, riparian rights, pueblo rights, tribal rights, federal reserved rights, to say nothing of groundwater . . . it is quite a list! Within the appropriative surface water rights category, water law practitioners traditionally create two groups: 1) water rights granted by the various incarnations of the California State Water Resources Control Board (the Water Board), which began issuing water right permits and licenses as the State Water Commission on December 19, 1914;² and 2) those pre-1914 rights obtained simply by using the water before the permit system.³ Because California law requires that older appropriative rights get all of their water before newer appropriative rights get any,⁴ and because pre-1914 rights sit outside some (but not all) mechanisms of regulatory control by the Water Board,⁵ older rights are generally considered to be better water rights in California.⁶ This article complicates that view in two (hopefully useful) ways.

First, consider the full range of post-1914 rights. Although the Water Board issued permits for all of the rights, the role of the Water Board has transformed over the years. The Water Board began as a purely ministerial administrative body, required to issue permits for any water that remained instream, with no discretion to deny a permit in the public interest or to protect instream uses or other non-consumptive uses. This gradually changed, and the "modern" Water Board now inhabits a more robust regulatory position, taking by turn legislative and judicial actions in seeking to regulate California’s sprawling water system.⁷ As discussed below, perhaps the most appropriate marker for the modern Water Board would be the California Supreme Court’s 1983 decision in National Audubon v. Superior Court, which explicitly discusses the transition.⁸ Regardless, the water rights granted by the modern Water Board have undergone an entirely different analysis than those granted by the early Water Board in its ministerial role, even though those same laws can now be applied to the older water rights.⁹ The pre-1983 permitted water rights have generally undergone much less scrutiny, and the Water Board and courts often failed to consider instream and other public values during proceedings in that pre-1914 era.¹⁰