Environmental Law

Envt'l Law News VOLUME 33, NUMBER 1, SPRING/SUMMER 2024

TRIBAL BENEFICIAL USE DESIGNATIONS AS A CATALYST FOR REALLOCATING WATER IN CALIFORNIA

Written by Alina Werth1

INTRODUCTION

In California, surface water provides approximately 60 percent of the state’s agricultural, industrial, and municipal water demand.2 Surface water is also vital for the environment—it supports instream habitats for aquatic species and helps maintain adequate water quality levels in the state’s streams, rivers, and lakes.3 This surface water, however, is overallocated.4 The amount of allowed water withdrawals exceeds the surface water that is available without extensive damage to ecosystems and other instream uses.5 Climate change will only further impact the timing and quantity of available surface water.6 In a future where less water will be available to meet the same or increased demand, moving water between users and protecting water for non-consumptive uses will become increasingly important.7 Market-based strategies, such as water markets, are proposed as an effective and efficient way to move water from low-value to high-value uses and will likely play an important role in the management of California’s scarce surface water resources.8

At the same time, the current allocation of surface water in California is fraught with injustices. Surface water rights in California (i.e., the right to divert a certain amount of water from a lake, river, stream, or creek9) were first perfected in the late 1800s at the same time as the state-sponsored genocide of Native Americans.10 Indigenous peoples11 throughout California were forcibly dispossessed of their ancestral lands and denied access to important cultural and spiritual water bodies.12 As a result, today many Native American tribes and indigenous peoples lack access to culturally important water bodies, and many of these water bodies are no longer able to support traditional uses.13 Understanding the historical context in which water rights were developed is important for contextualizing the current allocation of and access to water, especially as California grapples with how its water rights regime can equitably handle the strain of climate-induced droughts.

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