As a historic drought continues to dramatically impact California, several local water districts that supply water to thousands of Shasta County residents, reported last month they expect to face shortfalls.
They’re some of the many small communities around California that are running out of water due to unprecedented conditions. California has experienced two years of historically low rainfall. Vast amounts of mountain snowmelt was absorbed into unusually parched soils before reaching the state’s reservoirs and the river water that flowed into Shasta reservoir in 2021 was only 40 percent of normal. Dramatic photographs of low reservoir levels have become emblematic of the ramifications of California’s drought.
But California’s complicated water rights system is also playing an important role in water shortages across the state. Water rights are used to determine which water users will be prioritized in times of severe drought. Many were established more than a century ago, without considering climate change, racial equity, tribal rights or how to distribute water to communities where it’s needed most. Now, as water shortages become rife and some rivers are reduced to puddles, many are calling on the state to drastically overhaul its water rights regime.
Among critics concerns are a belief that the current system privileges a small, predominantly white minority. According to a 2014 UC-Berkeley study, the top one percent of water rights account for more than 80 percent of the total water that’s allocated.
“We’ve been advocating for the state to reform its water rights system to be based on climate change and equity. It was made in the early 1900s,” said Regina Chichizola, Policy Director for Save California Salmon, which regularly collaborates with California tribes in advocating for healthy rivers. “(That time period) was a time when women and people of color couldn’t vote; it was a time when Native peoples’ lands were being taken. . . obviously, the system is not just.”
In Shasta County, disparities in water availability in different water districts are directly tied to the California water rights system. Locally, the Bella Vista and Clear Creek districts, as junior water rights holders, are running low on water because of federal cuts to their water allocation from Shasta reservoir. Many will need to purchase water. Meanwhile other North State water users, designated as senior water rights holders, are far more immune to cuts. This year many will be receiving 75 percent of their expected allocation. And because some of these senior water rights holders don’t need the amount of water they are allocated, they may sell their excess water, sometimes for profit, on the state’s water transfer market.
The Sacramento River Settlement Contractors – a group of water districts and other users who have senior rights – are expecting to sell 170,000 acre-feet of North State water to users south of the Sacramento-San Joaquin Delta for revenues up to $67 million, according to an analysis by the Natural Resources Defense Council.
The Establishment of California Water Rights
California’s water rights system first took shape to benefit miners during the 19th century Gold Rush Era, a generally lawless and chaotic era when Native people were struggling to survive genocidal violence. Not only did the state of California pay out more than $1 million to settlers to hunt Native peoples, but many vigilantes and locally organized militias massacred Native villages in order to clear the land for mining claims.
Today, even though the Winnemem Wintu people have been the Indigenous caretakers of the McCloud River for thousands of years, they still have no water rights tied to the waterway. Winnemem Wintu Hereditary Chief and Spiritual Leader Caleen Sisk said that’s partly because the terrifying threat of violence would have made it impossible for her ancestors and elders to have fought for their water rights well into the 20th century.
“You have to remember that back then a lot of Wintu people didn’t speak English, and they didn’t really recognize what white people were doing. It didn’t make any sense to us to take part of a river or to dam it up.” Sisk said.
During the Gold Rush, miners’ access to water was essential, as many of them diverted streams to dig for gold deposits or used dams and flumes to wash away topsoils. And according to Californian water historian Norris Hundley, some companies abandoned mining completely to focus on acquiring water rights because it was so profitable to sell water to other miners.
After establishing “first in time” rights, the early California courts added more complexity to the water rights system by also recognizing so-called riparian rights. This meant landowners had a right to use water that flows through or borders their property, though with certain restrictions.
According to the State Water Resources Control Board, riparian rights are often prioritized over “first in time” rights. After decades of conflict and lawsuits between riparian right holders (usually cattle ranchers) and “first in time” rights holders (usually miners), state legislators created today’s permitting process in 1914. They also created what would become the State Water Resources Control Board to implement more order and regulation.
Today, those who have pre-1914 water rights are considered senior waters rights holders, and they’re generally entitled to their full water allocation before junior water rights holders receive their water, according to the State Water Resources Control Board.
But Native peoples’, who were not considered citizens or allowed to vote until 1924, were not granted any rights to their watersheds under the California water rights doctrine. While some California tribes, who are federally recognized, have since obtained limited water rights tied to their reservation and trust lands, typically those trust lands only represent a small fraction of a tribe’s ancestral territory.
And Indigenous leaders and some scholars also note there is an inherent prejudice behind the “first in time” doctrine because it ignores Indigenous peoples’ millenia-spanning history of occupying and stewarding their ancestral watersheds.
Sisk said tribal water and lands rights should be restored as restitution for what was taken during the 19th century California genocide. Sisk is a member of Governor Newsom’s Truth and Healing Council, which is investigating potential reparations for California Indians. While Sisk supports dramatically reforming the water rights, she notes the very concept of water becoming an individual’s property isn’t how Winnemem Wintu people traditionally relate to their river.
“In our way,” Sisk says, “we recognize we’re just one of the many creations that need this water. A water right for profit is outside Indigenous thought.”
Shasta County Supervisor and Northern California Water Association Board Member Mary Rickert wrote to Shasta Scout that she supports the current water rights system, and noted many people have purchased land based on the water rights associated with them.
“A water right is a property right, just like a home is someone’s property,” she said. “The water rights system in California has been established by various court cases over the last 150 years. (They’ve) been established by law . . . The water rights system is in place now, and (it) would be extraordinarily difficult to restructure it.”
But some restructuring of the system has already occurred. The courts have established that the state has the duty to protect the environmental integrity of its rivers. That’s what gives the State Water Control Resources Board the power to interfere with both senior and junior water rights during times of severe drought.
And making additional changes to the water rights system is on the minds of water regulators.The State Water Resources Control Board released a report this February providing recommendations for improving how water rights are permitted and regulated.
Notably, while the report’s recommendations to overhaul the water rights system reflect regulators’ concerns about climate change, the report did not suggest any wholesale changes to the “first in time” doctrine, nor did it address racial equity or Indigenous rights.
Water Transfers Lack Transparency, Accountability
While treating water like a commodity may be contrary to Indigenous values, water rights can be bought and sold under the current system. And disparities in water rights often necessitate water transfers.
Redding, for example, has both a massive underground aquifer and senior water rights dating back to 1886, according to Water Utility Manager Josh Watkins. That’s why they’re able to sell excess water to local districts facing shortages.
Districts buying from Redding, including Bella Vista, Clear Creek and the City of Shasta Lake, are junior water rights holders. The Record Searchlight has reported that water allocations from Shasta reservoir to these districts were cut by 75 percent by the Bureau of Reclamation.
And while these North State communities struggle to find water, Reclamation has allocated more than four million of acre-feet of North State water farther south, primarily to farmers and ranchers with senior water rights. An acre-foot is about 326,000 gallons or enough water to cover an acre of land one-foot deep.
Some experts believe this water transfer market is an important remedy for water shortages, while others argue the lack of data and accurate record keeping make it difficult to truly assess the water rights market.
“There’s a common misconception that the Bureau of Reclamation is not delivering water to farmers because certain agencies (south of the Delta) had their allocation severely cut,” said Doug Obegi, Director of the NRDC’s California River Restoration, Water Division and Nature Program. “There’s a real lack of transparency and information about where the water goes. . . You add climate change to the mix, and it makes this work tremendously challenging.”
In its report, the State Water Control Resources Board acknowledged that more accurate data is needed to properly regulate the water rights system as well as water transfers. Currently, it’s difficult to gauge how much water is available in California’s rivers, and water users don’t always provide accurate information about how they are exercising their rights.
As a result of these systemic issues, right holders are allocated more water than actually exists in the rivers in a phenomena known as “paper water.” According to the 2014 UC-Berkeley study, in the case of 16 of California’s major 27 rivers, more water was allocated to rights holders than actually flows in them. This year, the drought and “paper water” has led to the demand for the water in the San Joaquin watershed being 16 times greater than the supply, according to the Sacramento Bee.
On the Sacramento River, over-allocation could also be an issue. Obegi said if the Sacramento River Settlement Contractors receive 75 percent of their allocation this summer as expected, or about 1.586 million acre feet, they would be diverting more than the river’s entire flow, according to recent data.
Local irrigators say they try to be conscientious about the complex impacts of their water use. The Anderson-Cottonwood Irrigation District (ACID) is a senior water rights holder and expects to receive 75 percent of its 125,000 acre-foot allocation of Sacramento River water.
General Manager John Currey said that the district’s irrigation benefits the environment by restoring groundwater, and that ACID provides regular transfers of water to local municipalities.
“We’re trying to be sensitive to everyone’s situations and use our water within our rights to the benefit of our customers and groundwater in Shasta County,” he said. “Water is complicated. . . we try to work with local stakeholders to exercise our rights in ways that aren’t detrimental to the environment or fisheries.”
Rickert, who, with her husband, is a majority owner of Prather Ranch, said agricultural producers can be important leaders and partners in adapting California’s water management to climate change. Echoing Currey, Rickert said recharging underground aquifers is key. She supports the establishment of groundwater storage banks around the county to supply water during dry years.
While environmentalists often complain about agricultural water use, Rickert noted that the drought has had a “devastating impact” on local farmers and ranchers, leading to tremendous financial pressures and thin profit margins for agricultural products. Ranchers, she said, have had to supplement their cattle with hay, spending hundreds of thousands of dollars because grass didn’t grow.
“I understand the frustrations of people who are short on water, but pastures are either burning up or drying up. . . How else can we raise food for people to eat?” Rickert wrote to Shasta Scout.
But Sisk says the problems with the water rights systems threaten another important food source: Chinook salmon. The sacred fish, traditionally vital to many Native peoples’ diets and cultures, is facing extinction due to the declining conditions in the state’s rivers.
Sisk expressed doubt whether incremental reforms and conservation will be enough to truly solve California’s crises of water management. She argues for the full adjudication of tribal waters rights around the state, and the restoration of Indigenous-led stewardship of California’s watersheds.
“The Indigenous people should be the voice for salmon water and for the river water,” Sisk said.
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