A Research Guide to California Water Law
By Tobe Liebert*
A. Introduction
B. State Agencies
C. Constitution & Statutes
D. Cases
E. Secondary Sources
F. Sources for Historical Research
G. Major state and federal legislation
H. Recommended Websites
I. Conferences
J. Glossary
A. Introduction
(1) Definition of water law
"Water Law" defies a simple definition. It typically refers to a wide variety of topics that address the
ownership, allocation, use and quality of water.1 In the early days of California statehood, water law
existed primarily as a way of settling disputes between competing users, but it is now a complex
intersection of private rights and public policy, where state and federal interests in the management and
preservation of water resources have been increasingly asserted. Indeed, because of the recent rise of
environmental concerns and legislation, one scholar has stated: “. . . in many respects, water law in
California today is primarily environmental law.”2
(2) Types of water
California law recognizes several types of water. This is important since the rights surrounding water
depend upon its classification.3
Surface water – the common definition is that surface water is water in a river or stream, as well as water
in a lake, pond or other surface enclosure, the essential characteristic being that the water is above
ground. California law, however, makes distinctions which vary from this common understanding. In
Keys v. Romley, 412 P.2d 529 (1966), the California Supreme Court stated: “Water diffused over the
1*Reference Librarian and Adjunct Professor at Loyola Law School of Los Angeles. A useful definition that stresses
governmental goals is found in Roderick E. Walston, California Water Law: Historical Origins to the Present, 29
WHITTIER L. REV. 765, 765 (2008): “California water law is a distinct body of law with a distinct history but is
informed by recent congressional enactments that establish national goals and limit the reach of state law.
Therefore, broadly speaking, California water law is an amalgam of state and federal laws that establish both local
and national goals in the field of water regulation.”
2 Gregory S. Weber, The Role of Environmental Law in the California Water Allocation and Use System:
An Overview, 25 Pac. L.J. 907, 910 (1994).
1
surface of land, or contained in depressions therein, and resulting from rain, snow, or which rises to the
surface in springs, is known as ‘surface water.’ It is thus distinguishable from water flowing in a fixed
channel, so as to constitute a watercourse, or water collected in an identifiable body, such as a river or
lake.” 4
Thus, water in rivers and lakes is not “surface water,” according to California caselaw. Rivers and
streams are classified instead under the term “watercourse,” which is water flowing in a fixed and definite
channel. Confusion is created, however, since Water Code § 12000 appears to adopt the more common
understanding of the term “surface water” by stating that streams and lakes are understood to be “surface
water” in any application for a permit to appropriate water.
Commentary about California water law often uses the term “surface water” in the more generally
understood sense, and broadly divides water into either surface water or groundwater.5
See:
62 CAL. JUR. 3D Water §§ 4-21 (2005 & Supp. 2017);
12 B.E. WITKIN, SUMMARY OF CALIFORNIA LAW, Real Property §932 (10th ed. 2005 &
Supp. 2016).
Groundwater – defined as water below the ground's surface that is not part of a definite stream or
channel. It is often referred to as "percolating groundwater.” An owner of land with groundwater beneath
is said to have the "overlying right" to this groundwater. The pumping of groundwater by those with
overlying rights is essentially unregulated in California, as long as it is for a beneficial use, but if a
groundwater basin is in “overdraft” then the overlying rights of a land owner may be limited. Ownership
in groundwater in California can be way of overlying rights, appropriative rights or prescriptive rights.
Approximately 40% of California’s water use is provided through groundwater in an average year.
The recent passage of the landmark State Groundwater Management Act of 2014 (SGMA) is designed to
bring groundwater pumping under a greater degree of regulation.
See:
62 CAL. JUR. 3D Water §§ 371-378 (2005 & Supp. 2017);
SCOTT S. SLATER, CALIFORNIA WATER LAW AND POLICY § 3.01 (2015).
3 Commentators sometimes offer different ways of classifying water. “The five most common
classifications are (1) surface water in watercourses, (2) groundwater flowing in defined underground
streams, (3) percolating or diffused groundwater, (4) diffused surface water, and (5) springs.” A. DAN
TARLOCK, LAW OF WATER RIGHTS & RESOURCES § 2:4 (2016). A remarkable 19 types of water are
identified in HAROLD E. ROGERS & ALAN H. NICHOLS, WATER FOR CALIFORNIA: PLANNING LAW &
PRACTICE 265 (1967). There has also been a growing recognition in recent years that groundwater and
surface water can be hydrologically connected, thus making this distinction somewhat arbitrary.
4 Keys v. Romley, 412 P.2d 529, 531 (1966).
5 E.g., Sax, Joseph L., We Don’t Do Groundwater: a Morsel of California Legal History, 6 U. Denv.
Water L. Rev. 269 (2003).
2
Flood waters - Floodwaters are waters that escape from a watercourse and flow uncontrolled over the
adjacent land. The legal questions surrounding floodwater are not those of how to acquire this water but
how a land owner is entitled to move the water off the land and the potential damage that may result to
surrounding property.
See:
62 CAL. JUR. 3D Water § 13 (2005 & Supp. 2017);
12 B.E. WITKIN, SUMMARY OF CALIFORNIA LAW, Real Property § 966 (10th ed. 2005 &
Supp. 2016).
The above distinctions between types of water are crucial because there are fundamental differences in
how they are treated under the law. Traditionally, the usage of surface waters has been regulated by the
state (through appropriative permits), while the usage of groundwater has not. For example, per Water
Code § 1200, the State Water Resources Control Board has jurisdiction over only “. . . surface water, and
to subterranean streams flowing through known and definite channels" and thus no jurisdiction over
groundwater.
(3) Ownership of water & limitations on use
To understand ownership and uses of water in California, some fundamental background principles must
be considered.
Ownership. The people of California own all waters of the state, but the right to the use of the water by
others is recognized. This right of use is referred to as a "usufructuary" right. Water Code § 102 states
this as follow: "All water within the State is the property of the people of the State, but the right to the
use of water may be acquired by appropriation in the manner provided by law."
Many California cases do discuss the right to water as an enforceable real property right. But it is clear
that this right is one that has many limitations and does not have all the benefits of a property interest in
land.6
See:
62 CAL. JUR. 3D Water § 52 (2005 & Supp. 2017);
SCOTT S. SLATER, CALIFORNIA WATER LAW AND POLICY § 1.10 (2015);
1 WELLS A. HUTCHINS, WATER RIGHTS LAWS IN THE NINETEEN WESTERN STATES 137
(1971).
Reasonable and beneficial use. Another fundamental principle is the requirement that any use must be
both "reasonable" and “beneficial.” This is currently enshrined in Article X, § 2 of the California
Constitution.7 This reasonable use provision was adopted by the voters of California on November 6,
1928 (as Article XIV, § 3 of the Constitution), although the doctrine was recognized by court decisions
prior to this adoption.8 This principle has also evolved over time in California, driven in great part by the
increasing scarcity of water due to the state's growing population and demands upon its limited water
supplies. This Constitutional mandate of reasonableness applies to all uses of water, regardless of the
6 For a discussion of the evolution of the property right in water, see MORTON J. HORWITZ, THE
TRANSFORMATION OF AMERICAN LAW, 1780-1860, 31-53 (1977), which discusses the English common
law and early American decisions.
3
type of claim to the water right.9 A particular “reasonable use” is also subject to changing circumstances,
so that what was once considered a reasonable use may later be deemed no longer reasonable. 10
Water Code §1253 is an example of how this principle of reasonable and beneficial use has been
incorporated in a statute, which states: “The board shall allow the appropriation for beneficial purposes of
unappropriated water under such terms and conditions as in its judgment will best develop, conserve, and
utilize in the public interest the water sought to be appropriated.”
What constitutes a “beneficial use” is set forth in Water Code § 1257, which states that a beneficial use
includes, but is not limited to, the following uses: “domestic, irrigation, municipal, industrial,
preservation and enhancement of fish and wildlife, recreational, mining and power purposes, and any uses
specified to be protected in any relevant water quality control plan.” Water Code § 1254 states that
domestic and irrigation uses have the highest priorities when appropriating water. A review of California
cases reveals that beneficial uses are usually discussed in terms of economic benefits, as opposed to
“instream” uses such as wildlife preservation. This later use has been protected instead by external
environmental laws and regulations.
See:
62 CAL. JUR. 3D Water §§ 28-32 (2005 & Supp. 2017);
SCOTT S. SLATER, CALIFORNIA WATER LAW AND POLICY §§ 12.01-12.02 (2015);
12 B. E. WITKIN, SUMMARY OF CALIFORNIA LAW, Real Property § 938 (10th ed. 2005
& Supp. 2016).
Public trust doctrine. As the State is the owner of the waters in California, the State is thus regarded as
holding these resources in a "public trust" for its citizens. The purpose of such a public trust is to protect
navigation, fishing, recreational uses, fish and wildlife habitat and aesthetics (these activities are referred
to as “instream uses,” as opposed to uses such as irrigation). Thus, the state has the obligation, when
planning and allocating water resources, to take this public trust into account. This can be an important
limitation on demands upon California's water resources.
7 Article X, section 2 states: “It is hereby declared that because of the conditions prevailing in this State the general
welfare requires that the water resources of the State be put to beneficial use to the fullest extentof which they are
capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the
conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest
of the people and for the public welfare.”
8 The case of Lux v. Haggin, 10 P. 674 (1886), recognized that the use of water had to be “reasonable,” at
least in disputes between holders of riparian rights. The 1928 Constitutional amendment established that
this reasonableness requirement existed in disputes between riparian claimants and appropriators as well.
9 Peabody v. City of Vallejo, 40 P.2d 486 (1935).
10 Joslin v. Marin Municipal Water Dist., 429 P.2d 889 (1967).
4
See:
62 CAL. JUR. 3D Water § 242 (2005 & Supp. 2017);
SCOTT S. SLATER, CALIFORNIA WATER LAW AND POLICY §§ 13.01 – 13.12 (2015);
12 B. E. WITKIN, SUMMARY OF CALIFORNIA LAW, Real Property § 920 (10th ed. 2005 &
Supp. 2016);
National Audubon Society v. Superior Court, 33 Cal. 3d 419, 189 Cal. Rptr. 346, 658 P.2d
709 (1983).
(4) The competing Rights to Use Water
Sometimes referred to as the law of "water diversion" or “allocation,” this body of law governs who may
take water for their own use, or simply put, who has the right to the use of water. These rights are
recognized as real property rights, and their existence is primarily a matter of state law. There are many
instances, however, where a state-based right to take water might be subject to and limited by a federal
statute, such as the Endangered Species Act.
(a) Riparian v. Appropriative rights
The right to use surface waters can be based upon either a "riparian" right or an "appropriative" right. A
riparian right is the right to use water based upon the owner's land being contiguous to water (i.e.,
bordering upon a water source such as a stream). 11 The appropriative right was traditionally acquired by
actual appropriation, or taking, of water (today the appropriative right can only be granted by a state
permit). The majority of states have riparian systems of water rights, while a minority of states, all in the
western U.S., have systems based on the appropriative right. 12 A basic distinction is that riparian rights
evolved in climates having an abundance of water, and thus the right was unquantified, while the system
of prior appropriation was developed in areas of water scarcity, resulting in these rights being limited and
quantified.
As will be discussed, California has a unique "dual system" that recognizes elements of both systems,
which has led to much uncertainly in the law. By far the largest claim upon water in California is under
an appropriative right.
Nature of Riparian rights
Characteristics of a riparian right:

no permit is required to use water subject to the riparian right;
11 The question may arise as to whether the entirety of a large parcel of property enjoys riparian status.
The extent of lands having riparian status is determined by three criteria: (1) the land is contiguous to or
abuts the stream; (2) the parcel is the smallest parcel held under one title in the chain of title leading to the
current owner; and (3) the parcel is within the watershed of the stream. Rancho Santa Margarita v. Vail,
528–529, 81 P.2d 533(1938).
12 The western states that rejected riparian rights are said to follow the “Colorado Doctrine,” established
by the Colorado Supreme Court case of Coffin v. Left Hand Ditch Co., 6 Colo. 443 (Colo. 1882).
5






the right is a right of property and runs with the land;
riparian rights are not quantified, as are appropriative rights; the owner of a riparian right can take
all that is needed, as long as the use is reasonable and beneficial;
there is no priority of riparian rights; rights among riparian owners to the same body of water are
“correlative,” that is, shared equitably;
the right is not lost through non-use (as may happen with an appropriative use);
there is no right to store water under a riparian right;
The concept is not applicable to groundwater, only to water in watercourses.
A criticism of riparian rights, from a planning viewpoint, is that since the riparian right is not lost by
non-use, holders of unused, or “dormant” rights, may appear at any time and begin exercising their
right to divert water.
See:
62 CAL. JUR. 3D Water VI Riparian Right (2005 & Supp. 2017);
SCOTT S. SLATER, CALIFORNIA WATER LAW AND POLICY §§ 3.01 – 3.21 (2015);
12 B.E. WITKIN, SUMMARY OF CALIFORNIA LAW, Real Property § 915 (10th ed. 2005 &
Supp. 2016).
Nature of Appropriative rights
Characteristics of an appropriative right:








The right does not arise out of land ownership, but from the fact that water is diverted and used
for a beneficial use;
Among other appropriators seeking to divert water, the principle of “first in time, first in right”
applies, that is, there is a recognition of priority that will exclude other claimants in times of
scarcity;
An appropriative right is limited to the quantity of water that can be put to a beneficial use;
The right is junior to the rights of riparian users in the same body of water;
The right can be lost by non-use;
Includes the right to store water, such as by a dam;
An appropriative right is transferable;
After 1914, an appropriative right is legally established by a process of application through the
state; prior to 1914, the right could be established by simply posting notice of the claim.
See:
62 CAL. JUR. 3D Water §§ 230 - 354 (2005 & Supp. 2017);
SCOTT S. SLATER, CALIFORNIA WATER LAW AND POLICY §§ 2.10 – 2.34 (2015);
12 B.E. WITKIN, SUMMARY OF CALIFORNIA LAW, Real Property §§ 942 - 948 (10th ed.
2005 & Supp. 2016).
In California, appropriative rights are divided between pre-1914 and post-1914 rights. In 1914, following
the passage of the Water Commission Act (as Proposition 49), new applications for an appropriative use
became subject to a permit issued by a predecessor of the state water board (this is sometimes referred to
as the “statutory system”). Riparian and pre-1914 appropriative rights holders do not need a permit or
any type of governmental authorization to claim their right to use water (although appropriative uses are
6
subject to priorities of use). Prior to 1914, the legislature did provide a method of posting a notice of a
diversion of water and recording this with the county recorder. While an appropriative right could be
recognized without such notice and recording, this earlier system did provide a user a way of proving a
date of priority against other users. The current laws on establishing appropriative rights are set forth in
the Water Code, Division 2, Part 2, “Appropriation of Water.”
Adding to the challenge of understanding water law in California is the fact that the state has a unique
"dual system" of water rights which recognizes both riparian and appropriative rights in surface waters.
This dual system has its roots in both early statutes from the California legislature as well as early court
decisions. In 1850, the legislature passed a statute declaring that the common law of England was
adopted as the rule of decision to be applied in state courts (1850 Cal. Stat. 219). As the common law of
England recognized riparian water rights, this was a signal that California would recognize riparian rights
as well. The situation was quickly clouded however in 1851 when the legislature passed a statute
addressing "mining claims" and accepted "customs" and "usages" in force at the time as forming basis for
deciding disputes in mining areas. This is significant because the early law of water rights in California
was driven primarily by the influx of miners following the 1849 gold strike. As these miners had no title
to the lands, an appropriative system of water rights developed in the gold fields to address disputes
concerning the use of water.
Two early California Supreme Court cases also established that both riparian and appropriative rights
would be recognized in California courts. See, Eddy v. Simpson, 3 Cal. 249 (Cal. 1853) and Irwin v.
Phillips, 5 Cal. 140 (Cal. 1855).
Priority between Riparian and Appropriative Claims
The difference in the riparian and appropriative right becomes apparent when there is not enough water to
supply the needs of all rights holders. In such situations, the "rule of priority" gives priority to riparian
owners above appropriative owners.13 While all riparian owners much share alike under the doctrine of
"curtailment," the reasonable needs of riparian owners must be satisfied first before the appropriative
rights come into play. Amongst those holding appropriative rights, the "first in time, first in right"
concept applies.
See:
62 CAL.JUR.3D Water §§ 422 - 423 (2005 & Supp. 2017);
SCOTT S. SLATER, CALIFORNIA WATER LAW AND POLICY § 3.15 (2015);
12 B.E. WITKIN, SUMMARY OF CALIFORNIA LAW, Real Property § 946 (10th ed. 2005 &
Supp. 2016).
(b) Other rights recognized by law
Prescriptive rights – this doctrine permits a junior rights holder (of an appropriative right) to gain a legal
claim superior to that of a more senior appropriative right. Certain conditions must be met and it is
roughly analogous to the real property doctrine of adverse possession. A wrongful appropriation may
ripen into a prescriptive right where the use is actual; open and notorious; hostile and adverse to the
13 The great early California Supreme Court decision addressing the conflict between a riparian right and
an appropriative right is Lux v. Haggin, 10 P. 674 (1886).
7
original owner; continuous and uninterrupted for the statutory period of five years; and under claim of
right. An early California Supreme Court case recognizing prescriptive rights is Crandall v. Woods, 8
Cal. 136 (Cal. 1857).
See:
62 CAL.JUR.3D Water §§ 182 – 187 (2005 & Supp. 2017);
SCOTT S. SLATER, CALIFORNIA WATER LAW AND POLICY §§ 4.01 – 4.18 (2015);
12 B.E. WITKIN, SUMMARY OF CALIFORNIA LAW, Real Property § 949 (10th ed. 2005 &
Supp. 2016).
Overlying right – this is a right applicable only to groundwater and is the right of a land owner to extract
as much underlying groundwater as can be beneficially used on the land. The only evidence needed to
prove an overlying right to groundwater is title to the overlying land. An overlying right is analogous to
that of the riparian owner in a surface stream.
See:
62 CAL.JUR.3D Water § 375 (2005 & Supp. 2017);
SCOTT S. SLATER, CALIFORNIA WATER LAW AND POLICY §§ 3.01 – 3.21 (2015);
12 B.E. WITKIN, SUMMARY OF CALIFORNIA LAW, Real Property § 958 (10th ed. 2005 &
Supp. 2016).
Correlative rights. Refers to the relative rights of usage to a particular source of water. Under this
doctrine, each riparian and overlying landowner has an equal right to all the water that can be used for
reasonable and beneficial purposes on his or her land. The correlative right is a shared right of some
proportion to the water supply, which is measured by the equal and mutual rights of the other riparian or
overlying owners.
See:
62 CAL.JUR.3D Water § 381 (2005 & Supp. 2017);
SCOTT S. SLATER, CALIFORNIA WATER LAW AND POLICY §§ 3.14 - 3.15 (2015);
12 B.E. WITKIN, SUMMARY OF CALIFORNIA LAW, Real Property § 959 (10th ed. 2005 &
Supp. 2016).
Pueblo Rights - Pueblo rights are rights to the use of water granted to certain municipalities that are
successors to a Spanish-law pueblo. This is a distinct right from either riparian or appropriative rights.
California cities that evolved from Spanish or Mexican pueblos (most notably Los Angeles and San
Diego) possess the right to the beneficial use of all naturally occurring surface and ground waters from a
stream flowing through the original pueblo watershed. Importantly, this right grows with the city as it
expands; that is, the right is not limited to the needs of inhabitants of just the original pueblo boundaries.
Because pueblo rights predate other kinds of water rights recognized after statehood, cities that possess
pueblo rights have rights that are generally superior to riparian and appropriative rights. Therefore the
pueblo right is the most powerful water right that exists. The cities of Los Angeles and San Diego have
had their pueblo rights recognized by judicial decisions. 14
14 For an analysis that calls into question the basis for the courts’ acceptance of the pueblo right, see
NORRIS HUNDLEY, JR., THE GREAT THIRST 50-60 (rev. ed. 2001).
8
See:
62 CAL.JUR. 3D Water §§ 60 - 66 (2005 & Supp. 2017);
SCOTT S. SLATER, CALIFORNIA WATER LAW AND POLICY §§ 5.01 - 5.07 (2015);
12 B. E. WITKIN, SUMMARY OF CALIFORNIA LAW, Real Property § 918 (10th ed. 2005 &
Supp. 2016).
Federal Reserved rights (or Indian Reserved Rights or Tribal Rights) - This doctrine allows the
federal government to claim water rights for land that it has withdrawn from the public domain for a
specific purpose. The concept was born in the 1908 U.S. Supreme Court decision of Winters v. United
States, 207 U.S. 564 (1908). The essence of the decision is that when the United States government
withdrew lands from the public domain for the creation of Indian Reservations, it was implied that the
withdrawal included such water as was necessary to accomplish the purpose of the reservation. Thus, the
reserved rights of an Indian reservation have priority as of the date of the establishment of the reservation
and are not subject to appropriation under state law. The reserved rights doctrine was later expanded by
the decision of Arizona v. California, 373 U.S. 546 (1963) to include not just Indian reservations, but
other federal reserves such as national parks. The concept applies to both surface waters and
groundwater. Federally reserved waters are exempt from appropriation under state law.
An important limitation is that the reserved right is limited to what is needed to accomplish the original
purpose of the reservation, that is, the reserved right is not open-ended and expanding.
See:
62 CAL.JUR. 3D Water § 56 (2005 & Supp. 2017);
SCOTT S. SLATER, CALIFORNIA WATER LAW AND POLICY §§ 15.01 - 15.13 (2015);
A. DAN TARLOCK, LAW OF WATER RIGHTS & RESOURCES §§ 9.38 - 9.50 (2016);
Theodore B. Olson, Federal “Non-Reserved” Water Rights, 6 Op. Off. Legal Counsel
328 (1982).
Contract rights (or Transfers) - A party holding a water right may sign a contract to supply an amount
of water to another party. A contractual entitlement is not a water right, but an enforceable contract right
that is linked to a water right. The majority of surface water used in California is appropriated by a water
supply agency (such as the Bureau of Reclamation or an irrigation district) and then distributed to
customers by way of contracts. For example, the Central Valley Project districts have contracts with the
Bureau of Reclamation for the delivery of water (the Bureau holding appropriative rights), the water then
being delivered to individual landowners through further contracts. This sometimes complicated area is
usually covered under the topic of “transfers.”
A useful online guide with a discussion of transfer issues is “A Summary of the California Law of Surface
Water and Groundwater Rights” which was prepared by a law firm specializing in water law:
https://www.co.sutter.ca.us/contents/pdf/pw/wr/gmp/WaterRightsSummary.pdf
See:
SCOTT S. SLATER, CALIFORNIA WATER LAW AND POLICY §§ 10.01 - 10.09 (2015);
Arthur Littlefield and Eric L. Garner, California Water Law II, Chp. 8, “Water Transfers”
(2007);
Brian E. Gray, The Modern Era in California Water Law, 45 Hasting L.J. 249, 272 (199394);
9
12 B.E. WITKIN, SUMMARY OF CALIFORNIA LAW, Real Property § 928 (10th ed. 2005 &
Supp. 2016).
B. State Agencies
Water is very heavily regulated by the state of California. There are literally hundreds of boards,
commissions, water districts, irrigation districts, etc., which play a legal role in how water is used in
California. It is very challenging to fully understand the individual roles and responsibilities of these
many agencies. As one commentator observed: “The vast and often bewildering array of applicable laws
are administered by an equally vast and bewildering array of often competing governmental agencies.” 15
I. State Water Resources Control Board (http://www.swrcb.ca.gov/)
(a) Purpose & History
The State Water Resources Control Board (the SWRCB) is the primary agency responsible for managing
the state's water resources. According to its website, the agency: ". . . allocates water rights, adjudicates
water right disputes, develops statewide water protection plans, establishes water quality standards, and
guides the nine Regional Water Quality Control Boards located in the major watersheds of the state.” It is
also the responsible state agency for purposes of any federal environmental laws concerning water
quality. Understanding the roles and responsibilities of the SWRCB is the best place to start when
learning about how water is managed in California.
The broad mission of the SWRCB is established by the authority of Water Code § 174, which states:
The Legislature hereby finds and declares that in order to provide for the orderly and efficient
administration of the water resources of the state it is necessary to establish a control board which
shall exercise the adjudicatory and regulatory functions of the state in the field of water resources.
It is also the intention of the Legislature to combine the water rights and the water pollution and
water quality functions of state government to provide for consideration of water pollution and
water quality, and availability of unappropriated water whenever applications for appropriation of
water are granted or waste discharge requirements or water quality objectives are established.
As these paragraphs state, the board is responsible for two major programs: (1) water rights (the
permitting system for appropriative uses), and (2) water quality (water pollution and water quality issues).
As broad as this mandate is, it is crucial to understand that the board does not regulate all waters in
California. It does not regulate groundwater and does not regulate “RPP” rights (Riparian, Pueblo and
Pre-1914 appropriative rights). However, it can act to prevent illegal diversion and waste of all categories
of water in California.
The present SWRCB was created in 1967 (1967 Cal. Stat. 1441) to replace the State Water Rights Board
(itself established in 1956 to administer the state’s system of acquiring appropriative rights). The
SWRCB also assumed the water pollution planning and control duties of the State Water Quality Control
15 Weber, supra note 2, at 971.
10
Board (established originally as the State Water Pollution Control Board in 1949 and renamed to the State
Water Quality Control Board in 1963). The creation of the SWRCB was thus was a significant joinder of
the oversight of water rights and water quality issues. With the passage in 1969 of the Porter-Cologne
Water Quality Control Act, the board was given important additional functions. 16
The SWRCB consists of five members appointed by the Governor and each member serves a four-year
term. The composition of the SWRCB members is established by statute (See Water Code, Article 3, State
Water Resources Control Board, §§ 174-189.5).
The SWRCB has been a branch of the California Environmental Protection Agency since the Governor’s
Reorganization Plan No. 1 of 1991. Since 2003, the SWRCB is funded by fees imposed on its holders of
permits and licenses (See Water Code, §1525, et. Seq.).
A good summary of the structure and functions of the SWRCB can be found at Manaster & Selmi,
California Environmental Law & Land Use Practice, Chapter 30, Agencies Regulating Water Quality, 3.
State Water Resources Control Board (Mathew Bender). The structural organization of the SWRCB is
detailed in Title 23 of the California Code of Regulations, Division 3, “State Water Resources Control
Board and Regional Water Quality Control Boards.”
(b) Law-making functions
Like many agencies, the SWRCB creates law through regulations, orders and decisions.
Locating regulations
Title 23 of the California Code of Regulations (the “CCR”) is entitled “Waters,” and this is where most of
the regulations of the SWRCB are found. The official publisher of the CCR is Barclays (a division of
Thomson Reuters), and a free online version is available at: https://www.calregs.com. This online
version is searchable by keyword.
The print version of the CCR is contained in 38 looseleaf binders and the last binder is the “Master
Index.” This index volume contains the “subject index,” which offers numerous entries related to water,
including “Water,” “Water Appropriation,” “Water Pollution & Control,” etc. In the “Table of Statutes to
Regulations,” the sections of the Water Code are listed in order, followed by the corresponding
regulations issued under the authority of that particular code section.
The full-text of the CCR is available on both LexisAdvance and Westlaw, and these commercial services
offer the usual advantages of their sophisticated keyword search capabilities. A regulation on Westlaw’s
version of the CCR will sometimes provide links to “citing references,” which might be a reference to the
regulation in a secondary source or appellate brief.
16 To understand the mechanics of the creation of the SWRCB, an excellent source is A PROPOSED
WATER RESOURCE CONTROL BOARD: A STAFF STUDY, written by Judge Ronald B. Robie while he was a
staff member of the Assembly Committee on Water. CALIFORNIA LEGISLATURE, ASSEMBLY INTERIM
COMM. ON WATER, A PROPOSED WATER RESOURCES CONTROL BOARD: A STAFF STUDY (July 1966).
11
The SWRCB annually publishes the “California Code Regulations, Title 23 – Excerpts of Divisions 3-5
Applicable to the Administration of Water Rights,” which is a compilation of the current regulations
concerning the Board’s administration of water rights. This publication is available at:
http://www.swrcb.ca.gov/laws_regulations/docs/wrregs.pdf.
New regulatory activity of the board can be tracked through the California Regulatory Notice Register
(“Z register”). This register is published by the California Office of Administrative Law. It is a weekly
publication that contains notices of proposed regulatory actions by state regulatory agencies to adopt,
amend, or repeal regulations contained in the California Code of Regulations. It is arranged by title
section of the California Code of Regulations, and so the SWRCB regulations will typically appear under
Title 23 “Waters.” This register is available online at: http://www.oal.ca.gov/notice_register.htm.
Once regulations are proposed, the public has a right to comment. The board has created a webpage for
this purpose at: http://www.swrcb.ca.gov/public_notices/comments/index.shtml. This website permits
the public to submit comments and read comments submitted by others.
If an entity violates a regulation, the SWRCB may bring an administrative action. Water Code § 1846
states that a person may be fined for such violation.
Locating Decisions, Orders and Judgments
The SWRCB is involved in adjudications and enforcement actions. The board may litigate if the terms of
its permits and licenses are violated. A party aggrieved by a decision of the board may file a writ of
mandate in order to seek review in a superior court of California (See Water Code §1126).
See:
SCOTT S. SLATER, CALIFORNIA WATER LAW AND POLICY §§ 908 - 915 (2015);
12 B. E. WITKIN, SUMMARY OF CALIFORNIA LAW, Real Property §§ 925 - 927 (10th ed.
2005 & Supp. 2016);
KENNETH A. MANASTER AND DANIEL P. SELMI, CALIFORNIA ENVIRONMENTAL LAW &
LAND USE PRACTICE § 30.23 (1989).
The SWRCB website contains the full-text of the following “decisions, orders and judgments”:
• Water Quality orders - Orders involving cases where the SWRCB, or one of the Regional Water Quality
Control Boards, has pursued violations of water quality standards. Many of the orders involve
underground storage tanks. The board’s website has the full-text of orders going back to 1970.
• Water Rights Decisions – decisions of the SWRCB primarily upon applications for appropriation of
water. Coverage begins with the first decision issued in 1924. The water rights decisions are commonly
referred to by their decision number (e.g., “Decision 1485”).
• Water Rights Orders – orders issued as the result of enforcement actions by the SWRCB, typically for
violation of regulations. Orders are available from as early as 1961.
• Water Rights Judgments/Determinations – Judgments entered by the SWRCB or a superior court
pursuant to “stream wide” adjudication proceedings. These proceedings are authorized under Water Code
§2500 et seq. Original documents in .pdf format are provided.
12
See:
http://www.swrcb.ca.gov/board_decisions/adopted_orders/
http://www.swrcb.ca.gov/waterrights/board_decisions/adopted_orders/
Commercial databases
Westlaw
The “California Environmental Administrative Decisions” database contains the full-text of
SWRCB decisions and orders back to 1924.
LexisAdvance
The “CA Water Resources & Toxic Substances Control” database contains the full-text of
decisions and orders from the SWRCB back to 1924 (as well as decisions of the Department of
Toxic Substances Control).
(c) Water permits
A major responsibility of the SWRCB is reviewing applications for the appropriation of water. Any
person desiring to appropriate surface water in California must file a petition with the SWRCB (this
includes not just individuals, but public agencies, cities, counties and the state and federal government).
The scope of the SWRCB’s authority is outlined in Division 2, part 2 of the Water Code (§§ 1200
forward). The applicable regulations detailing the application procedures for a permit are found at
Chapter 2, “Appropriation of Water,” in Title 23 of the CCR, Division 3. State Water Resources Control
Board and Regional Water Quality Control Boards.
Before a permit may be granted, the Board must find the following: (1) there must be a specific
applicant, or water user seeking the permit; (2) a proper application must be filed; (3) the applicant must
intend to put the water to beneficial use; and (4) there must be sufficient unappropriated water available to
supply the proposed use. Once an application is filed, the Board must give notice and a period
commences in which persons may protest the application. If an application is denied, then the decision
can be challenged in a Superior Court by way of a writ of mandate. If a permit is granted, the applicant
may began the approved appropriation of water. After a period of monitoring to ensure that the terms of
the permit are being met, a license may be issued. 17
Traditionally, the SWRCB and its predecessors granted applications to appropriate water as long as there
was water available in the system. Only gradually did the courts recognize that the “public interest”
might require that an appropriation request be denied, even if water was available. The case of National
Audubon Soc’y v. Superior Court, 658 P.2d 709 (1983) contains a discussion of how the “public interest”
emerged as a consideration when considering requests for appropriation of water.
The SWRCB maintains a list of standard permit and license terms which it will ordinarily include in any
permit to appropriate water. Article 14 of title 23 of the California Code of Regulations is entitled
17 See, http://www.waterboards.ca.gov/waterrights/water_issues/programs/applications/.
13
“Standard Permit Terms & Conditions.” Section 780 of that article, “Standard Permit Terms” states that
the board maintains a list of standard terms and sets forth several terms that shall be included in every
permit granted by the board. This list of all standard terms used in any type of permit is available at:
http://www.waterboards.ca.gov/waterrights/water_issues/programs/permits/ Important information
contained in a permit include purpose of the use, the point of diversion and quantity allowed.
Permits for appropriation are now searchable online. The SWRCB created the eWRIMS database in
2007. eWRIMS stands for “Electronic Water Rights Information Management System” and allows for
researching permits issued through the board:
http://www.waterboards.ca.gov/waterrights/water_issues/programs/ewrims/
The SWRCB describes the database as follows: “The eWRIMS Database System provides information
about water rights throughout California. You can search for water rights by several criteria, including the
water right owner's name, watershed, stream system, and county.”
The database allows the researcher to select from various fields when entering a search. These fields
include “Water Right Type” (e.g., appropriative), status, county, “use type,” etc. 18
To search more broadly for water rights in California, a private company, Ponderosa Advisors LLC, has
recently added California to the states covered by its “Water Sage” database. This database combines all
of a state’s available datasets on water rights, priority dates, land ownership, groundwater wells, etc. into
a searchable database that maps this data, allowing the user to identify the water rights for any particular
piece of land.19
See:
A. DAN TARLOCK, LAW OF WATER RIGHTS & RESOURCES, §§ 5.45 - 5.52 (2016);
SCOTT S. SLATER, CALIFORNIA WATER LAW AND POLICY § 2.14 (2015).
(d) Measuring water usage
18 The eWRIMS database has been criticized as having inadequate information for determining the
claimants upon California’s water resources and the extent and basis of those claims. In “A Water Rights
Database for California’s Future,” Michael Kiparsky sets forth what he believes would constitute an
adequate online database that would serve as a complete and functional source of legal information. At
the very least, such a database would contain comprehensive and searchable information on the legal
basis and character of all water rights in the state. For post-1914 appropriative rights, the database should
include all applications, resulting permits and licenses, orders or decisions amending these rights and any
related environmental documents. For pre-1914 appropriative rights, the database should include the
notices that were the basis of the rights under the Civil Code and common law. For riparian rights, the
database should include the patents and other land records necessary to show the basis and scope of those
rights. See Michael Kiparsky, A Water Rights Database for California’s Future, LEGALPLANET (July 7,
2015), http://legal-planet.org/2015/07/07/a-water-rights-database-for-californias-future/.
19 http://www.watersage.com.
14
Under Water Code § 5101, any person that diverts water (regardless of the basis of the water right) must
file a “Statement of Water Use and Diversion” with the SWRCB. These statements must identify the
stream or lake from which the water is diverted, the name and address of the diverter, the point of
diversion and place of use, the purpose of use, the months during which water is diverted or used, and the
capacity of the storage and diversion facilities. These statements must be filed triennially and there is a
civil penalty for failure to do so.
With the passage of Senate Bill 88 in 2015, the SWRCB will have access to much greater information on
the amount of water actually being diverted by water users in California, whether the use is based on a
riparian or appropriative right. This law requires measuring and annual reporting from any water user
who uses more than 10 acre feet per year. This was in response to the frequent observation that California
had poor information on how much water was actually being diverted by the various claimants on the
state’s water supply.20 These requirements are codified at §§ 1840-1841 of the Water Code.
(e) Water quality planning
The SWRCB is authorized to formulate “water quality control plans” under the Porter-Cologne Water
Quality Control Act, specifically Water Code §13170. Such water quality control planning by the states is
mandated under the federal Clean Water Act, 33 U.S.C. §1313. The goal of such planning is to develop
comprehensive plans to establish and protect water quality goals.
Under Water Code §13050, a water quality control plan consists of a designation of all of the following
for waters within a specific area:
(1) Beneficial uses to be protected;
(2) Water quality objectives;
(3) A program of implementation needed for achieving water quality objectives.
Water quality standards contained in these plans then act as limitations on the quality of water that can be
discharged into the water system at issue, i.e., the standards are translated into effluent limitations written
into NPDES permits and Waste Discharge Requirements.
The water quality plan for the San Francisco Bay/ Sacramento and San Joaquin Delta Estuary (the BayDelta Plan) has been by far the most high-profile and important of the SWRCB plans. A list of all plans
issued by the SWRCB can be found at: http://www.swrcb.ca.gov/plans_policies/#plans
An instructive document that details how the SWRCB complies with federal Clean Water Act planning
requirements, and additional requirements in the Code of Federal Regulations, is entitled “Report in
Support of U.S. Environmental Protection Agency’s Review of California’s Continuing Planning Process
– May 2001.” This report is available on the above water quality control plan website.
20 See, e.g., Grantham, Theodore E. and Joshua H. Viers, 100 Years of California’s Water Rights System: Patterns,
Trends and Uncertainty (2014 Environ. Res. Lett. 9 084012), which used the eWRIMS database as a basis for
studying the difference between legally authorized appropriations and actual surface water flow measurement.
15
Per Water Code§13240, the Regional Water Quality Control Boards develop such control plans (“basin
plans”) for their respective regions, which plans are also available on the SWRCB website.
See:
50 CAL.JUR. 3D Pollution & Conservation Law § 138 (2013 & Supp. 2017);
KENNETH A. MANASTER AND DANIEL P. SELMI, CALIFORNIA ENVIRONMENTAL LAW &
LAND USE PRACTICE §§ 30.20 – 30.22 (1989).
II. Regional Water Quality Control Boards
There are nine Regional Water Quality Control Boards that operate under the supervision of the SWRCB.
These regional boards were created in 1970 by the Porter-Cologne Act. These boards exercise
rulemaking and regulatory control over their geographic basins. This includes setting water quality
standards, administering a variety of environmental regulations and issuing permits. For example, these
boards review applications for waste water discharge permits, and may deny or limit the ability of an
entity to discharge waste water in order to protect water quality. The SWRCB reviews petitions that
contest determinations and actions of the regional boards.
The nine Regional Water Quality Control Boards are:
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Region 1– North Coast Regional Board - http://www.waterboards.ca.gov/northcoast/
Region 2 - San Francisco Bay Regional Board - http://www.waterboards.ca.gov/sanfranciscobay/
Region 3 - Central Coast Regional Board - http://www.waterboards.ca.gov/centralcoast/
Region 4 - Los Angeles Regional Board - http://www.waterboards.ca.gov/losangeles/
Region 5 - Central Valley Regional Board - http://www.waterboards.ca.gov/centralvalley/
Region 6 - Lahontan Regional Board - http://www.waterboards.ca.gov/lahontan/
Region 7 - Colorado River Basin Regional Board - http://www.waterboards.ca.gov/coloradoriver/
Region 8 - Santa Ana Regional Board - http://www.waterboards.ca.gov/santaana/
Region 9 - San Diego Regional Board - http://www.waterboards.ca.gov/sandiego/
Documents available through each board’s website include a basin plan, summaries of enforcement
actions, notices of violations and board decisions and orders.
See:
50 CAL.JUR. 3D Pollution & Conservation Law § 141 (2013 & Supp. 2017);
KENNETH A. MANASTER AND DANIEL P. SELMI, CALIFORNIA ENVIRONMENTAL LAW &
LAND USE PRACTICE §§ 30.10 – 30.13 (1989).
III. Other State Agencies
Department of Water Resources (DWR) - http://www.water.ca.gov/
The Department of Water Resources was created by special session in 1956, largely to manage the
creation of the State Water Project (Stats. 1957, 1st Ex. Sess., ch.52). The Division of Water Resources,
(within the Department of Public Works) and the Water Project Authority were abolished and their
functions transferred to the new DWR. The current statutory framework of the Department in the Water
Code can be found in Water Code §§ 120-147. Where the SWRCB is charged with administering water
rights and water quality programs, the DWR is primarily responsible for overseeing statewide usage and
16
maintaining the state’s water supply infrastructure. The DWR is the entity that holds water rights on
behalf of the state. Structurally, the DWR is part of the California Natural Resources Agency.
Like the SWRCB, the Department of Water Resources proposes regulations which, when finalized, are
published in the California Code of Regulations. Division two of title 23 contains the regulations of the
Department, set forth in 22 chapters.
The DWR produces the “California Water Plan,” a planning document that analyzes the state’s water
supplies and assesses agricultural, urban and environmental water uses. This plan is available at:
http://www.water.ca.gov/waterplan/. This is arguably the best single source for understanding the current
state of California’s water resources and the state’s management goals. Water Code §§ 10004 – 10013
requires that the department issue this report every five years, and the DWR issues regular updates. The
DWR refers to these updates as the “Bulletin 160” series.
The DWR also produces the “Bulletin 118” series, which is a lengthy analysis of California’s
groundwater basins and their management issues. The responsibility to conduct such an investigation is
set forth in Water Code § 12924. The last official update to “statewide” Bulletin 118 was in 2003
(Bulletin 118 – Update 2003), although a further revision is underway following the passage of the
SGMA. An interim update was released in December of 2016 and is available on the Department’s
website: http://www.water.ca.gov/groundwater/bulletin118/update.cfm. The information in the interim
update will help in the implementation of the SGMA.
California Water Commission (CWC) - https://cwc.ca.gov/Pages/Home.aspx
The CWC is a nine member commission whose members are appointed by the Governor and confirmed
by the legislature. The California Water Commission is the state agency that advises the Department of
Water Resources, approves any new Department regulations and oversees the operation of the State Water
Project. The Water Commission was created in 1957 and is authorized by §§150 et. seq., of the Water
Code. The Commission became somewhat inactive by the late 1990’s, but became active again following
the passage of the 2009 Delta Reform Act.
California Natural Resources Agency - http://resources.ca.gov/
The Natural Resources Agency has significant involvement in protecting sensitive natural resources
within the state. The Secretary of the agency issues regulations that implement California Environmental
Quality Act (CEQA). The Department of Water Resources is the most important department within the
agency that manages water resources, but the Department of Fish & Wildlife has important functions in
regulating the waters of California for purposes of protecting fish stocks.
Special Districts
In California there are a wide variety of agencies with the word “district” in their name that are involved
with water. “Water districts” and “irrigation districts” are popular terms used in legal resources, and they
appear to be used interchangeably. A thorough discussion of the various water-related districts in
California can be found at volume 63 California Jurisprudence 3d, Water, XIX “Irrigation Districts and
Similar Organizations, A. Nature, Kinds, and Purposes of Districts.”
17
The Water Code contains several divisions addressing how particular types of districts are organized and
how they operate:
• Irrigation districts, see Water Code §§20500, et Seq.
• County Water Districts, see Water Code §§3000, et. Seq.
• California Water Districts, see Water Code §§34000, et. Seq.
• California Water Storage District Law, see Water Code §§39000, et. Seq.
• Reclamation Districts, see Water Code §§50000 et. Seq.
• County Waterworks Districts, see Water Code §§55000 et. Seq.
• Water Replenishment Districts, see Water Code §§60000 et. Seq.
• Levee Districts, see Water Code §§70000 et. Seq.
• Municipal Water Districts, see Water Code §§71000 et. Seq.
• Water Conservation Districts, see Water Code §§74000, et Seq.
Districts may be created by general legislative acts or by their own special legislative act (e.g., the Santa
Clara Valley Water Management District was created in 1951 by the Santa Clara Valley Water District
Act). These districts are very important in the management of water resources within their jurisdiction
and their decisions lead to a great amount of litigation. The same set of laws appears to apply to these
districts, whether it is an irrigation district, a conservation district, etc.
See:
63 CAL. JUR. 3D Water §§ 799 - 813 (2005 & Supp. 2017).
Irrigation districts in particular have been extremely important to the development of agriculture in
California, as a tremendous amount of water is delivered to farming operations through these entities.
The existence of irrigation districts began with the Wright Act of 1887 (the “Irrigation District Act”)
which permitted local landowners to vote to form a district. These districts have extensive power,
including the power to take land and water rights through eminent domain, to make contracts to construct
irrigation infrastructure and to tax.
The California State Controller’s Office provides data on all special districts in California and classifies
them according to “activity type.” Using these data tables, it is possible to determine the identify of all
special districts in California involved with water management. The “Special District Listing” table from
the Controller’s office uses the following “activity types” that are water-related:
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California Water
County Water
County Waterworks
Drainage
Flood Control and Water Conservation
Flood Control Maintenance Area
Irrigation
Levee
Municipal Water
Reclamation
Storm Water Drainage and Maintenance
Water Agency or Authority
18

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Water Conservation
Water Replenishment
Water Storage
Reviewing the data for 2016 reveals that there are 777 special districts in California involved with water
management, out of a total of 5209 districts. This data can be found on the Controller’s website at:
https://bythenumbers.sco.ca.gov/
The Association of California Water Agencies (ACWA) is an association of the 430 public agencies in the
state that are involved in the delivery of water. The ACWA directory provides information on its many
members and is available at: http://www.acwa.com/membership/directory
Mutual Water Companies
Mutual water companies are not agencies but private companies controlled by stock owners. This form of
organization arose in the late 1800’s as an attempt to allow small farmers and landowners to band together
in their effort to obtain water for irrigation. The right to receive water through such companies is based
upon stock ownership. They are organized as non-profit corporations under §§14300 -14307 of the
Corporations Code, Chapter 1, Water Companies. Mutual water companies still play a significant role in
the delivery of water in rural areas of California. They are regulated by the Water Code, the SWRCB and
the regional water quality control boards.
Governor’s Office
The Governor plays a significant role in shaping California’s water policy. Through the issuance of
executive orders, the Governor can direct actions of the state’s agencies, including the Department of
Water Resources and the State Water Resource Control Board. For example, in response to historic
drought conditions in 2015, the Governor issued executive order B-29-15, directing the SWRCB to
promulgate statewide restrictions on water usage.
The Governor’s website has an archive of executive orders at:
https://www.gov.ca.gov/s_executiveorders.php. This archive begins in 1999, but is not searchable.
C. Constitution & Statutes
The institutional framework that control the state’s water use and supplies is composed of an “intricate
system” of common law principles, constitutional provisions, state and federal statues, court decision, and
contracts and agreements.21 For the researcher, however, this is not an easy maze to navigate. California
water law has been referred to as “the most confusing of all natural resource laws.” 22
21 See California Water Plan Update 2013, volume 4, p.1 (available at:
http://www.water.ca.gov/waterplan/cwpu2013/final/).
22 Russell M. McGlothlin & Jena Shoaf Acos, The Golden Rule of Water Management, 9 Golden Gate U.
Envtl. L.J. 109, 130 (2015-2016).
19
(1) Constitution – the California Constitution currently contains several sections that directly address
water. These are contained in Article X, Sections 1-7. These constitutional provisions involve a variety
of topics, although several are mainly of historical interest.
The most important Constitutional provision concerning water is Article X, section 2, which contains the
crucial provision that all use of water in California must be for a beneficial purpose and reasonable in
quantity. This section states: "… the general welfare requires that the water resources of the State be put
to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or
unreasonable method of use of water be prevented, and that the conservation of such waters is to be
exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the
public welfare." The enactment of this provision marked the first major step back from the unfettered
common law rights of water use.
Section 2 was created by a constitutional amendment of 1928 (passed by Proposition 7 in the November
1928 general election). This amendment was prompted by the case of Herminghaus v. Southern
California Edison, 252 P. 607 (Cal. 1926). In Herminghaus, a riparian rights holder had successfully sued
to block the upstream appropriative damming of water for electrical power generation, despite the fact
that the riparian landowner's use of water was considered by the court to be rather wasteful. The court
stated that a riparian right was not limited by any notions of reasonableness of use. The public reaction
was very critical and was the impetus for the passage of the constitutional amendment.
A substantial renumbering and rearrangement of the Constitutional provisions on water occurred in 1976,
by way of voter approval in the June primary election. An excellent discussion on the meaning and
historical development of California’s constitutional provisions concerning water can be found in the
chapter entitled “Article X. Water,” in The California State Constitution, by Grodin, Shanske and Salerno
(2d ed. 2016).
(2) Statutes
The California legislature has passed many statutes relating to water use and water rights in California.
The majority of these laws will be contained in the Water Code and the Public Resources Code. The Fish
& Game Code is also relevant as it has several provisions which regulate the flow of water in order to
protect fish stocks.
How to find statutes
The Water Code, Public Resources Code and Fish & Game Code can be found in West’s Annotated
California Codes and Deering’s California Codes Annotated, which are available both in print and on
Westlaw and LexisAdvance. By using an annotated version of the Code, the researcher is provided with
further references such as case annotations, references to regulations, citations to law review articles, etc.
An unannotated current version of the code is also freely available through the California legislature’s
website at: http://leginfo.legislature.ca.gov/faces/codes.xhtml.
The Water Code is divided into 35 divisions. It was first enacted in 1943 (see Stats. 1943, c. 368), and
went into effect August 4, 1943. However, many provisions were derived from existing provisions in the
20
Civil Code (e.g., Water Code § 102 was derived from Civil Code § 1410). To trace the derivation of
particular code sections, use an annotated code and refer to the historical notes following the text of the
statute.
The legislature commented on the broad coverage intended for the new Water Code with this introductory
note:
An Act -to establish a water code, thereby consolidating and revising the law relating to water, including
the use of water, the acquisition and regulation of water rights, the control and utilization of
water, the distribution of water, the supervision of dams, the use of and rights in streams, wells,
pumping plants, and conduits, the establishment and operation of public districts relating to water,
and to repeal certain acts and parts of acts specified herein.
The Water Code covers a vast number of topics. It includes sections on municipal and regional specific
water agencies and districts and also addresses irrigation, dams, fishways, flood control, drainage and
reclamation. Bonds, assessments, and taxes are also part of this Code. Many of California’s water-related
statues are found in “uncodified acts.” The West annotated code includes these as the “Water Code
Appendix,” following the Water Code volumes, while Deering’s calls these volumes “Water Code –
Uncodified Acts.”
To locate a specific section within the Water Code, both the West and Deering’s annotated codes have
code specific indexes at the end of the Water Code volumes.
The current arrangement of the 35 divisions of the Water Code is as follows:
General Provisions
Division 1. General State Powers Over Water [100-540]
Division 2. Water [1000-5976]
Division 3. Dams and Reservoirs [6000-6501]
Division 4. Wells, Pumping Plants, Conduits and Streams [7000-7075]
Division 5. Flood Control [8000 - 9651]
Division 6. Conservation, Development, and Utilization of State Water Resources [10000 - 12999]
Division 7. Water Quality [13000 - 16104]
Division 10. Financial Supervision of Districts [20200 - 20220]
Division 11. Irrigation Districts [20500 - 29978]
Division 12. County Water Districts [30000 - 33901]
Division 13. California Water Districts [34000 - 38501]
Division 14. California Water Storage District Law [39000 - 48401]
Division 15. Reclamation Districts [50000 - 53901]
Division 16. County Waterworks Districts [55000 - 55991]
Division 17. Drainage [56000 - 56130]
Division 18. Water Replenishment Districts [60000 - 60622]
Division 19. Levee Districts [70000 - 70272]
Division 20. Municipal Water Districts [71000 - 73001]
21
Division 20.5. Wholesale Regional Water System Security and Reliability Act [73500 - 73514]
Division 21. Water Conservation Districts [74000 - 76501]
Division 24. Safe, Clean, Reliable Water Supply Act [78500 – 78702]
Division 26. Safe Drinking Water, Clean Water, Watershed Protection, and Flood Protection Act
Division 26.5. Water Security, Clean Drinking Water, Coastal and Beach Protection Act of 2002
Division 26.7. Water Quality, Supply, and Infrastructure Improvement Act of 2014
Division 27. Purchase and Sale of Electric Power
Division 30. Calconserve Water Use Efficiency Revolving Loan Program
Division 31. Bay Area Water Supply and Conservation Agency
Division 31.7. San Francisco Bay Area Regional Water System Financing Authority
Division 33. Integrated Water Supply and Flood Protection Planning, Design, and Implementation
Division 35. Sacramento–San Joaquin Delta Reform Act of 2009
It should be noted that at the beginning of the West’s annotated version of the California Water Code is a
section entitled “Commentary – Overview of California Water Rights and Water Quality Law.” This is an
extensive discussion of the law of California water, divided into the following sections: “Introduction,”
“the Proprietary Era,” “the Era of Transition,” “the Modern Era: Rule of Reasonableness and Public
Interest,” “Where we Stand Today: Recent Developments,” and “Federal-State Relations.” This article
was originally published as William R. Attwater & James Markle, Overview of California Water Rights
and Water Quality Law, 19 Pac. L.J. 957 (1988). The version printed in the Water Code has a 2001
supplement.
The SWRCB publishes the “Statutory Waters Rights Law and Related California Code Sections,” which
is a compilation of statutes relevant to water law. The selected Code Provisions are mainly from the
Water Code but a few sections of the Public Resources and Fish & Game Code are included as well. This
publication is available at: http://www.swrcb.ca.gov/laws_regulations/docs/wrlaws.pdf
This is an annual publication which is sometimes updated during the year.
The SWRCB also annually publishes “California Statutes Related to Drinking Water.” This is a
compilation of the many California statutes relating to water consumed by the public (it was formerly
referred to as the “blue book”). This document demonstrates how many statutes relating to water are
found in not just the Water Code, but also in codes such as Corporation, Education, Food & Agriculture,
etc. This publication is available at:
http://www.waterboards.ca.gov/drinking_water/certlic/drinkingwater/documents/lawbook/dwstatutes2016-07-15.pdf
(3) Finding Current Legislation
Every legislative session sees new bills introduced concerning water law topics. The best method for
researching new bills that add to or amend the current code is to use the “table of sections affected”
available on the legislature’s website. This table pinpoints the sections of the code that are being added or
amended by any bill introduced during that session. While the Water Code is the most important code
22
title for water issues, other code titles such as the Public Resources Code are important as well. This table
is available online at: http://www.leginfo.ca.gov/legpubs-tosa.html
Because water law issues are dealt with in not just the Water Code, the use of the “Legislative Index” is
also recommended. “Water” is a subject term used in this index prepared by the Legislature. This index
is available online at: http://www.leginfo.ca.gov/legpubs-legindex.html. There are several other related
subject entries, such as “Water Agencies” and “Watersheds.”
The legislature’s website also provides a search capability for that session’s bills. Using the keyword
search function for searching the text of current bills can also produce useful results as long as you have
fairly specific search terms.
When bills are introduced in the California legislature, the two most important committees for waterrelated bills are the Senate Committee on Natural Resources & Water and the Assembly Committee on
Water, Parks & Wildlife. The websites of these committees contain useful background information and
documents on bills under consideration.
Senate Committee on Natural Resources & Water:
“Hears bills relating to conservation and management of public resources, fish and wildlife,
regulation of oil, mining, geothermal development, acid deposition, wetlands and lakes, global
atmospheric effects, ocean and bay pollution, forestry practices, recreation, parks and historical
resources.”
See: http://sntr.senate.ca.gov
Assembly Committee on Water, Parks & Wildlife:
“Committee Jurisdiction: Primary jurisdictions are water resources, flood management, fish and
game, parks and recreation, and wildlife.”
See: http://awpw.assembly.ca.gov/
Once any bill has been introduced in the California legislature, the legislature’s website provides the text
of the bill, amended versions of the bill, bill history, and bill analysis.
The “legislative hearings” section of the Maven’s Notebook website tracks legislative hearings on water
issues and provides useful summaries. See: https://mavensnotebook.com/category/featuredarticles/legislative-hearings-mavens-minutes/
(4) Commercial databases
Westlaw
The Westlaw database, “California Proposed & Enacted Legislation” permits more sophisticated search
capabilities than the California legislature’s website. For example, searching this database using the
phrase “Water Code” in the SUMMARY field is a good way of limiting your results to bills adding to or
amending the Water Code.
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LexisAdvance
LexisAdvance has the “CA Full-Text Bills” database which contains the full-text of California bills back
to 1991, providing good historical coverage. Like Westlaw, LexisAdvance permits much more
sophisticated full-text searching that the California Legislature’s website.
D. Cases
Courts have played an integral role in shaping California’s water laws, especially in the early years of
statehood. It was decades before California enacted an extensive system of statutes and regulations
governing water rights and so concepts such as prior appropriation and riparian rights were developed
through the early common law of California.
The majority of cases on water law issues will be state court cases. However, where the United States or
one of its agencies is a party, the suit will be heard in federal court.
Disputes over water rights can originate in either a state superior court or in the SWRCB, as they have
concurrent jurisdiction. However, the SWRCB’s jurisdiction does not extend to ground water.
Consequently, the only method to obtain comprehensive relief with respect to rights in groundwater is by
virtue of an adjudication that is filed in superior court.
California Code of Civil Procedure § 1094.5 governs judicial review of water right orders, including final
cease and desist orders that are issued by the SWRCB. Judicial review of a cease and desist order must be
sought by way of writ of mandate within 30 days of the final action by the SWRCB.
See: SCOTT S. SLATER, CALIFORNIA WATER LAW AND POLICY §§ 908 – 915 (2015).
A small sampling of the types of cases that might be filed in a California Superior Court:




Suit to determine water priorities in over drafted groundwater basin. City of Barstow v. Mojave
Water Agency, 99 Cal.Rptr.2d 294 (Cal. 2000).
Action to challenge State Water Resources Control Board regulation regarding stream water
diversion for protection of crops from frost. Light v. State Water Resources Control Board, 173
Cal.Rptr.3d 200 (2014).
Action filed by State, at request of State Water Resources Control Board, for injunction against
defendant, alleging unauthorized diversion of water. People v. Shirokow, 162 Cal.Rptr. 30 (1980).
Action for writ of mandate to require immediate compliance with statute requiring city water
department to release sufficient water from its dams to reestablish and maintain fisheries.
California Trout, Inc. v. Superior Court, 266 Cal.Rptr. 788 (1980).
How to find caselaw by topic
In print:
If researching in print, the basic tools are the West’s California Digest and the West court reporter system,
which will contain the full-text of state or federal opinions identified using the digest.
24
West’s California Digest, 2d
“Water Law” is a main topic heading in the West digest system. The topic is covered in volumes 42B and
42C of the print digests. “Water Law” now includes the former topics of “Waters & Water Courses,”
“Canals,” “Drains,” “Levees & Flood Control,” and “Navigable Waters.”
The present topic is divided as follows:
I. In General, k1000-k1024
II. Comprehensive Water Resource Planning and Management in General, k1025-k1059
III. Natural Watercourses, Lakes, and Ponds in General, k1060-k1082
IV. Groundwater: Subterranean and Percolating Waters, k1083-k1159
V. Diffuse Surface Waters, k1160-k1219
VI. Riparian and Littoral Rights, k1220-k1554
VII. Appropriation of Waters, k1555-k1699
VIII. Reserved Water Rights, k1700-k1733
IX. Artificial Ponds, Reservoirs, Channels, Dams, and Other Works, k1734-k1764
X. Prescriptive Rights in Water or For Use or Access to Waters, k1765-k1819
XI. General Adjudication of All Riparian, Appropriative, Reserved, and Other Rights in Watercourse,
Water Body, or Basin, k1820-k1859
XII. Public Water Supply, k1860-k2289
XIII. Reclamation, Irrigation, and Other Agricultural Use, k2290-k2504
XIV. Ice, k2505-k2514
XV. Navigable Waters, k2515-k2704
XVI. Drainage of Swamp or Lowlands By Public Authority, k2705-k2849
XVII. Levees and Flood Control through Public Works, k2850-k2919
XVIII. Canals for Navigational Use, k2920-k2989
XIX. Weather Modification, k2990-k2991
Using the West digest headings in conjunction with the West court reporters will easily lead the researcher
to relevant cases. The main index volumes of the West’s California Digest have two primary subject
headings: “Water Pollution” and “Waters & Water Courses.”
McKinney’s California Digest of Official Reports.
McKinney’s digest was discontinued in 2003, but could be of value for historical research. “Waters” is a
main topic heading in the McKinney’s index. The treatment of water law issues is much briefer than in
the West California Digest.
Statutory Water Rights Law and Related California Code Sections
This is an ongoing publication of the SWRCB (see above) and it includes a section entitled “Recent
Judicial Decisions.” This is a running list of significant state and federal court decisions on water rights
issues. This chronological listing begins in 1974 and currently provides summaries of 47 cases. The
inclusion of a case in this selection can be regarded as a sign of its importance in understanding the
current law in California.
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Online research:
Westlaw
Westlaw may be searched using the West Digest (topic & key number) system. As mentioned above,
“Water Law” is a main topic heading. The use of the digest system allows the researcher to quickly find
relevant caselaw.
LexisAdvance
LexisAdvance has “LexisNexis Headnotes,” which offer an alternate caselaw subject classification
system to the West Digest system. Once a relevant case is found on LexisAdvance, the headnotes appear
before the text of the decision, and the headnotes can by explored by the “Get Documents” or “View in
Topic Index” features. Either approach will lead to further cases involving that particular point of law.
The headnotes may also be viewed through the “Browse” function built into the front page of
LexisAdvance, by choosing “topics.”
In the LexisAdvance headnote system, “Water Rights” is placed under the broader topic of “Real
Property.” Water Rights are further divided into the following sub-headings:
• Accretion, Avulsion & Reliction
• Administrative Allocations
• Appropriation Rights
• Beneficial Use
• Boundaries
• Domestic Use
• General Overview
• Groundwater
• Mixed Appropriation & Riparian Rights
• Nonconsumptive Uses
• Riparian Rights
• Water Dispute Procedures
E. Secondary Sources
There are a large number of “secondary sources” that are useful when researching water law topics.
Secondary sources are commentaries about the law, such as treatises, encyclopedias and law journal
articles. When searching for these sources, they are sometimes listed under the broader topic headings of
“environmental law,” “real property” or “natural resources.”
A challenge to finding the best resource is the fact that aspects of water law can be covered in part by
titles in much broader topics. For example, the following CEB (California Education of the Bar) titles all
provide some coverage of water law topics: Practice under the California Environmental Quality Act,
California Easements & Boundaries: Law & Litigation, Neighbor Disputes: Law & Litigation and
California Municipal Law Handbook. For issues such as water quality and pollution, environmental law
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resources will offer a great deal of coverage. For issues concerning the relative rights of landowners in
water resources, a real property treatise might offer good treatment.
The following resources offer extensive coverage of California water law issues. Because California
water law often involves both state and federal law, these secondary sources will discuss both.
(1) California-specific secondary sources
California Jurisprudence, 3d (Thomson Reuters)
California Jurisprudence is an extensive encyclopedia on California law, and its current edition is usually
cited as Cal.Jur.3d. Volumes 62 and 63 comprehensively treat the topic of California water law. As an
encyclopedia, the emphasis is on a broad discussion of the substantive law, with ample citation to cases,
statutes and regulations. At the beginning of each section, there are research references to West Digest
system key numbers to allow for quick access to relevant caselaw on the topic, as well as citations to ALR
annotations, forms, other encyclopedias, etc.
This publication is available in print and online through both Westlaw and LexisAdvance.
The main topics within this title are:
I. Overview
II. Public Policy
III. Nature of Water Rights
IV. Public Ownership & Control
V. Pueblo Right
VI. Riparian Right
VII. Prescriptive Water Rights
VIII. Appropriative Water Rights
IX. Underground Waters
X. Public Use
XI. Relative Superiority of Different Classes of Water Rights
XII. Adjudication of Water Rights
XIII. Loss and Condemnation of Water Rights
XIV. Conveyances and Contracts Involving Water Rights
XV. Diversion; Conveyance; Storage
XVI. Surface Waters; Floodwaters; Flood Control
XVII. Navigable Waters and Underlying Lands
XVIII. Private and Mutual Water Companies
XIX. Irrigation Districts and Similar Organizations
XX. Waterworks and Water Companies
There is an extensive subject index in the back of volume 63. The “Table of Laws & Rules” volumes at
the end of the set provide a list of the Water Code sections discussed in the topic with precise page
references.
27
Volume 50 of California Jurisprudence is entitled “Pollution and Conservation Laws.” Section C of this
volume covers “Water Pollution.” This section details the workings of the responsible state agencies in
protecting water quality and the requirements of the federal Clean Water Act. As with the volumes on
“Water,” there is an index in the back of the volume.
Witkin’s Summary of California Law (Thomson Reuters)
B. E. Witkin’s Summary of California Law, 10th edition, provides coverage of California water law, but it
is not as extensive as California Jurisprudence. Witkin’s does not cover the topic with a separate title,
but instead treats it within the broader topic of Real Property. Chapter XVII is entitled “Real Property,”
and section XIV of this chapter is entitled “Waters” (§§ 915 – 972). These sections cover numerous water
issues, although important water law topics are also treated in other sections of the Real Property title.
The main divisions of Section XIV are as follows:
A.
B.
C.
D.
E.
F.
Systems and Classifications of Water Rights
Nature of Rights to Water
Administration of Water Rights
Rights in Surface Waters
Underground Waters
Injuries to Property Caused by Waters
The main index volumes at the end of the Witkin’s set provide subject headings for the topic, including
“Water,” “Water Pollution,” and “Water Rights.” Witkin’s Summary of California law is available in print
and online through both Westlaw and LexisAdvance.
California Environmental Law and Land Use Practice (Matthew Bender)
Manaster, Kenneth A. and Daniel P. Selmi. California Environmental Law and Land Use Practice. New
York: Matthew Bender, 1989-.
Volume 2 of this 6-volume work contains four chapters on water law issues: Chapter 30 “Agencies
Regulating Water Quality,” Chapter 31 “Water Quality Control Planning, Regulation, and Enforcement,”
Chapter 32 “Regional Water Board Groundwater Investigations and Cleanups,” and Chapter 33 “Control
of Specific Water Quality Problems.” It is a particularly good resource for explaining the functions and
responsibilities of the SWRCB. This treatise is available in print through Matthew Bender and online
through LexisAdvance.
California Water Law & Policy (Matthew Bender)
Slater, Scott S. California Water Law & Policy. New York: Matthew Bender, 2015-.
The most thorough treatise currently available specifically on California water law. This two-volume
looseleaf set covers all aspects of water law and is very practitioner-oriented. The text has generous
footnotes and has features such as practice pointers, hypotheticals and examples. This treatise began
publication in 2001. The author specializes in water law at the firm of Brownstein Hyatt Farber Schreck.
It is available in print through Matthew Bender and online through LexisAdvance.
California Water Law II (Solano Press)
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Littleworth, Arthur L., and Eric L. Garner, California Water Law II. Point Arena, CA: Solano Press,
2007.
Written by attorneys with the firm of Best Best & Krieger, the second edition of this excellent overview
of the law was published in 2007 (a new edition is in preparation). Arthur Littleworth is a recognized
expert in the field and has been described at the outstanding water lawyer of his time. The book is aimed
at a more general audience than just attorneys, but provides the necessary citations to cases, regulations
and statutes.
(2) Other Treatises & Guides
Beck, Robert E. Waters & Water Rights, 3rd ed. Charlottesville, VA: LexisNexis, 2009-.
A comprehensive 8-volume treatise on all aspects of water law. The treatise is national in scope
but includes numerous citations to California cases and statutes. The treatise was begun by
Professor Robert Emmett Clark in 1967 and has been kept up-to-date by a team of scholars.
Contains excellent treatment of the historical development of water law with lengthy citation of
supporting references. Part XI contains a 50-state survey of water laws. This treatise is available
online through LexisAdvance.
Getches, David H. Water Law in a Nutshell, 5th ed. St. Paul, MN: West Academic Publishing, 2015.
Published as part of West’s nutshell series, this book presents a good overview of the major legal
issues involved with water. There is no specific section on California law, but many principles of
law are illustrated by citations to California cases. This is a quick way to get an overview of the
variations in approach across the different states. It is not available online.
Tarlock, A. Daniel. Law of Water Rights & Resources. Thomson Reuters, 2016.
A major single-volume general treatise that focuses on the rights to water and the allocation of
water between competing interests (“This treatise covers the law of water quantity allocation in
the United States”). The cases and statutes of California are cited as necessary in the discussions
of various aspects of water ownership. It does not have significant coverage of issues such as
water quality and pollution. This treatise is currently published by Thomson Reuters and is the
main water law treatise available through Westlaw.
(3) Current Awareness
Bloomberg BNA Water Law & Policy Monitor
Published by Bloomberg BNA. This weekly publication began in February of 2013 and “provides up-todate news coverage, regulatory guidance and analysis, and key primary source materials for water law
practitioners, industrial water users, and regulators.” Each issue contains:
• News
• Hot topics
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• Special Reports
• Water Litigation tracker
This publication covers all 50 states, but has prominent coverage of California water law developments.
Available through the Bloomberg Law platform or as a standalone subscription through the BNA website.
California Water Law & Policy Reporter
A monthly current awareness publication published by the Argent Communications Group. It was first
published in 1990 by Shepard’s/McGraw-Hill. Content varies by month but typically contains the
following sections: Feature Article, California Water News, Regulatory Developments, Legislative
Developments, Lawsuits Filed or Pending, Recent Federal Decisions, and Recent California Decisions.
Currently available only in print. This is best publication of its type for staying current on California
water law developments.
Environmental Law News
This is a publication of the Environmental Law Section of the California State Bar. It is published twice a
year and features many articles about current developments related to water law issues.
Westlaw newsletters
Westlaw has two online newsletters, somewhat similar in coverage, on issues of water quality and the
activities of the Environmental Protection Agency. Both are national in scope but contain coverage of
California court decisions and regulatory actions affecting the water resources of the state.
“Water Regulation Alert” - Water Regulation Alert is a weekly online newsletter focusing
primarily on issues of water quality as regulated through the EPA. Articles relating to California
can quickly be found by performing a keyword search using California as the keyword.
Publication began in September of 2011.
“Water Policy Report” - Water Policy Report is a bi-weekly report on federal water quality
programs and policies. Articles relating to California can quickly be found by performing a
keyword search using California as the keyword. Publication began in October of 2011.
(4) Journal articles
Articles from law journals and law reviews can be a very valuable research tool, particularly for analysis
of recent caselaw and for policy considerations. While most journals still publish in print, online
databases offer the best way of searching and accessing articles. With the exception of the BEPress
website, all of the following resources are subscription-based.
BEPress – the “Water Law Commons” is a digital repository of scholarly articles made freely available
through the Berkeley Electronic Press service. A large number of law schools in the U.S. are part of this
network. Over 2500 articles are currently posted. In addition to articles, there are a large number of
California agency documents that are part of the repository. The material specifically about California
water law issues are not separated out, but the main search box permits for keyword searching. Available
at: http://network.bepress.com/law/water-law/
30
Heinonline – Hein’s online law journal library contains the full-text of articles from 2,200 law and lawrelated periodicals. Articles are available in .pdf format and coverage typically does back to the first issue
published by a particular journal.
For searching for articles on California water law topics, use the “advanced search” option and (1) choose
“state” as a field and type in “California” in the first search box; and (2) choose “water law” from the list
of available subjects. This search will produce a list of journal articles focused on water law issues in
California. Hein offers some valuable sorting options in the set of results, including “number of times
cited by articles,” “number of times cited by cases,” and “most cited author.”
Westlaw & LexisAdvance
Both Westlaw and LexisAdvance have the full-text of hundreds of law journals and law reviews.
Coverage will vary by individual publication. Searching on these services give the advantage of their
sophisticated keyword search capabilities.
LegalTrac
This resource provides indexing of more than 1,300 English-language law reviews, legal newspapers &
bar journals. Some full-text articles are included. Coverage begins in 1980. An index such as LegalTrac
is valuable because it may locate articles not available through full-text databases such as Westlaw and
LexisAdvance.
The “Subject Guide Search” is probably the best method to search this index, unless you are searching for
an article containing a distinct term. LegalTrac has approximately 20 subject headings available starting
with the word “water.” Some of the most valuable headings are “water,” “water resources,” “water
quality,” and “water rights.” Other good subject headings are “California. Water Code,” and “California.
Water Resources Control Board.”
Legal Source (formerly the Index to Legal Periodicals)
This index provides coverage of important English language legal information publications, with
international coverage of scholarly articles, symposia, court decisions, legislation, books, book reviews.
Full text is available for over 400 periodicals, many of them as far back as 1994.
As with LegalTrac, by using “advanced search” you can choose a subject heading search. There are
several subject headings starting with the word “water,” such as “water pollution” and “water quality”
although not as many as are available through LegalTrac. Typing in the words “California water” also
reveals a number of subject headings starting with these words.
Leading law reviews and journals
Searching on LegalTrac and Legal Source reveals that the following journals are the ones that most
frequently publish articles on California water law:
• The Environmental Forum (Environmental Law Institute)
• Environmental Law (Lewis & Clark Northwestern School of Law)
31
• Golden Gate University Environmental Law Journal
• McGeorge Law Review
• Natural Resources & Environment (ABA)
• Natural Resources Journal (University of New Mexico School of Law)
• UCLA Journal of Environmental Law & Policy
(5) Locating books
While using library catalogs appears to be on the decline for newer generations of researchers, this
resource should not be ignored when trying to discover the full-range of material available on a particular
topic. This is especially true for more historical types of research, where older material may not be online
and library catalogs may be the only way to discover items published decades ago.
Library catalogs today offer a variety of ways to search, including by keyword, title, author and subject
heading. When using a subject heading search, the Library of Congress subject heading system offers a
comparatively small number of subject headings relevant to water law research.
Most books on the subject of water law will be assigned a subject heading of either “Water” or “Water
Rights,” with the appropriate geographical limitation. Thus, books addressing water law would be
assigned subject headings such as the following:
Water -- Law and legislation -- United States
Water Rights – United States
Water -- Law and legislation -- California
Water Rights – California
Other subject headings that are sometimes used are:
Riparian Rights – United States
Water Conservation – Law and legislation
Water Resources Development – Law and legislation
Some historical topics have subject headings reflective of the unique way in which water rights developed
in California. Thus:
Gold mines and mining -- California -- Water-supply -- History -- 19th century.
F. Sources for Historical Research
32
California water law is very much a product of the state’s historical experience and so there may be
greater need than usual to understand the historic development of this area of law.23
Association of California Water Agencies. ACWA’s 75-Year History. Sacramento, CA: Association of
Water Agencies, 1985.
Published in 1985, this book provides a good history of the development of California’s water
and irrigation districts and has detailed profiles of the hundreds of districts operating in the state
as of the time of publication.
Giefer, Gerald J., and David K. Todd, Water Publications of State Agencies. Port Washington, NY: Water
Information Center, 1972 and Giefer, Gerald J., and David K. Todd, Water Publications of State Agencies,
First Supplement, 1971-74. Port Washington, NY: Water Information Center, 1976.
A bibliographic listing of agency publications related to “water resources” for the 50 states. Each
state section is arranged by Department or agency, with the California section of the main work
covering 25 pages. Entries for some agencies begin in the early 20 th century, although the bulk of
the listed publications are from the 1950’s, 1960’s and 1970’s. The editors make no claim for
completeness, but primarily relied on each agency to supply a list of their publications.
Governor’s Commission to Review California’s Water Rights Law, Final Report (1978).
Following the drought years of 1976-77, Governor Brown signed an Executive Order creating the
Governor’s Commission to Review California Water Rights Law. The Commission, composed of
experts from a variety of fields, asked its staff to prepare reports in six areas: appropriative water
rights, groundwater rights, water conservation, riparian water rights, water rights transfers and
instream water uses. These six staff reports were then used in creating the Commission’s final
report. While only a very limited number of recommendations from the report were ultimately
adopted by the legislature, the report presents an excellent discussion of the law of California
water rights of that period.
The six background staff reports are:
Appropriative Water Rights in California, by Marybelle D. Archibald;
Groundwater Rights in California, by Anne J. Schneider;
Legal Aspects of Water Conservation in California, by Clifford T. Lee;
Riparian Water Rights in California, by David B. Anderson;
The Transfer of Water Rights in California, by Clifford T. Lee;
Legal Aspects of Instream Water Uses in California, by Anne J. Schneider
Hundley, Norris, Jr. The Great Thirst. Berkeley: Univ. of California Press (rev. ed. 2001).
23 “Unlike most other bodies of law that regulate the economy and welfare of California and the nation,
California water law is the product of past historical experience – and indeed is a vital part of that
experience – and can only be properly understood when viewed in that historical context.” Walston,
Roderick E., California Water Law: Historical Origins to the Present, 29 Whittier L. Rev. 765, 766
(2008).
33
The seminal history of the use and development of California’s water resources, beginning with
the aboriginal population and continuing through the great dam projects. Hundley examines the
development of water within the political, economic, legal and cultural environments of the time.
The author was a history professor at UCLA.
Hutchins, Wells A. California Law of Water Rights. Sacramento: U.S. Dept. of Agriculture, 1956.
A very well-regarded treatise of its time, still valuable for historic research. Hutchins was
employed by the U.S. Department of Agriculture and became a recognized expert in water law
issues of western states.
Jacobstein, J. Myron and Roy M. Mersky, Water Law Bibliography 1847-1965. Source Book on U.S.
Water and Irrigation Studies: Legal, Economic and Political. Silver Spring, Md.: Jefferson Law Book
Co., 1966An excellent resource for a search of historical literature. This bibliography and its supplements
cover literature published from 1847 to 1985. It includes references to law journal articles and
government documents such as agency and commission reports. The volumes contain state
specific indexing, so using the “California” subject heading allows for retrieval of all literature
identified that is specific to California. The first volume has a subject heading entry for “Central
Valley” which is very helpful for identifying material about that project. Not available online.
Kanazawa, Mark. Efficiency in Western Water Law: the Development of the California Doctrine, 18501911. 27 J. OF LEGAL STUDIES 159 (Jan. 1998).
This article traces the development of California’s unique “dual system” of riparian and
appropriative rights. The author argues that California courts promoted the more “efficient”
appropriative rights doctrine in a way that stimulated economic growth.
Kanazawa, Mark. Golden Rules: the Origins of California Water Law in the Gold Rush. Chicago:
University of Chicago Press, 2015.
This book focuses on the gold rush period in California history which was the formative event in
establishing the framework for California’s water law.
Miller, Gordon R., Shaping California Water Law, 1781 to 1928, 55 Southern Cal. Q. 9 (1973).
An excellent review of the development of California water law through both court decisions and
legislative actions. Focuses on doctrines such as riparian rights, appropriative rights, pueblo
rights and the political infighting that shaped California law up to the Constitutional Amendment
of 1928.
Rogers, Harold E. & Alan H. Nichols, Water for California: Planning Law & Practice. San Francisco:
Bancroft-Whitney, 1967.
This two-volume work focuses on water development in California. The intended audience was
“. . . underwriters and financial consultants, attorneys, engineers, public officials and others
having an interest in the solution of water development problems.” This work gives an excellent
34
background on the Central Valley Project, the California Water Plan, the financing of these
projects and the many water organizations in the state that play a role in the delivery of water.
This was a one-time publication, without supplements.
Walston, Roderick E., California Water Law: Historical Origins to the Present, 29 Whittier L. Rev. 765
(2008).
A thorough summary of the development of California water rights law with a particularly good
discussion of the evolution of state and federal environmental laws that impact the use of water.
Water Resources Collections and Archives (WRCA): http://library.ucr.edu/wrca/
The WRCA was established in 1958 as part of the University of California's Water Resources
Center. It is now located on the University of California Riverside campus. As described on its
website: “ . . . the collection consists of more than 200,000 technical reports, 45,000 historic
photographs, over 5,000 geographic maps, 1,500 specialized newsletters, more than 200
manuscript collections, and continues to grow.” It is an excellent resource for historical research.
For example, it holds the papers of Wells A. Hutchins, a prominent figure in the U.S. Dept. of
Agriculture and expert on water law issues.
Wiel, Samuel C., Water Rights in the Western States. San Francisco: Bancroft-Whitney, 1911.
This two-volume treatise has thorough discussions of the early development of water law doctrine
in the western states, helpfully putting California practices in a broader context. The author was a
San Francisco practitioner and scholar and the treatise extensively covers California law.
G. Major state and federal legislation
The following state and federal legislative acts represent milestones in the development of the law
controlling California waters. Legislative history information is provided to assist in efforts to research
the legislative history of any act.
California Practice Act – 1851 (state)
Session law: Stats. 1851, c. 5, § 621, p. 149.
Effective date: April 29, 1851.
Section 621 of the Act recognized miner’s “customs” and “usages” as evidence in civil actions
involving mining claims. In practical terms, this sanctioned the “first in time, first in right”
approach of prior appropriation when a dispute arose over water, as this was the custom in gold
mining country. This section thus gave the doctrine of prior appropriation a legal footing in
California, only a year after the riparian right had been incorporated into California law when the
legislature declared its adoption of the common law of England (Stats. 1850, c. 95)..
35
The Mining Act – 1866 (federal)
Codified at: 43 U.S.C. § 661.
Session law: 14 Stat. 253, § 9.
Senate or House bill: H.R. 365 (39th Congress).
Effective date: July 26, 1866.
Section nine of this act recognized appropriative rights to the use of water on public lands for
mining, agricultural, and other purposes provided those rights were recognized by the state in
which the use vested and accrued. Thus, if an appropriator on public lands had an appropriative
right to that water under California law, then the federal government would recognize that right.
This Act reflected Congress’ recognition that it was not exerting its authority on how water was
distributed on public lands and that the doctrine of prior appropriation was the reality of how
water rights were developing in this region. By supplemental act of 1870, protection was
extended to all water rights that were then vested in streams in the public domain (16 Stat. 217).
Civil Code - 1872 (state)
Session law: Stats. 1872, c. 424, p. 622.
Effective date: May 18, 1872.
The Civil Code was one of the original four statutory codes in California. Title VIII was entitled
“Water Rights” and its provisions were contained in §§ 1410 – 1422. These provisions expressly
recognized the right to acquire water through appropriation and procedures for acquiring such
right by the posting of notice were set forth. The code was drafted by Commissioners appointed
by the Governor, and the legislature approved the code on March 27, 1872, with an effective date
of May 18, 1872. These comparatively brief provisions represented all the statutory law on the
subject of appropriation for the next 40 years.
The Desert Land Act - 1877 (federal)
Codified at: 43 U.S.C. §§ 321-339.
Session law: 19 Stat. 377.
Senate or House bill: H.R. 4261 (44th Congress)
Effective date: March 3, 1877.
This act provided for sale of desert lands to persons who undertook to appropriate water and
irrigate lands for the purpose of “reclaiming” them. The act gave to anyone entering upon these
public lands the right to appropriate enough water to reclaim 640 acres and the right to buy the
land at 25 cents an acre. The Act applied to California and 10 other states and territories. This
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Act encouraged settlement upon public lands and the development of widespread irrigation in
desert regions, without an investment by the government in building infrastructure.
Wright Irrigation District Act - 1887 (state)
Codified at: current law on irrigation districts is contained in Division 11 of the Water Code.
Session law: Stats.1887, c. 34, p.29.
Assembly or Senate bill: AB 12 (regular session).
Effective date: March 7, 1887.
This statute permitted citizens to form local irrigation districts as special units of local
government. This act encouraged the irrigation of non-riparian land by empowering the district
to issue bonds and collect taxes in order to finance the purchase of needed water rights. The
impetus for this legislation was the belief that access to water was being monopolized by private
interests and that a mechanism was needed to give the broader public a means to acquire water
for irrigation. This Act was regarded as only partially successful in its early operation (largely
due to high costs of litigation and condemnation payments), and was significantly amended in
1897. This act was nonetheless an important step in creating the legal framework for the
expansion of agriculture through irrigation.
Reclamation Act - 1902 (federal)
Codified at: 43 U.S.C. §§ 391, et. seq.
Session law: 32 Stat. 388 (57 Pub.L. 161).
Senate or House bill: S. 3057 (57th Congress).
Effective date: June 17, 1902.
This Act (also known variously as the “Newlands Reclamation Act,” the “National Irrigation Act
of 1902,” and the “Lowlands Reclamation Act”) marked the federal government’s commitment to
a much more active role in developing agriculture in the arid west through irrigation. This act
was the foundation of the federal government’s eventual actions of damming all the major rivers
of the west.
The Act authorized the Secretary of the Interior to designate irrigation and storage sites and to
establish a reclamation fund from the sale of public lands to finance the projects. The Act
originally funded projects in 13 states, but this was later expanded to 20. The United States
Reclamation Service was created, which eventually was renamed the U.S. Bureau of
Reclamation.
Water Commission Act - 1913 (state)
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Codified at: Water Code, § 106 and other places within the Water Code, following the creation of
the Water Code in 1943.
Session law: Stats.1913, c. 586, p. 1012.
Assembly or Senate bill: AB 642 (regular session).
Effective date: August 10, 1913 (later approved by referendum vote in the general election of
November 3, 1914, with an effective date of December 19, 1914).
The Water Commission Act of 1913 established a Water Commission to oversee permits for the
appropriation of water. The main purpose of the Act was to provide an orderly method for
appropriation of the unappropriated waters of the state. The Act set up a statutory procedure for
appropriation that was exclusive and replaced previous provisions of the Civil Code. All
preexisting appropriations, however, were “grandfathered" in and are known as pre-1914 rights.
The State Water Resources Control Board is the state agency today that is in charge of permits for
the appropriation of water.
Federal Water Power Act – 1920 (federal)
Codified at: 16 U.S.C. §§ 791a, et. seq.
Session law: 41 Stat. 1063, c. 285.
Senate or House bill: H.R. 3184 (66th Congress).
Effective date: June 10, 1920.
The Federal Water Power Act (since renamed the Federal Power Act) was enacted to develop
water as a source for electric energy and to more effectively coordinate hydroelectric power plant
development. The Act created the Federal Power Commission (since renamed the Federal Energy
Regulatory Commission or FERC) as the licensing agency for hydroelectric projects. FERC may
issue licenses for the construction and operation of water power projects in the navigable waters
of the United States.
Boulder Canyon Project Act – 1928 (federal)
Codified at: 43 U.S.C. § 617, et. seq.
Session law: 45 Stat. 1057 (Pub.L. 70-642).
Senate or House bill: H.R. 5773 (70th Congress).
Effective date: December 21, 1928.
Agency explanation: https://www.usbr.gov/lc/region/g1000/lawofrvr.html
This Act authorized the building of the Hoover Dam (then called Boulder Dam). The Act took
effect only upon the ratification of the Colorado River compact, which was an agreement among
the seven states of the Colorado River basin on how to allocate the water. The Act also
authorized the construction of the All-American Canal, which supplies water to the Imperial
Valley of California. The dam and the compact agreement also made possible the construction of
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the Colorado River Aqueduct, which the Metropolitan Water District built to supply water to the
population of Southern California.
Dickey Water Pollution Act – 1949 (state)
Codified at: Water Code, §§ 13000, et seq. (later replaced by Porter-Cologne Act).
Session law: Stats.1949, c. 1549, p. 2782, §1.
Assembly or Senate bill: AB 2034 (regular session).
Effective date: October 1, 1949.
Agency explanation:
http://www.waterboards.ca.gov/about_us/water_boards_structure/history_water_pollution.shtml
The state’s first major effort at addressing water pollution. The act created the State Water
Pollution Control Board (whose responsibilities now reside in the State Water Resources Control
Board) and the nine regional water pollution control boards. This marked a significant
advancement in the state’s efforts to regulate water quality. The 1969 Porter-Cologne Water
Quality Control Act effectively replaced the Dickey Act.
Wild and Scenic Rivers Act – 1968 (federal)
Codified at: 16 U.S.C. §§ 1271, et. seq.
Session law: 82 Stat. 906 (Pub.L. 90-542).
Senate or House bill: S. 119 (90th Congress).
Effective date: October 2, 1968.
Agency explanation: https://www.rivers.gov/index.php
This Act aims to protect designated stretches of rivers from development. The Act permits
Congress to identity selected rivers or river segments as having scenic and recreational value.
With such designation, the river is protected from the construction of dams or other alterations
that would disrupt the free-flowing and natural character of the river. The Act also prohibits oil,
gas and mineral development on riverfront public land and created a federal reserved right to
ensure adequate river flow. California has approximately 1% of its river system protected by this
wild and scenic designation.
National Environmental Policy Act (NEPA) – 1969 (federal)
Codified at: 42 U.S.C. §§ 4321, et. seq.
Session law: 83 Stat. 852 (Pub.L. 91–190).
Senate or House bill: S. 1075 (91st Congress).
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Effective date: January 1, 1970.
Agency explanation: https://www.epa.gov/NEPA
NEPA requires that federal agencies take into account environmental factors in their projects and
activities. The Act’s most significant provisions are the requirements that all executive federal
agencies prepare environmental assessments (EA’s) and environmental impact statements (EIS’s).
These reports state the potential environmental effects of proposed federal agency actions. The
equivalent California legislation is CEQA, which imposes similar assessments and reports from
California state agencies.
Porter-Cologne Water Quality Control Act - 1969 (state)
Codified at: Water Code, §§ 13000, et seq.
Session law: Stats.1969, c.482, p.1045.
Assembly or Senate bill: AB 413 (regular session).
Effective date: January 1, 1970.
Agency explanation:
http://www.waterboards.ca.gov/water_issues/programs/nps/encyclopedia/0a_laws_policy.shtml
The official title is “California Water Quality Improvement Act of 1969.” The Porter-Cologne
Act (also known as section 7 of the Water Code) is the law that governs water quality regulation
in California. It was established as a program to protect the water quality as well as the beneficial
uses of water. This act applies to surface water, groundwater, wetlands and both point and
nonpoint sources of pollution. The act authorized nine regional water boards. The act requires the
adoption of water quality control plans that contain the guiding policies of water pollution
management in California. This act served as a basis of the Federal Clean Water Act which
passed soon thereafter.
California Endangered Species Act (CESA) – 1970 (state)
Codified at: Fish & Game Code, §§ 2050 et. seq.
Session law: Stats.1970, c. 1510 (later amended and re-enacted by Stats.1984, c. 1162, § 5, and
Stats.1984, c. 1240, § 1).
Assembly or Senate bill: AB 325 (regular session).
Effective date: November 3, 1970.
Agency explanation: https://www.wildlife.ca.gov/Conservation/CESA
California’s Endangered Species Act predated the federal Endangered Species Act and was one of
the first state statutes designed to protect endangered animal species. In 1984, a major
amendment to the law was passed, which re-enacted the statute, along with repealing and
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renumbering certain sections. The legal protections for endangered fish species is a major factor
in water management and allocation decisions.
California Environmental Quality Act (CEQA) – 1970 (state)
Codified at: Public Resources Code, §§ 21000 et. seq.
Session law: Stats.1970, c. 1433, p. 2780, § 1.
Assembly or Senate bill: AB 2045 (regular session).
Effective date: November 3, 1970.
Agency explanation: http://resources.ca.gov/ceqa/more/faq.html
CEQA requires state and local agencies to identify the significant environmental impacts of their
actions and to avoid or mitigate those impacts, if feasible. Following the passage of the federal
NEPA legislation, the California enacted CEQA as a way of supplementing the NEPA
requirements. At a minimum, an initial review of a project and its environmental effects must be
conducted. Depending on the potential effects, a further review may be conducted in the form of
an environmental impact report (EIR).
Clean Water Act Amendments – 1972 (federal)
Codified at: 33 U.S.C. §1251 et seq.
Session law: 86 Stat. 816 (Pub.L. 92-500).
Senate or House bill: S. 2770 (92nd Congress).
Effective date: October 18, 1972.
Agency explanation: https://www.epa.gov/laws-regulations/summary-clean-water-act.
The Federal Water Pollution Control Act Amendments of 1972 amended the earlier Federal Water
Pollution Control Act of 1948 (enacted as Public Law 80-845). This 1972 legislation was a
complete overhaul of the 1948 act and was subsequently known as the “Clean Water Act.”
The 1948 Federal Water Pollution Control Act was the first major federal law to address water
pollution. The Act initially was not strong and delegated most of the pertinent authority to limit
pollution to the states. The Act was strengthened gradually by subsequent amendments between
1956 and 1970. Finally, growing public awareness and concern for controlling water pollution
led to the major amendments in 1972. The law has subsequently been amended several more
times by Congress.
The Clean Water Act (CWA) establishes the basic structure for regulating discharges of pollutants
into the waters of the United States (WOTUS) and regulating quality standards for surface waters.
Under the CWA, the EPA has implemented pollution control programs such as setting wastewater
standards for industry. Under the CWA, it is unlawful to discharge any pollutant from a point
source, unless a permit is first obtained. The National Pollutant Discharge Elimination System
(NPDES) permit program is the system for handling such permits.
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California Wild and Scenic Rivers Act – 1972 (state)
Codified at: Public Resources Code, §§ 5093.50 - .65.
Session law: Stats. 1972, C. 1259, p. 2510, § 1.
Assembly or Senate bill: SB 107 (regular session).
Effective date: March 7, 1973.
Agency explanation: https://www.rivers.gov/california.php
This Act has a similar intent as the federal Wild and Scenic Rivers Act passed in 1968. Under this
act, certain designated rivers or river segments will be free from dams, reservoirs, impoundment
structures and certain irrigation works. The act declares that rivers with scenic, recreational,
fishery and wildlife values are considered as having been put to the highest and most beneficial
uses within the meaning of the State Constitution.
Endangered Species Act - 1973 (federal)
Codified at: 16 U.S.C. § 1531 et seq.
Session law: 87 Stat. 884 (Pub.L. 93-205).
Senate or House bill: S. 1983 (93rd Congress).
Effective date: December 28, 1973.
Agency explanation: https://www.fws.gov/endangered/laws-policies
The ESA repealed the Endangered Species Conservation Act of 1969 and implemented two
international treaties (the Convention on International Trade in Endangered Species of Wild
Fauna and Flora and the Convention on Nature Protection and Wildlife Preservation in the
Western Hemisphere). The Act is administered by the U.S. Fish & Wildlife Service and the U.S.
National Oceanic and Atmospheric Administration Fisheries Service.
The Endangered Species Act protects endangered species through the protection of their habitat.
When such species live in the water, the Act can limit any activity that affects those waters. Its
protections can be used to block water development projects (such as dams) and pumping of
water by irrigation districts. Thus, it serves as a potential method of blocking specific water
projects and usages that might be allowable under state law.
Safe Water Drinking Act – 1974 (federal)
Codified at: 42 U.S.C. § 300f, et. seq.
Session law: 88 Stat. 1660 (Pub.L. 93-523).
Senate or House bill: S. 433 (93rd Congress).
Effective date: December 16, 1974.
Agency explanation: https://www.epa.gov/sdwa
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The Safe Drinking Water Act (SDWA) is the principal federal law intended to ensure safe
drinking water for the public. It applies to every public water system in the United States.
Pursuant to the act, the Environmental Protection Agency (EPA) is required to set standards for
drinking water quality and oversee all states, localities, and water suppliers who implement these
standards. The SWRCB has enforcement authority for the federal and state regulations within
California.
Central Valley Project Improvement Act - 1992 (federal)
Codified at: Not codified in the U.S. Code.
Session law: 106 Stat. 4706 (Pub.L. 102-575, title 34).
Senate or House bill: HR 429.
Effective date: October 30, 1992.
Agency explanation: https://www.usbr.gov/mp/cvpia/
This Act (the “CVPIA”) mandated significant changes in the management of the Central Valley
Project, particularly adding protections for fish and wildlife. The “purposes” of the Act specified
several areas of environmental concern, with the practical effect that it was now possible to
reduce water allocations for agricultural and municipal users in order to protect environmental
concerns. For example, the Act requires that 800,000 acre feet of water be dedicated annually for
fish and wildlife. This Act marked a major change in emphasis for the Central Valley Project,
which had previously been managed by the Bureau of Reclamation on the assumption that the
law did not allow for environmental considerations.
Delta Reform Act – 2009 (state)
Codified at: Water Code, §§ 85,000 – 85,350.
Session law: Stats. 2009-2010, c. 5, p.5415 (7th Extraordinary session).
Assembly or Senate bill: SB 1, SB 2, SB 6, SB 7 and SB 8 (7th Extraordinary session).
Effective date: Feb. 3, 2010.
Agency explanation: http://deltacouncil.ca.gov/enabling-legislation
The Delta Reform Act of 2009 was a package of 5 bills that were passed at an extraordinary
session held in the fall of 2009 and marked one of the state’s most ambitious attempts to address
California’s water needs and environmental protection. The Act’s provisions were based largely
on the findings and recommendations of the Governor’s Delta Vision Blue Ribbon Task force.
The Act aimed to further the “coequal goals” of increasing protection of the delta environment
and ensuring a reliable water supply.
SB 1 – officially entitled “The Sacramento – San Joaquin Delta Reform Act of 2009,” this bill
was the substantive centerpiece of the Reform Act, and primarily addresses governance. The
Delta Stewardship Council (DSC) was created and charged with developing a comprehensive
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Delta Plan for managing the Delta region’s water resources. A “Delta Watermaster” position was
also created as well as the Sacramento-San Joaquin Delta Conservancy.
SB 2 – officially entitled “The Safe, Clean, and Reliable Drinking Water Supply Act of 2010,” the
bill addressed the funding needs of the reform efforts. This bill authorized an $11.14 billion
general obligation bond to fund a variety projects and programs. This bill became operative only
after it was submitted to the voters for approval at the November 2, 2010 election.
SB 6 – this bill addressed groundwater issues. The bill created obligations for the state to monitor
elevation levels of groundwater basins and to collect and report this data. Much of the original
substantive content of this bill proved too controversial and was dropped.
SB 7 – this bill focused on statewide water conservation policy and goals. The bill targeted a
20% reduction in urban water use per capita by the year 2020 (but significantly excluded any
such requirements on agricultural users). The bill did require agricultural users to adopt efficient
water management practices and water management plans.
SB 8 – this bill set forth fairly modest revisions to the water diversion statements that must be
filed with the Department of Water Resources. As with SB 6, more substantive provisions were
dropped from the final bill.
Sustainable Groundwater Management Act (SGMA) – 2015 (state)
Codified at: Water Code §§ 10720, et. seq., as well as other sections of the Water Code and
Government Code.
Session law: Stats. 2014, c. 346, 347 and 348.
Assembly or Senate bill: SB 1168, AB 1739 and SB 1319.
Effective date: January 1, 2015.
Agency explanation: http://www.water.ca.gov/groundwater/sgm/
The SGMA was created by the passage of three bills in 2014: AB 1739, SB 1319 and SB 1168.
This Act is a major effort to bring groundwater use under some degree of regulation.
The Act aims at long-term groundwater management across the state. The DWR is charged with
identifying “high” and “medium” priority groundwater basins with the goal of achieving
groundwater use sustainability by the year 2040. Local and regional authorities will form
Groundwater Sustainability Agencies (GSAs) that will oversee the preparation and
implementation of a local Groundwater Sustainability Plan (GSP).
H. Recommended Websites:
There are many websites that provide information on California water law issues. In addition to the
websites of the important state agencies such as the SWRCB, the following websites are valuable for
staying informed on current developments.
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Legal Planet: http://legal-planet.org/topics/water/
The “Water” section of this website has extensive news and analysis about California and federal
water issues. The Legal Planet website is a joint project of the UC Berkeley and UCLA schools
of law, and generally addresses environmental law issues.
Maven’s Notebook: http://mavensnotebook.com/
Presents current news and information on a wide variety of water topics. The website was
created in 2007 by Chris Austin, a citizen who closely follows California water issues.
Particularly useful is her “Delta and Statewide Planning Processes” page which untangles the
numerous government plans and initiatives for managing the state’s various water systems.
Public Policy Institute of California: http://www.ppic.org/water/
The PPIC is a respected non-partisan organization that studies a variety of state policy issues.
The Water Policy Center of the PPIC is an excellent source for news on current events and it
frequently publishes policy documents on California water issues.
Water Deeply: https://www.newsdeeply.com/water
Water Deeply is a news and analysis resource that focuses on efforts to conserve and protect
California’s water supply. It is a good source of information about recent California agency
actions and new legislation.
I. Conferences
There are a number of annual educational conferences offered in California that focus specifically on
water law issues. These conferences are eligible for MCLE (Minimum Continuing Legal Education)
credit. The focus of these conferences is to provide updates on new developments in the law and
discussions on important policy issues.
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Argent Communications Group – The publisher of California Water Law & Policy holds an
annual conference. Topics vary by year.
Association of California Water Agencies (ACWA) – The ACWA holds an annual “Legislative
Symposium” that focuses on legislative activity and policy issues.
CLE International – this private company produces a number of water-related conferences,
including an annual “California Water Law” conference.
California Water Law Symposium – this annual event is created by a consortium of law schools
and the location varies each year. Schools involved are the McGeorge School of Law, UC
Berkeley School of Law, UC Hastings College of Law, Golden Gate University School of Law,
University of San Francisco School of Law, and UC Davis School of Law.
J. Glossary
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The following terms are commonly encountered when reading materials on California water law. This list
was developed by reading caselaw, news and articles:
Acre foot (af) – a measurement that equals enough water to cover an acre of land in one foot of water.
This is approximately 325,851 gallons of water.
Acre foot annually (afa) – a common measurement of the amount of water present in a water system
each year.
Allocation – the concept arises where there is more than one claimant to a limited resource. Where water
supply is limited, allocation between competing users and uses gives rise to a great amount of litigation.
In the early days of the state, allocation was primarily a matter of dividing water between competing
private claimants. In recent decades, the rise of environmental mandates has resulted in greater allocation
of water to public interests.
Aquifer – a geologic formation that is sufficiently permeable to hold or conduct groundwater.
Area of origin – the Water Code contains provisions designed to protect local water supplies from being
depleted by large water projects that might otherwise transfer out excessive amounts of water. These
statutes arose at the time that the CVP and SWP were being planned and developed.
Army Corps of Engineers – A federal agency within the Department of Defense responsible for the
construction and upkeep of a large number of water projects nationwide, including dams, locks and
canals. The purpose of Corps of Engineer projects is not irrigation, but hydroelectric power, flood control
and recreation.
AWMP – Agricultural Water Management Plans. “Agricultural Water Suppliers,” which provide water
for irrigation purposes, are required to submit AWMP’s to the Department of Water Resources per section
10820 of the Water Code.
Basin - the area drained by a river or lake. “Basin plans” are developed by entities such as the RWQCB’s
to set water-quality goals for the water within the described basin. Also referred to as “water quality
control plans.”
Bay-Delta Plan – the Water Quality Control Plan issued by the SWRCB for the San Francisco Bay/
Sacramento and San Joaquin Delta Estuary, which is the source of much of the state’s water supply . This
plan establishes water quality control measures needed to provide reasonable protection of beneficial uses
of water in the Bay-Delta Watershed. The first plan was issued in 1978. This plan is distinct from the
“Delta Plan,” which was created by the Delta Stewardship Council and authorized by the Delta Reform
Act of 2009.
Beneficial use. In general terms, a use of water that is seen as beneficial to an individual or society. All
water usage in California must be for a “beneficial use” per Article X, § 2 of the Constitution (and also §
100 of the Water Code). Traditionally, courts tended to view beneficial uses as economic ones.
BOR (U.S. Bureau of Reclamation) – the federal agency that oversees water resource management and
hydroelectric power in the western United States. The BOR is the largest water wholesaler in the U.S.
and operates the Central Valley Project.
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California Water Action Plan – A policy document issued by the Governor’s office that states the goals
and proposed means to achieve greater sustainability of California’s water resources. First issued in
January of 2014. The previous administration had issued a similar policy document, called the “20x2020
California Water Conservation Plan.”
California Waterfix – A proposed plan to build tunnels beneath the Sacramento-San Joaquin Delta to
move water from the Sacramento River to the facilities of the CVP and SWP. The plan is backed by
Governor Jerry Brown and the California Department of Water Resources. It was originally named the
Bay Delta Conservation Plan.
CALFED – the CALFED Bay-Delta Program was created in 1994 as a department within the California
Resources Agency. It was an attempt (ultimately unsuccessful) to coordinate the activities and interests of
both the state and federal government in the management of the Sacramento-San Joaquin River Delta.
CEQA (California Environmental Quality Act) – a California law passed in 1970 that requires state
and local entities to conduct an analysis of the environmental impact of proposed actions and projects and
to adopt measures to mitigate those impacts. It is codified in the Public Resources Code, § 21000 et seq.
CFS (cubic feet per second) – a common measurement of water flow.
Conjunctive use – refers to the operation of a groundwater basin in combination with a surface water
storage and conveyance system. A common practice is the storage of surface water underground for later
use.
Correlative rights - The principle that adjoining landowners must limit their use of a common water
source to a reasonable amount and reasonable share. The doctrine was developed in the context of
adjoining landowners pumping groundwater beneath their land.
Curtailment – a reduction in the amount of water diverted. In times of drought, the SWRCB may issue
curtailment notices directing water rights holders to reduce the amount of water they are diverting.
CVP (Central Valley Project) – A major water transfer system operated by the U.S. Bureau of
Reclamation. The CVP is a system of canals, dams and reservoirs that delivers water from the
Sacramento-San Joaquin River delta to areas further south, primarily the San Joaquin valley. The first
components of the CVP became operational in the late 1930’s. Approximately 80% of the water handled
by the CVP is used for agriculture.
CWC (California Water Commission) – a nine member commission that acts as advisor to the
Department of Water Resources. It helps formulate policy and approves regulations of the DWR.
Developed water -water that is controlled or managed for human or environmental uses. This includes
water kept in reservoirs, diverted into canals, etc.
Diversion - A deviation or alteration from the natural course; especially, the unauthorized alteration of a
watercourse to the detriment of owners of water rights downstream. Contrast this to the term “point of
diversion,” which refers to the situation where an owner of an appropriative water right desires to change
its lawful “point of diversion,” and therefore a petition must be made to the SWRCB for permission.
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Duty of water – refers to the quantity of water necessary to irrigate a tract of land.
ESA (Endangered Species Act) – federal law originally passed in 1973 for the purpose of identifying
and saving species from extinction. The law is administered by two federal agencies, the United States
Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA).
The protection of fish under the ESA is a major factor in the law and policy of California water
management.
Effluent – Wastes or pollutants that are discharged into waters by sources such as a treatment plant, storm
sewer, or industrial facility.
Environmental Impact Report (EIR) - A document required by the California Environmental Quality
Act (CEQA) that assesses the environmental effects of an agency project, as defined by the statute.
Environmental Impact Statement (EIS) - Required by the National Environmental Policy Act (NEPA),
this document analyzes the effects of major federal projects on the environment.
EPA (Environmental Protection Agency) - the primary federal agency responsible for administering and
enforcing environmental protection laws. Established in 1970.
EWMP’s (Efficient Water Management Practices) - Defined by § 10902 of the Water Code as
reasonable and economically justifiable programs to improve the delivery and use of water used for
agricultural purposes. The California legislature passed this legislation to encourage efficient
management of agricultural irrigation.
Flood waters – waters that overflow from rivers or streams and onto adjacent land, under conditions that
do not normally occur.
Golden rule – refers to the provision in the California Constitution (Article X, § 2) that requires that the
state’s water be managed for maximum beneficial use.
GPCD (Gallons Per Capita Daily) – the most common measurement for indoor water use.
Ground water – Water that has seeped down beneath the surface of the land; it can be mechanically
pumped or might rise to the surface through wells or natural springs. It does not include water flowing
beneath the surface in an underground channel. Sometimes referred to as “percolating groundwater.”
Hybrid systems – California’s system of legal rights concerning water is considered a "hybrid," or "dual"
state because its law is a unique combination of riparian and prior appropriation rights.
Instream use - Instream use of water is a use that occurs within a stream channel, for example, in
hydroelectric power generation, navigation, fish farming and recreation. An “off stream” use would most
commonly be water taken out of the waterway for irrigation.
Law of the River – refers to federal laws, court decisions, regulations, guidelines and decrees that
collectively manage the waters of the Colorado River.
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MCL (Maximum Contaminant Level) – the maximum permissible level of a contaminant in water
delivered to any user of a public system. MCLs are drinking water standards primarily enforced by the
Department of Health Services (DHS).
MEP (Maximum Extent Practicable) - the Clean Water Act (CWA) provides that NPDES permits for
Municipal Separate Storm Sewer Systems must require municipalities to reduce pollutants in their storm
water discharges to the MEP.
MS4’s – Municipal separate storm sewer systems. This type of sewer system collects runoff which is
then discharged into a body of water. These systems require discharge permits from the state.
Monterey Agreement – an agreement, first entered into in 1994 between the DWR and contractors
receiving water from the State Water Project. Among other provisions, the agreement allows for some
degree of water banking and water transfers among water project users.
Natural Flow – the flow of water in a water course that occurs naturally, without being supplemented by
the release of stored water. Water rights traditionally only attach to the natural flow.
Navigable waters – a body of water, such as a river or lake that is sufficiently wide and deep to afford
passage of a vessel and be useful to commerce.
Navigational servitude – a federal right based upon the commerce clause of the U.S. Constitution. This
right acts to limit state actions that would harm navigation on navigable waterways. States are thus
precluded from granting rights that would impair navigation.
NEPA (National Environmental Policy Act) – Enacted in 1970, NEPA requires federal agencies to
assess the environmental effects of their proposed actions prior to making decisions. The range of actions
covered by NEPA includes making decisions on permit applications, adopting land management actions,
and constructing highways and other publicly-owned facilities.
Nonconsumptive uses – instream uses of water, such as for recreation, fishing, aesthetic enjoyment and
ecological preservation. The aim of many environmental laws is to increase the proportion of water used
for such public, nonconsumptive purposes.
NPDES (National Pollutant Discharge Elimination System) – a permit system, created by section 402
of the Clean Water Act, which regulates point-source pollution through the issuance of discharge permits.
States may administer their NPDES program if the state’s program is as stringent as the federal program.
California was the first state authorized to administer a NPDES program, and combined this permit
program with its pre-existing permit program established under the Porter-Cologne Act.
NWP (Nationwide permit) – permits authorized under the Clean Water Act that are issued by the Army
Corps of Engineers. These are of general application across the nation and authorize certain activities that
do no individually or cumulatively harm the aquatic environment.
Off stream use – Off stream use of water is water withdrawn or diverted from either a surface supply of
water or groundwater source for uses such as a public water supply, industry, irrigation, livestock, or
other such uses.
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Overdraft – a condition that occurs when more water is pumped out of a supply of groundwater than is
naturally replenished.
Overlying land – land that is located above, or “overlies,” a groundwater basin.
PIA (practicably irrigable acreage) – a concept related to federal reserved rights, meaning that the
quantity of water reserved for Indian reservation use is the amount of water needed for irrigating land
possible to be irrigated.
POD – point of diversion.
Point source – Under the Clean Water Act, a point source is any discernible, confined, and discrete
conveyance, including but not limited to, any pipe, ditch, channel, tunnel, conduit, and well. Usually
used in relation to surface waters.
Prescriptive rights - Prescription is a doctrine that allows a water user to overcome a prior water right
held by another. It is analogous to the real property doctrine of adverse possession. E.g., a junior water
right holder that unlawfully diverts water may become entitled to that water if the diversion satisfies a
number of requirements.
Prior appropriation, or Appropriative rights – A claim of right to water based upon actual usage or
taking of the water, not physical location (which is the riparian right). Prior appropriation rights in
California are divided between pre-1914 rights and post-1914 rights.
Public Trust doctrine - a doctrine that asserts that the state has an affirmative duty to take the public
interest into account in the planning and allocation of water resources. This is a common law doctrine,
but there is also a statutory component of the public trust doctrine embodied in the Fish & Game Code
which states that fish and wildlife of the state are held in trust for the people of the state.
Pueblo rights – A water right based in a municipality’s status as a successor to a Spanish-law pueblo.
Arguably the strongest water right in California, the pueblo right is held by only a few California cities.
Reserved rights – a right to water on federal lands for entities such as Indian reservations and national
parks. When the federal government withdraws land from the public domain, such as establishing a
reservation, it is recognized that such water as needed to accomplish the purposes of the reservation were
“reserved” and thus not subject to appropriation under state law.
Riparian - a right to surface water based upon location, specifically a property's being located next to, or
contiguous, to the waterway.
Rule of Capture - the common law principle that a surface landowner can extract all the groundwater
beneath the land by drilling or pumping, even if doing so drains away groundwater to the point of drying
up springs and wells from which other landowners benefit. This doctrine does not exist today as it was
limited by concepts such as reasonable and beneficial use, which applies to all waters in the state.
RWQCB (Regional Water Quality Control Board) – Nine RWQCB’s operate in California with the
“responsibility for the coordination and control of water quality” (See Water Code § 13001). They are
supervised by the SWRCB.
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Safe yield – defined as the maximum quantity of water which can be withdrawn from a ground water
supply without a negative result.
SGMA (Sustainable Groundwater Management Act) – landmark legislation passed in 2014 that brings
groundwater of the state under a degree of regulation, which had long been resisted by various interest
groups. Prior to the SGMA, groundwater usage was essentially unregulated (unless the groundwater in a
particular basin had been adjudicated).
SSO’s (Sanitary sewer overflows) – a sewer system overflow that reaches waterways or violate
discharge permits and thus violates the Clean Water Act.
Subsidence – a lowering of the ground level because of excessive groundwater pumping.
Surface Water – By common definition, surface waters are those waters on the surface of the earth, as
contrasted to groundwater, which is found below the surface. Examples of surface water are rivers,
creeks, lakes and marshes. But California cases exist which define surface water as water “naturally
falling and spreading over lands,” before such water joins a “natural watercourse.” See Mogle v. Moore,
16 Cal.2d 1 (1940).
Surplus water - Water remaining after accounting for all present uses by riparian or appropriative users.
This water is considered surplus and is available for appropriation by those who follow the relevant
provisions of the law.
Sustainable yield (or “safe yield”) - the maximum amount of water that can be withdrawn annually from
a groundwater supply without causing an undesirable result.
SWP (State Water Project) - the SWP is operated by the Department of Water Resources and is the
nation’s largest state-built water system. Construction began in the late 1960’s. Approximately 75% of
the water handled by the SWP is for urban uses. The DWR has long-term water contracts that deliver
water to 29 local agencies.
SWRCB (State Water Resources Control Board) – the California state agency with the primary
authority for managing the state’s water resources. The SWRCB allocates water rights, adjudicates
disputes, develops water protection plans, establishes water quality standards, and oversees the nine
RWQCB’s.
Usufructuary – refers to a legal right to the use of water, but not actual ownership of the body of water
itself.
Watermaster – a court-appointed administrator with the role of managing the implementation of a court
order or decree. E.g., an adjudicated groundwater basin may be overseen by a watermaster. A
watermaster may be an individual or group of individuals.
WSIP (Water Storage Investment Program) – a program that will build a number of water storage
projects, to be administered by the California Water Commission. Funded through the Water Quality,
Supply and Infrastructure Improvement Act of 2014, which authorized $2.7 billion in spending.
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Additional terms can be located on “Water Words – Glossary and definition” page maintained by the
SWRCB: http://www.waterboards.ca.gov/publications_forms/available_documents/water_words.shtml
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