Prior appropriation, or the notion of “first in time, first in right,” has been a prime directive of California water law for well over 150 years. It has brought us a system that is so inequitable in its impacts that more than one million residents of California lack access to safe drinking water, while industrial agriculture used more water to grow almonds and pistachios during California’s last drought than all of California’s residents. And while so-called “senior” water rights holders in the Sacramento Valley flood irrigate hundreds of thousands of acres during our current drought, reservoirs are drained of the cold water that our salmon need to survive and reproduce, pushing several native species to the brink of extinction.
The system of prior appropriation has resulted in these impacts because it was built on a fundamentally racist foundation. The prior appropriation doctrine was adopted in the mid-19th century to support the ability of European immigrants to mine, farm, and settle the West, while actively engaging in the massacre of Native Americans that had lived here for millennia. As explained in this visual history of Native American genocide in California and the United States, “[a]fter John Sutter discovered gold in California’s Central Valley in 1848, colonists launched slaving expeditions against native peoples in the region. ‘That a war of extermination will continue to be waged between races, until the Indian race becomes extinct, must be expected,’ the state’s first governor instructed the legislature in 1851.’”
It is against this backdrop that California allowed primarily white men—most other races and genders were not allowed to own property during the height of the prior appropriation era—to begin staking their claims to the State’s rivers and streams by literally tacking a note to a tree declaring the flow of a river to be theirs. This is the claim of right by which “senior water rights holders” in California assert their continued primacy to the state’s precious waterways. In reality, of course, Native Americans used many of the State’s rivers and lakes for sustenance and cultural practices long before these interlopers tacked their notes to a tree, from the Yurok Tribe’s dependence on salmon in the Klamath Basin, to the Pit River Tribe’s spiritual use of Medicine Lake, to the reliance by the Winnemem Wintu or “Middle Water People” on the McCloud and upper Sacramento Rivers for their very existence. But these more senior water uses are often ignored or overlooked in California’s water management regime. Indeed, even when federally recognized Tribes do obtain recognition of their water rights, usually via multi-decadal court battles, those more senior water rights are all too often not recognized in practice.
Many reforms have been proposed and novel approaches posited to address the continued inequitable and racist legacy of the prior appropriation doctrine in California. Legislative reforms are valuable and needed. But the State already has the legal authority to mitigate many of the inequitable effects of our water rights system, particularly California’s longstanding constitutional and common law tools of reasonable use and public trust. These doctrines allow (and in some cases require) regulators to re-evaluate all water rights and re-prioritize water use in the State. The doctrines can be used to ensure that there is adequate water for human health and safety before satisfying senior water rights for irrigation, to ensure that sufficient water is maintained in our rivers and streams to keep native fish and ecosystems healthy, or to protect against harmful algal blooms and other scourges caused by excessive freshwater diversion.
But these existing authorities must be enforced. Even though State law (Water Code section 85023) requires that “[t]he longstanding constitutional principle of reasonable use and the public trust doctrine shall be the foundation of state water management policy and are particularly important and applicable to the Delta,” those who benefit from our unjust water rights system use their political power to maintain the destructive status quo in California water and prevent regulators from doing their job of protecting the Public Trust. Instead, these entrenched interests push the state to approve illusory “voluntary agreements” and other approaches that simply reward prior appropriators for their privileged status, fail to protect the environment, and barely chip away at the edges of our misaligned water system.
The prior appropriation doctrine has a left a deep and enduring scar across the western United States that will not be fixed without bold and visionary action. Thirty years ago, in a witty and prescient article, Professor Charles Wilkinson declared prior appropriation dead. His 1991 article, titled “In Memoriam: Prior Appropriation 1848-1991,” noted that his anthromorphized “Mr. Prior Appropriation” simply couldn’t change, and that, in the end, would be his undoing. As Professor Wilkinson stated about Mr. Prior Appropriation’s legacy:
“The Bureau of Reclamation alone has built 355 storage reservoirs and 15,000 miles of canals, 1,333 miles of pipelines, and 275 miles of tunnels. More than 100,000 miles of canals divert the flows of western rivers and deliver water to irrigators and other water users. More than a million artificial reservoirs, lakes, and ponds store 294 million-acre feet. This is the equivalent of 22 whole Colorado Rivers backed up behind dams and over former canyons. It is enough to put Montana, Wyoming, Colorado, and New Mexico-an entire tier of states from Canada to Mexico-under a foot of water. All of that creativity and energy was unleashed by the simple, time-proven idea that the ingenuity and diligence of the individual American should not be shackled.”
It's time to put the interests of the community above the interests of the ancestors of a handful of white settlers who staked their claim to our public resources over a century ago. Mr. Prior Appropriation is dead; long live Ms. Reasonable Use and Miss Public Trust!