CA WATER POLICY CONFERENCE: Water Rights in an Era of “Permanent” Conservation Mandates: Are Reports of Their Death Greatly Exaggerated?

With surface water, there are two different types of rights: riparian rights and appropriative rights.
Priority is not the most important thing in California law; reasonableness is.
“And though water rights priority is not the end all and be all, it is the foundation of the system we have.” The priority system serves two really important purposes that have to do with conditions that exist.
“As a matter of fact, Article 10 Section 2 that sets forward the reasonable use doctrine says, ‘Because of the conditions that exist in the state of California, because of the scarcity of water, we developed a system based on priority of right,’” he said.
So in order to be able to prudently plan and make the investments in infrastructure necessary to provide that public service, we have to have certainty in what our supply is going to be.” “What I believe that the proposed conservation framework does is it intentionally ignores the system of priority, which is what our water rights appropriation system is founded upon, and it tries to move us to something more closely related to the system that looks more closely to what we have on the east coast, which is that it’s a correlative right rather than a right based on priority.
And that would have impacted use.” “Of course there would be litigation over that, and that would be firmly grounded though in the reasonable use doctrine of determining that certain use in some places is unreasonable; you could do the same thing for certain agricultural crops in some places so there is that authority historically to determine reasonable use,” Mr. Garner said.
So those are two different things.
I think we do need to look at things as a whole and make sure the water is going where we want it to be going.
“That coupled with the fact that there is no way it’s ever going to change frankly because our takings laws and all sorts of other things are quite different than Australia’s means that this is the system that we have, whether we like it or not, and I don’t think we are going to move from it quickly.” Mr. Rose pointed out that in terms of the overlay of conservation or efficiency versus water rights, there is a different way of looking at it.
“In order to achieve real efficiency of water usage and conservation, you have to make a financial incentive for water agencies to do that.

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