Title: California Water Law in Perspective by Gavin M. Craig, Chief Counsel, State Water Resources Control Board
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Title: California Water Law in Perspective by Gavin M. Craig, Chief Counsel, State Water Resources Control Board
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Abstract: Jake Varn Collection - California Water Law in Perspective by Gavin M. Craig, Chief Counsel, State Water Resources Control Board (JDV Box 86)
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CALIFORNIA WATER LAW

IN

PERSPECTIVE*

By
; GAVIN M. CRAIC, Chief Counsel
State Water Resources Control Board


Page
:, Introduction ------------------ ----- ---- LXV
:: Water Rights --------. ----- -.---.----------..-- ---_ -- LXIX
A. General ------ ----- -------------------- LXIX
B. Historical Development ----------------------- LXXI
C. Recent Trends --------------- ----- ------ LXXXIII
:::. State Government Agencies ------------.-- ------------- LXXXV
A. Department of Water Resources --------.. -------- LXXXV
B. The State Water Resources Control Board .------- XCII
C. Regional Water Quality Control Boards ------------ XCV
D. California Water Commission --------------------- XCVI C .
E. The Reclamation Board ------------------------- XCVII"
F. The State Treasurer ---------------------------.--- XCIX :
G. Other State Agencies ----------------------_--- C -
:*. Cities, Counties, and Water Districts ----------. -------- CII

I. INTRODUCTION
I "Nobody ever thoroughly understands California. It is
J,: changing too fast for anyone to get a good look at it-par-
:i. ularly tourists. *
"For their benefit, as well as that of new residents, we
observe that the most important thing to remember about
:!the State is that it is a land of extremes-of geography, of
!climate, of people. And between the extremes there is al-
:;:ost every imaginable degree of diversity. -J:j
"It is well known, for example, that California possesses
the highest and lowest points in the United States (Mt.
Whitney, 14,495 feet in elevation, and, nearby, Death Valley,
20O feet below sea level).
"It is perhaps not quite so well known that California
also has the Nation's third largest river system (the Sacra-
S *;:. i a revision of the commentary and George H. Murphy, Deputy Leg-
..e 'alifornia Water Law, orig- islative Counsel, and published in the-
S.. in: p rered by J. D. Strauss, 1956 Edition of West's Annot-ate(I
: ..d Deputy Legislative Counsel, California Water Code.
LXV







CALIFORNIA WATER LAW IN PERSPECTIVE


mento-San Joaquin) and the longest single mountain range
(the Sierra Nevada). It also holds the national records for
the highest temperature ever officially recorded (134 degrees
at Death Valley in July, 1913) and the greatest seasonal
snowfall (74 feet at Tamarack in the Sierra in the winter of
1906-07).
"Its average rainfall ranges from 100 inches a year in the
northwest redwoods to two inches in the southeast deserts.
The fertility of its valleys is unsurpassed anywhere in the
world, and nearly every natural mineral present on the earth
can be found within its borders.
"People are pouring into California in the greatest mass
migration in history. The State's population (now 13,000,-
000) has more than doubled since the beginning of World
War II and is currently increasing by more than 1000 a day.
"We have here, then, a region of unparalleled diversity
of climate and resources, a population constantly supple-
mented and invigorated by new migrations of people with
varying backgrounds from every part of the earth.
"The result is that California is a dynamo of creative
activity. The Californian is a particular kind of person;
his imagination, stimulated by the immense variety of the
land and the activity around him, is constantly finding new
ways to do everything from growing peaches to drilling wells
to making shirts to building dams.
"A. P. Giannini conceived a new kind of bank and made
it the world's largest. Henry Kaiser developed revolution-
ary new ideas in half a dozen fields, as did S. D. Bechtel in
engineering, J. D. Zellerbach in paper, Stanley Hiller and
Donald Douglas in aircraft, Walt Disney in cinema.
"The use of airplanes in farming was first developed on
a large scale here, and on the vast farm-factories of the Cen-
tral Valley, agriculture is mechanized to an extent unknown
elsewhere. Among other things, Californians developed the
Fresno scraper, the Caterpillar tractor, the clamshell dredge
and many elements of the combine harvester.
"California farmers grow two and three times as many
bales of cotton, boxes of strawberries and lugs of tomatoes
per acre as are grown in the rest of the country. Alto-
gether they raise 269 different kinds of crops, including
dozens of varieties originated in California.
"Industrially, the variety of products and innovations is
almost as great. Californians build more airplanes, drive
more cars and construct more new houses than the people
S. "" .. "- -''. _' '.-' on earth.







CALIFORNIA WATER LAW IN PERSPECTIVE


"In many ways California occupies the same position in
relation to the U. S. as a whole that this country holds in
relation to the rest of the world: It is the area where the
greatest change is taking place-a frontier of experimenta-
tion, invention and innovation in better ways of working
and living.
"In an age when the overriding concern of the vast ma-
jority of the human race is learning new ways to produce
more food and clothing and some of the comforts of life,
California serves as both an example and a symbol of what
man can do in remaking the world around him." 1
Where in years past the vista of the traveler along the east side
of California's San Joaquin Valley alternated between verdant farm
land and desert, today as a result of the Central Valley Project the
tourist sees irrigated farms for practically the length of the Valley.
The water from this and other projects in California today spells
gold. For land that is worthless without water, with it becomes
productive for agriculture, industry, and accompanying homesites.
Today as in the past men are fighting for that water and for the
benefits and the empire that accompanies it. The weapons may be
modified, but the fight is no less rigorous, nor the spoils any the
kess. The gun has simply given way to the silver tongue.
Contemplating the story of California's legal treatment of her
water, it is difficult not to speculate upon which happening was cause
and which effect. Is it not possible that recurring spurts of activity
in favor of reclamation and flood control were due to immediate
inclemencies? And, intervening lassitude to mild winters? Did not
Lux v. Haggin, establishing in 1886 riparian rights in California's
water law, reflect the passing of the State's economy from predom-
inantly mining to agriculture? And, was that decision not responsi-
ble for the Wright Act 3 in 1887 permitting the formation of irriga-
tion districts? The evidence is plentiful that Herminghaus v. South-
erm California Edison Company,4 hoisting high the banner of the
riparian, was the immediate cause of the 1928 constitutional amend-
ment in favor of the appropriator. Finally, City of Pasadena v.
City of Alhambra 6 in 1949, putting overlying users and prescriptors
of underground water upon an equal footing, has been followed with
legislation applicable to Southern California in 19517 and 1955 8
i. "**Clifornia: The Land of Change", 5. Const. art. 14, 3.
editorial San Francisco Chronicle,
Aug. 21, 1955. 6. 207 P.2d 17, 33 C.2d D90S, ceriornri
g. 21, denied 70 S.Ct. 071, 330 U.S. 937, 94
:. 10 P. 074, 69 C. 255. L.Ed. 1354.
3. Stats.1887, c. 34. 7. Stats.1951, c. 1301; Water Code
1005.1, 1005.2.
4. 252 P. 607, 200 C. 81, certiorari dis- 1005 1005
rc:i-.l'd 48 S.Ct. 27, 275 U.S. 486, 72 L. 8. Stats.1955, c. 1887; Water Code
S!!. 37. 1005.1, 1005.2.
--XVII







CALIFORNIA WATER LAW IN PERSPECTIVE

protecting the right to the underground water of a user who tempo-
rarily uses an alternate nontributary source and with other legisla-
tion in 1955 permitting the formation of replenishment districts 9
and requiring the filing of notice of the extraction and diversion of
ground water.10

In California the United States Bureau of Reclamation, which
constructed the Central Valley Project and the Boulder Canyon
Project, has on occasion been made out as a goliath." Yet, there
is some basis for considering that agency subject to the California
law of water." On the other hand, the Federal Power Commission,
from which a license must be obtained for power development on
navigable streams and public lands and reservations of the United
States,13 while theoretically also subject to State water law, has been
held to have power to determine that law for itself.14 Since the
provision in the Reclamation Law relied upon to require the Bureau
of Reclamation to conform to State law 1 bears considerable re-
semblance to the provision in the Federal Power Act which directs
the same result,"1 is it not possible that there are in fact two goliaths
roaming California practically unfettered by its law?
These matters pertaining to federal agencies are mentioned here
in order to bring some perspective to the picture of California water.
However, to tell the whole story of federal agencies and water would
require an analysis of many things not germane to an analysis of
California water law. Here, as briefly as possible, that law will be
summarized.

In doing so, notice is taken of the codification of many of the stat-
utes of California pertaining to water in the Water Code" as the
result of the work of the California Code Commission.s1 Statutes


9. Stats.1955, c. 1514; Water Code
60000-60449.
10. Stats.1955, c. 1869; Water Code
4999-5008.
:I1. See "They Would Rule the Valley",
Ilon. Sheridan Downey, 1947.
12. United States v. Gerlach Live Stock
Co. (1950), 70 S.Ct. 955, 339 U.S. 725,
94 L.Ed. 1231, 20 A.L.R.2d 633.
13. 16 U.S.C.A. 797.
14. First Iowa Hydro-Electric Coopera-
tive v. Federal Power Commission


High-The Fight over Western Water
Rights is Underway", extension of re-
marks of Hon. Frank A. Barrett, Sen-
ator from Wyoming, Appendix, Con-
gressional Record, Aug. 25, 1955, pp.
A6209-A6213.
15. 43 U.S.C.A. 383.
16. 16 U.S.C.A. 821.
17. Stats.1943, cc. 368-372; Stats.1949,
c. 274; Stats.1951, cc. 336, 390, 391;
Stats.1953, c. 155; Stats.1955, cc. 49,
56.
18. The work was under the general


(1946) 66 S.Ct. 906, 328 U.S. 152, 90 editorial supervision of Joseph W.
L.Ed. 1143, rehearing denied 66 S.Ct. Paulucci, Member of the State Bar of
1336, 328 U.S. 879, 90 L.Ed. 1647; Fed- California and Deputy Legislative
eral Power Commission v. State of Counsel of California. Divisions 1 and
Oregon (1955), 75 S.Ct. 832, 349 U.S. 2 of the Code were drafted by Mr.
435, 99 L.Ed. 683; "The Stakes Are Paulucci personally.
__LXVIII


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CALIFORNIA WATER LAW IN PERSPECTIVE

pertaining to water not codified in the Water Code may have been
codified elsewhere 10 or in the case of little used district general laws so
or special district laws 21 have neither been codified nor repealed.


I. WATER RIGHTS

A. GENERAL

Reflecting the rapid and turbulent growth of a State created to
govern a population that had swarmed to the West seeking gold
and stayed to build an agricultural empire, California's water law
combines the two principal doctrines of water rights which are
based on opposing principles, the doctrine of appropriative rights
and the doctrine of riparian rights. In addition, it recognizes the
rights of the overlying owner to the use of ground water and rights
secured by prescription.

These rights are usufructuary in character, extending to the use
of the water rather than to ownership of the corpus of the water
itself.'2 They may be distinguished, generally, as follows:

(1) Riparian Rights. The riparian right is based on ownership of
land contiguous to a surface or underground stream, a lake, or a
pond 23 and exists without regard to use or priority of use. The
riparian owner is vested with a right to the use of so much of the
water as may be required for reasonable and beneficial purposes on
his riparian lands.24 Riparian lands must be within the watershed
of the water to which it is riparian and, with certain exceptions,
contiguous to or abut the body of water. The length of frontage
on the body of water is an immaterial factor; however, the riparian
right extends only to the smallest tract under one title in the chain
of title leading to the present owner.25

19. For example, Fish & Game Code P. 520, 155 C. 82, 22 L.R.A.,N.S., 401,
520-555. 132 Am.St.R. 59, 17 Ann.Cas. 823.
20. For example, Stats.1941, c. 1253. 24. "Water Rights in the Western
States", 3d ed., Wiel, pp. 18-20; "The
21. For example, Stats.1023, c. 452. California Law of Water Rights",
Hutchins, p. 220; Lux v. Ilaggin
22. "The California Law of Water (1886) 10 P. 674, 69 C. 255; Arroyo
tights", Hutchins, pp. 3G-38; cf. Wa- Ditch & Water Co. v. Baldwin (1909)
ter Code 102. 100 P. 874, 155 C. 280; Peabody v.
r C City of Vallejo (1935) 40 P.2d 480, 2
C.2d 351.
23. "The California Law of Water
Rights", Hutchins, pp. 190-200, 210; 25. "The California Law of Water
Turner v. James Canal Co. (1909) 99 Rights", IIutchins, pp. 198, 201.
LXIX






CALIFORNIA WATER LAW IN PERSPECTIVE


(2) Appropriative Rights. The appropriative right exists without
regard to contiguity of land to the water and is based on the taking
of possession of the water for a beneficial use, the first user acquir-
ing a prior right to continue the use over subsequent appropriators.2"
Such rights are applicable to definite bodies of surface water and to
all ground water.27 They depend on use and may be lost by non-
use.28

An exclusive procedure for obtaining appropriative rights to defi-
nite bodies of surface water and to ground water flowing through
known and definite channels is prescribed by law.29

(3) Overlying Rights. The right of the owner of lands overlying
percolating ground water is the right to use such water for reason-
able beneficial purposes on the overlying land, a right analogous to
the riparian right. As between overlying owners, such rights are
correlative and each owner is entitled to an equitable apportionment
if the supply is insufficient to meet the needs of all.30 Overlying
rights are not subject to loss merely by non-use.31

(4) Prescriptive Rights. The prescriptive right is acquired by ad-
verse use of the water for the statutory period.32 Such rights can
be acquired as against riparian and overlying owners.33 They can
be acquired as against most appropriators; however, there is con-


26. "Water Rights in the Western
States", 3d ed., Wiel, pp. 166-172, 304;
"The California Law of Water
Rights", Hutchins, pp. 40, 71, 130;
City of Pasadena v. City of Alhambra
(1949) 207 P.2d 17, 33 C.2d 908, cer-
tiorari denied 70 S.Ct. 671, 339 U.S.
937, 94 L.Ed. 1354.
27. "The California Law of Water
Rights", Hutchins, pp. 67-70, 421,
423, 454; City of Pasadena v. City
of Alhambra (1949) 207 P.2d 17, 33 C.
2d 908, certiorari denied 70 S.Ct. 671,
339 U.S. 937, 94 L.Ed. 1354.
28. "Water Rights in the Western
States", 3d ed., Wiel, p. 603; Wright
v. Best (1942) 121 P.2d 702, 19 C.2d
368.

29. Water Code, Div. 2, Pt. 2, 1201.

30. "The California Law of Water
Rights", Hutchins, pp. 436-437.


31. City of Pasadena v. City of Alhanm
bra (1949) 207 P.2d 17, 33 C.2d 908,
certiorari denied 70 S.Ct. 671, 339 U.S.
937, 94 L.Ed. 1354; Katz v. Walkin-
shaw (1902) 70 P. 663, 74 P. 766, 141
C. 116, 64 L.R.A. 236, 99 Am.St.R.
"i5.

32. City of Pasadena v. City of Alhann-
bra (1949) 207 P.2d 17, 33 C.2d 908,
certiorari denied 70 S.Ct. 671, 339 U.S.
937, 94 L.Ed. 1354.

33. "Water Rights in the Western
States", 3d ed., Wiel, p. 916; City of
Pasadena v. City of Alhambra (1949)
207 P.2d 17, 33 C.2d 908, certiorari de-
nied 70 S.Ct. 671, 339 U.S. 937, 94 L.
Ed. 1354; Arroyo Ditch & Water Co.
v. Baldwin (1909) 100 P. 874, 155 C.
280; Bathgate v. Irvine (1899) 58 P.
442, 126 C. 135, 77 Am.St.R. 158.


XX


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CALIFORNIA WATER LAW IN PERSPECTIVE

siderable doubt that a right to water which is subject to statutory
appropriation can be obtained in any other manner than through
compliance with the procedure prescribed by law.34


B. HISTORICAL DEVELOPMENT

Prior to its cession to the United States by the Treaty of Guada-
lupe Hidalgo in 1848,35 the region now included in California was
under Mexican law. The doctrine of riparian rights governed the
use of water, subject to the right of the Mexican Government to
make grants and concessions on the public domain where there were
no riparian owners. Such a general concession was made to agri-
cultural settlements of pueblos located on public lands under which
they were granted waters on the surrounding lands to the extent
necessary for their general supply. Since the area was largely un-
inhabited and no known special grants or concessions were made,
S the only vested rights carried over when the area was ceded to the
United States were the pueblo rights and riparian rights for such L
lands as were in private ownership.36

Water rights, as such, first became important with the discovery
of gold in 1848 when the miners, in absence of other law, adopted
regulations out of which grew the custom of'recognizing rights based
on appropriation.37 This custom was incorporated into State law
when, following the admission of California into the United States
in 1850, the first Legislature enacted a statute recognizing the cus-
toms, usages, and regulations with respect to mining claims when
not in conflict with the Constitution and laws of the State.38

The 1850 Legislature had previously adopted, by statute, the com-
mon law of England, "so far as it is not repugnant to or inconsistent
with the Constitution of the United States, or the Constitution or

34. 42 Cal.L.Rev. 219; cf. "The Cali- Live Stock Co. (1950) 70 S.Ct. 955, 339
fornia Law of Water Rights", Hutch- U.S. 725, 94 L.Ed. 1231, 20 A.L.R.2d
ins, p. 334. 033; City of San Diego v. Cuyamaca
Water Co. (1930) 287 P. 475, 209 C.
35. 9 U.S.Stat. at L. 922. 105; City of Los Angeles v. Hunter
(1909) 105 P. 755, 156 C. 603.
36. "Water Rights in the Western
States", 3d ed., Wiel, p. 68; "Selected 37. "Water Rights in the Western
Problems in the Law of Water Rights States", 3d ed., iel, pp. 72-73.
In the West", Hutchins, p. 83; "The 38. Stats.1851, c. 5, 621, now Code of
Development of the Law of Waters in Civil Procedure 748; "Water Rights
the West", Hon. Lucien Shaw (1922), in the Western States", 3d ed., Wiel,
IS9 C. 779; United States v. Gerlach p. 74.
LXXI





CALIFORNIA WATER LAW IN PERSPECTIVE


laws of the State of California." 39 The common law of England
included the doctrine of riparian rights.40

Rights based on the appropriation of water on public lands were
recognized by the State courts as early as 1853.41 They were also
recognized and affirmed by the United States as against itself by
the Act of July 26, 1866 and as against later riparian patentees
by the Act of July 9, 1870.43 In 1872 appropriations of water were
recognized by State statute,44 and while the appropriation still de-
pended on the taking of possession of the water, provision was made
for the initiation of the right by posting a notice at the point of di-
version and recording a copy thereof in the office of the county re-
corder, the right to use relating back to the time of so posting notice
if the appropriator exercised diligence in completing the works for
the diversion of the water.

Any possible question as to the applicability of the doctrine of
riparian rights was set at rest in 1886 by the decision in Lux v.
Haggin45 when the California Supreme Court ruled that riparian
rights attach to riparian land when it becomes private property and,
while subject to the priority of earlier appropriations on public lands,
the riparian rights were paramount to subsequent appropriations.46
On the other hand, an appropriation on privately owned land for


39. Stats.1850, c. 95.

40. Lux v. Haggin (1886) 10 P. 674, 69
C. 255. As adopted in 1850 by Califor-
nia, the common law riparian doctrine
vested in each owner of land contigu-
ous to a stream the right to the nat-
ural and usual flow of the stream, un-
less the quantity was diminished as a
consequence of the reasonable applica-
tion of it on riparian lands by other
riparian owners. For the riparian
proprietor to entirely consume the wa-
ter, except for domestic uses and the
like, was to use it unreasonably, and
an entire diversion (consumption or di-
version without returning it) of a wa-
tercourse by an upper riparian pro-
prietor for irrigation was never al-
lowed. As between riparian owners
all had equal and correlative rights to
use the water on their riparian lands
for irrigation and other so-called ex-
traordinary purposes, as distinguished
from natural and ordinary purposes
such as domestic uses, regardless of
priority of use. ("Water Rights in the
Western States", 3d ed., Wiel, p. 858.)


41. Eddy v. Simpson (1853) 3 C. 249,
58 Am.Dec. 408; Irwin v. Phillips
(1855) 5 C. 140, 63 Am.Dec. 113.

42. 14 U.S.Stat. at L. 251. The Act of
July 26, 1866, was regarded by the
United States Supreme Court as an
unequivocal grant for existing diver-
sions of water on the public lands in
Broder v. Natoma Water & Mining Co.
(1879) 101 U.S. 274, 25 L.Ed. 790. Cf.
Federal Power Commission v. State of
Oregon (1955) 75 S.Ct. 832, 349 U.S.
435, 99 L.Ed. 683, holding the act in-
applicable to reserved lands, as dis-
tinguished from public lands open to
entry.

43. 16 U.S.Stat. at L. 217.

44. Civil Code 1410-1422.
45. 10 P. 674, 69 C. 255.

46. Lux v. Haggin (1886), 10 P. 674, 741,
69 C. 255, 372; United States v. Ger.
lach Live Stock Co. (1950) 70 S.Ct. 955,
339 U.S. 725, 94 L.Ed. 1231, 20 A.L.R.
2d 633.


LXXII





CALIFORNIA WATER LAW IN PERSPECTIVE

u:,e on such lands is not paramount to the rights of subsequent
ripariann patentees.'7

Because of its exhaustive analysis of the doctrine of riparian
rights, the case of Lux v. Haggin remains one of the leading cases
in California water law. In that case the court considered many
important issues and held, among other things, that upon the admis-
sion of California to the Union, it became vested with the rights,
sovereignty, and jurisdiction in and over navigable waters, and the
soils under them, which were possessed by the original states after
the adoption of the Constitution of the United States; 48 that the
United States was the owner of all non-navigable streams on the
public lands of the United States within the boundaries of California,
and of their banks and beds; 49 and that unless reserved, a grant of
public land of the United States carried with it the 'common law
right to a non-navigable stream."0

The essence of the riparian doctrine was applied as to underground
v.aters in Katz v. Walkinshaw 51 in 1902 when the Supreme Court
held that the overlying owners had equal and correlative rights in
the underground water for use on their overlying lands. As between
such owners the priority of use is immaterial, and the use by the
overlying owner is superior to that of the taker for use on non-
overlying lands.5

In 1913 the Legislature enacted the Water Commission Act 3
creating the State Water Commission and providing a statutory
procedure to be followed in the appropriation of unappropriated
water flowing in any natural channel for useful and beneficial pur-
poses. This method of appropriation was made exclusive by an


47. San Joaquin & Kings River Canal &
Irr. (o. v. Worswick (1922) 203 P. 9!99,
Is7 C. 674, certiorari denied 42 S.Ct.
::'2, 258 U.S. 625, 66 L.Ed. 797.

48. 10 P. 674, 719, 69 C. 255, 335.

49. 10 P. 674, 720, 69 C. 255, 336; cf.
C'alifornia Oregon Power Co. v. Beaver
1'ortland Cement Co. (1935) 55 S.Ct.
725, _29 U.S. 142, 79 L.Ed. 1356, in
which the court held that following
the Desert Land Act of 1877, if not
:'fore, all non-navigable waters then
a part of the public domain became
publici juris, subject to the plenary
control of the states with a right in
,ach to determine for itself to which
extent the rule of appropriation or the
oinunon law rules in respect to ri-
parian rights should obtain; but, see


,Federal Power Conmnission v. State of
Oregon (1955) 75 S.Ct. 832, 349 U.S.
43:5, 99 L.Ed. 683, holding the act in-
applicable to reserved lands, as dis-
tinguished from public lands open to
entry.

50. 10 P. 674, 722, 69 C. 255, 339.

51. 70 P. 663, 74 P. 766, 141 C. 116, 64
L.R.A. 236, 99 Am.St.R. 35.

52. "The California Law of Water
Rights", Hutchins, p. 441; City of
Pasadena v. City of Alhambra (1949)
207 P.2d 17, 33 C.2d 908, certiorari de-
nied 70 S.Ct. 671, 339 U.S. 937, 94 L.
Ed. 1354.

53. Stats.1913, c. 586.


LXXIII


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CALIFORNIA WATER LAW IN PERSPECTIVE


amendment to the Water Commission Act in 1923,5- thus eliminating
appropriation by preemption with respect to such waters.
The provisions of the Water Commission Act, as amended, are
now contained in Divisions 1 and 2 of the Water Code. The statu-
tory provisions for the appropriation of water are found in Part 2
of Division 2 and provide, generally, for the filing of applications
to appropriate unappropriated water and the issuance of permits
upon approval of the application. Under the permit the applicant
is authorized to construct necessary works and to take and use the
amount of water specified for beneficial purposes. Upon the com-
pletion of the works and use of the water in conformity with law,
the applicant is issued a license. An application properly prosecuted
to license gives the appropriator a priority of right as of the date
of the application.
California's water law, thus incorporating the strict common
law doctrine of riparian rights modified by the doctrine of appropria-
tive rights, was without major change for more than 40 years (1886-
1928). However, during that time the economy of the State changed
materially. With the growth of industrial centers and with agricul-
ture continuing to replace mining as the principal industry of the
State, the water law no longer met the changed conditions. This
was brought into sharp focus in 1926 in the case of Herminghaus
v. Southern California Edison Company,55 when the court held that
as against appropriators the riparian owner was entitled to the full
flow of the stream without regard to reasonableness, the doctrine of
reasonable use applying only as between the riparian owners.
Under the riparian doctrine as set forth in the Herminghaus case
storage of water during the winter months for use in the summer
months, a practice essential to agriculture and municipal water sup-
ply, was not permitted. This result led to the amendment of the
Constitution, proposed by the Legislature in 1927 and adopted in
1928, limiting the right of the riparian to water reasonably required
for beneficial use. As stated in the ballot argument favoring the
amendment prepared by Assemblymen B. S. Crittenden 56 and R. P.
Easley:
*California has practically no rain in the sum-
mer. The State's future development requires that its water

54. Stats.1923, c. 87. State Water Resources Act of 1945
(Stats.1945, c. 1514), which created the
55. 252 P. 607, 200 C. 81, certiorari dis- agency that became the principal plan-
missed 48 S.Ct. 27, 275 U.S. 486, 72 L ning agency in water matters for the
Ed. 387. State. He served for many years as
the chairman of the Joint Legislative
56. Hon. Bradford S. Crittenden, later Committee on Water Problems.
as Senator, was the lead author of the
LXXIV




P__


rLAlilIJNIA vVAItia LjAW I1N rI'aICsjKcrU;TIVL':

shall be stored in order that it may be used in summer and
fall for domestic use for great cities, irrigation of lands, de-
velopment of power, navigation, and for the purpose of flood
control.
"The Legislature, not realizing the future needs of Cali-
fornia, in 1850 adopted the common law rule of England
and in 1886 the Supreme Court of this State in the case of
Lux vs. Haggin, declared that the Legislature had adopted
the English doctrine of riparian rights. *
"This rule has been continuously followed in this State,
notwithstanding that the climatic conditions in California
are entirely different from those in wet and foggy Eng-
land. *
"Under the present interpretations the riparian owner is
not bound by any rule of reasonableness in the use of water.
"For example, in the Herminghaus case it was held that
approximately 97 per cent of the water of the streams
should flow by the land, in order that 3 per cent might be
used for irrigation. *"
The proposed amendment was adopted by the people on November
6, 1928, and added Section 3 to Article XIV of the Constitution: o
"Sec. 3. It is hereby declared that because of the condi-
tions prevailing in this State 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 right to water or to the use or flow
of water in or from any natural stream or water course in
this State is and shall be limited to such water as shall be
reasonably required for the beneficial use to be served, and
such right does not and shall not extend to the waste or un-
reasonable use or unreasonable method of use or unreason-
able method of diversion of water. Riparian rights in a
stream or water course attach to, but to no more than so
much of the flow thereof as may be required or used con-
sistently with this section, for the purposes for which such
lands are, or may be made adaptable, in view of such reason-
able and beneficial uses; provided, however, that nothing
herein contained shall be construed as depriving any riparian
owner of the reasonable use of water of the stream to which
his land is riparian under reasonable methods of diversion
LXXV






CALIFORNIA WATER LAW IN PERSPECTIVE

and use, or of depriving any appropriator of water to which
he is lawfully entitled. This section shall be self-executing,
and the Legislature may also enact laws in the furtherance
of the policy in this section contained." 7
The new section, sustained as a legitimate exercise of the police
power,58 has become the keystone of California water law, making
the doctrine of reasonable use applicable to all water rights enjoyed
or asserted in California. As stated by the court in Peabody v. City
of Vallejo: 59
"We therefore conclude That the rule of rea-
sonable use as enjoined by section 3 of article XIV of the Con-
stitution applies to all water rights enjoyed or asserted in
this State, whether the same be grounded on the riparian
right or the right, analogous to the riparian right, of the
overlying land owner, or the percolating water right, or the
appropriative right."
As to what constitutes a beneficial use depends on the facts and
circumstances of each case, and what would be a reasonable beneficial
use, where water is present in excess of all needs, might not be a
reasonable beneficial use in an area of scarcity and great need. What
is a beneficial use at one time may, because of changed conditions,
become a waste of water at a later time.60
Adoption of the 1928 amendment paved the way for the construc-
tion of projects to develop, conserve, and distribute the water essen-
tial to the health, safety, and welfare of California's rapidly multi-
plying population. For this purpose steps were taken to make pos-
sible the development contemplated by the amendment. At its 1927
Session, the Legislature established a priority to the water necessary
for a general or coordinated plan by enacting a measure that required
the Department of Finance (after July 5, 1956, the Department of
Water Resources 61) to file applications to appropriate water which,
in its judgment, "is or may be required in the development and com-
pletion of the whole or any part of a general or coordinated plan
looking toward the development, utilization or conservation of the

57. Cf. Water Code 100, 101. existing and prospective needs of the
riparian owners) constitute public wa-
58. Gin S. Chow v. City of Santa Bar- ters of the State which are subject to
bara (1933) 22 P.2d 5, 217 C. 673. appropriation.
59. (1935) 40 P.2d 486, 2 C.2d 351. In 60. Tulare Irr. Dist. v. Lindsay-Strath-
Meridian, Ltd. v. City and County of more Irr. Dist. (1935) 45 P.2d 972, 3
San Francisco (1939) 90 P.2d 537, 91 C.2d 489.
P.2d 105, 13 C.2d 424, the court held
that the surplus waters of a stream 61. Stats.1956, 1st Ex.Sess., c. 52; Wa-
(all water in excess of that required ter Code 153.
to satisfy existing appropriators and
LXXVI





CALIFORNIA WATER LAW IN PERSPECTIVE

water resources of the State." O6 The applications so filed were ex-
empt from the requirements of law relating to diligence in the com-
pletion of the application or the use of the water.63
Provision was made for the release or assignment of applications
not in conflict with the general or coordinated plan 64 subject to the
s3-called county-of-origin limitation that no such release or assign-
mnent should be made which, in the judgment of the Department of
Finance, would "deprive the county in which the appropriated water
originates of any such water necessary for the development of the '
county." Similar limitations were imposed by statute as to so-
cald areas-of-origin in connection with the construction and opera-
tion of the Central Valley Project.60 The interpretation and appli-
cation of these county-of-origin and area-of-origin limitations has
become one of the most difficult and perplexing problems to con-
front the State in the development of its water resources.07
The Division of Water Resources in 1930 issued its Bulletin No.
25, later adopted by statute as the State Water Plan." which pro-
posed the major units for the ultimate development of California's
water resources in the principal areas of the State. The State Water
Plan recognized the development of the population centers in areas* '
far removed from the water supply by recommending, for initial
cevelopment, the supplying of water deficient areas in Southern Cali- ''
fornia from the Colorado River and the supplying of water deficient
areas in the San Joaquin Valley from surplus waters of the Sacra- '.
rrmnto Valley.
To effect the transportation of water from the Colorado River
to water deficient areas in Southern California, the plan proposed
the construction of an aqueduct extending from the Colorado River
to Los Angeles County. Such an aqueduct has since been constructed ,:
by the Metropolitan Water District of Southern California, a State
agency.69 ;
To effect the transfer of surplus water from the Sacramento Val- :
ley to the water deficient areas in the San Joaquin Valley, the plan
envisioned the construction of the Shasta (originally Kennett) Dam to
store and regulate the water of the Sacramento River system. Sur-

6. Stats.1927, c. 286; Water Code 67. "The 'County of Origin' and 'Wa-
105t-10500. tcrshed Protection' Statutes" (1900),
12 Stan.L.R. 450.
63. Water Code 10500.
68. Stats.1941, c. 1185; Water Code
C4. Water Code 10504. 10000.
S6. Water Code 10505. 69. Stats.1927, c. 429.
&5. Water Code 11400-11463.


LXXVII


63 Cal.Code--f






CALIFORNIA WATER LAW IN PERSPECTIVE

plus waters of the Sacramento River system were to be transferred to
the San Joaquin River in lieu of water which would otherwise be
available from the San Joaquin River and which, under the plan,
would be diverted at Friant Dam, north to the center of Madera Coun-
ty and south to the vicinity of Bakersfield. Known as the Central
Valley Project, the plan for the transfer of water from the Sacra-
mento River system to the San Joaquin Valley as proposed by the
State Water Plan, was authorized by the Legislature in 1933 for con-
struction by the Water Project Authority.70 This body was composed
of the Attorney General, the State Controller, the State Treasurer,
the Director of Finance, and the Director of Public Works, the latter
officer being the chairman. Its executive officer was the State En-
gineer.71
As originally authorized the Central Valley Project consisted of
units known as Shasta (originally Kennett) Dam, Contra Costa Con-
duit, San Joaquin Pumping System, Friant Dam, Madera Canal,
Friant-Kern Canal, and such other units as the Authority might sub-
sequently add to those specifically authorized by statute.72 Subse-
quently the Legislature authorized the Tehama-Colusa and Tehama-
Butte Conduits,73 the Feather River and Sacramento-San Joaquin
Delta Diversion Projects,74 the American River Development,75 North
Bay Aqueduct,76 New Hogan Dam and Reservoir,77 and Black Butte
Dam and Reservoir.78 While at first the Authority was authorized to
issue revenue bonds not in excess of 170 million dollars to finance the
project,79 that limitation was later removed.80
Because of the unfavorable financial situation in the mid-thirties,
the State did not undertake construction of the Central Valley Proj-
ect. Instead, initial units of the project were authorized by Congress
for construction by the Bureau of Reclamation.81 Later, the Tehama-
Colusa and Tehama-Butte Conduits and the American River Develop-
ment as well as other units were added to the Federal Central Valley

70. Stats.1933, c. 1042, the Central Val- 76. Stats.1957, c. 2252; Water Code
lcy Project Act of 1933. 11270-11271.
71. Ibid., 5. 77. Stats.1959, c. 1750; Water Code
11252-11254.
72. Ibid., 4; Water Code 11200-
11237, 11290. 78. Stats.1959, c. 1774; Water Code
11276.
73. Stats.1941, c. 701; Water Code
11240-11251. 79. Stats.1933, c. 1042.
74. Stats.1951, c. 1441; Water Code 80. Stats.1951, c. 1441.
11260.
81. 50 U.S.Stat. 844, 850.
75. Stats.1957, c. 1121; Water Code
11205.
LXXVIII






CALIFORNIA WATER LAW IN PERSPECTIVE

Project. New Hogan and Black Butte were also constructed by the
United States but not as part of the Project.
The Feather River and Sacramento-San Joaquin Delta Diversion
Projects and the North Bay Aqueduct are units of the State Water
Project 8s now under construction by the State Department of Water
Resources.83

As a part of the reorganization of 1956, the Water Project Au-
thority was abolished and its duties and powers were transferred to
the Department of Water Resources."8

Although construction of the Central Valley Project was com-
menced and the major units were completed and placed in operation
by the U. S. Bureau of Reclamation before permits to appropriate
project water had been issued by the State, the Bureau had either
filed applications for permits or had obtained assignments of state-
filed applications."5 The State raised no objection to the Bureau pro-
ceeding with construction and operation of the project in advance of
receiving permits and in fact repeatedly urged Congress to appro- L
private funds for such purposes."8 It was not until 1958, 14 years after
project operation had commenced, that the first permits were issued
to the Bureau for a unit of the Central Valley Project (Folsom on
the American River).87 Permits for other project units were issued
subsequently."8 It is now the policy of the Bureau to seek permits
for additional project units as they are authorized by Congress in ;
advance of actual construction.

The State's practice is to place the same or similar conditions in
permits issued to federal agencies as in permits issued to other en-
tities. These conditions are designed for a variety of purposes in-
cluding protection of prior water rights, preservation of fish and
wildlife, recognition and protection of future uses of water in the
counties and watersheds of origin in accordance with state law, and
to insure that other state policies applicable to particular situations
will be observed. Although the Bureau of Reclamation has consist-
ently and explicitly refused to concede the jurisdiction of the State

82. Stats.1959, c. 1762; Water Code 86. Central Valley Project Doctumints,
12934. 1956, U.S. Gov. Printing Office, Vol.
2, pp. 30, 38, 47.
83. See n. 93.
87. State Water Rights Board decision
84. Stats.1956, 1st Ex.Sess., c. 52; Wa- ) 893 in the matter of Applicntions
ter Code 123. 12140 etc.
88. State Water Rights Board decisions
85. State Water Rights Board deci- Nos. D 935, D 990, D 1020, D 1100,
sion D 990 in the matter of Applica- D 1250; State Water Resources Con-
tions 5625 etc., U.S. Bureau of Recla- trol Board decisions Nos. 1308, 1310,
nation. 1350, 1361.
LXXIX





CALIFORNIA WATER LAW IN PERSPECTIVE


to impose such conditions in permits issued to the United States,89
the permits have been accepted and an excellent record of cooperation
has ensued.
In the late 1940s the State commenced further studies looking to-
wards a long range plan for comprehensive development of its water
resources. The result was the California Water Plan0o which was
presented to the Legislature in 1957 and was accepted by that body in
1959 "as the guide for the orderly and coordinated control, protec-
tion, conservation, development, and utilization of the water resources
of the State." 91 Previously, in 1951, the Legislature had authorized
a unit of the plan, the Feather River and Sacramento-San Joaquin
Delta Diversion Projects, which included a major storage reservoir
on the Feather River near Oroville for flood control, generation of
power and conservation of water, diversion and pumping facilities in
the Sacramento-San Joaquin Delta and an aqueduct system to con-
vey water to various parts of Central and Southern California.92
These projects formed the principal parts of the State Water Re-
sources Development System, commonly called the State Water Proj-
ect, which was adopted by the Legislature in 1959.93 At the same
time the Legislature approved a $1,750,000,000 bond issue for con-
struction of the system."9 The bonds were approved by vote of the
people in 1960. At the present time (1970) the Oroville Dam and
Reservoir on the Feather River have been completed as have seven of
eleven units of the Delta Pumping Plant, the joint State-Federal
San Luis Reservoir and related facilities, the South Bay Aqueduct
and three of five reservoirs in the upper Feather River watershed.
Work is underway on the California Aqueduct which will convey
water to Southern California a distance of more than 400 miles
from the starting point in the delta.9" Water rights for this project
were issued to the Department of Water Resources in 1967.96
Because both the federal Central Valley Project and State Water
Project use portions of the Sacramento River and the delta channels
as conduits for both natural flow and water stored in upstream reser-
voirs, resulting in an intermingling of federal and state waters, a
joint operating agreement is necessary. In 1960 the U. S. Bureau of

89. Brief of the United States in the 93. Stats.1959, c. 1762; Water Code
matter of Applications 5625 etc., State Ch. 8, Pt. 6, Div. 6.
Water Resources Control Board (for-
merly State Water Rights Board). 94. Ibid.
90. Cal Dept. of Water Resources, Bul- 95. Cal. Dept. of Water Resources, Bul.
letin No. 3 (May 1957). letin No. 132-70, "The California State
Water Project in 1070" (June 1970).
91. Stats.1959, c. 2053; Water Code
10004-10007. 96. State Water Rights Board decisions
Nos. 1275 and 1291.
92. See n. 74.
LXXX





CALIFORNIA WATER LAW IN PERSPECTIVE

Reclamation and the State Department of Water Resources entered
into a preliminary agreement for the coordinated operation of the
two projects which provided for a sharing of water in the delta in
times of shortage and for a further agreement concerning operational
criteria and plans.97 Negotiations for such further agreement are
continuing.
Use of the delta by both federal and state projects as a place to col-
lect and export water to other areas of the State has led to major
problems relating to the obligations of both projects to protect the
delta from any damage caused by the intrusion of salt water from the
San Francisco Bay and other possible deleterious eficts of artificially
controlling outflow of fresh water through the numerous delta chan-
nels to the bay. When water right permits were issued by the State
to the Bureau of Reclamation and the Department of Water Resourc-
es jurisdiction was expressly reserved to impose additional conditions
in the permits for the protection of the delta.98 In the summer of
1969 the State Water Resources Control Board commenced hearings
to determine what conditions should be imposed. A year later these
hearings are still continuing although it is generally conceded that
final terms cannot be formulated until the projects are in full opera-
tion so that their effects upon water conditions in the delta can be
accurately determined. In the meantime it is anticipated that interim
measures will be adopted.
Despite the efforts of State, federal and-local agencies to provide an *
adequate supply of water, California's growth has exceeded the de- .
development of its water resources. As a result, in many areas during
the past few decades water users have been compelled to draw in-
creasingly from ground water supplies to such an extent that their
ground water basins are threatened by destruction through the sub-
sidence of the land or by intrusion of salt water. This problem has
been reflected both in case and statutory law.
In a landmark decision,99 the Supreme Court of California held that
where there was a continued overdraft of a ground water basin for
the five-year prescriptive period, the rights of all users had become
equal whether based on appropriation or ownership of overlying lands.
It ruled that the trial court had properly concluded that the produc-
tion of water, under such circumstances, should be limited to safe

97. Agreement dated May 16, 1960, en- 1275 and 1291 in the matter of Appli-
tered as DWR Exhibit 77 in matter of cations 5629 etc.
Applications 5625 etc., State Water
Lights Board decision No. D 990. 99. City of Pasadena v. City of Alham-
bra (1949) 207 P.2d 17, 33 C.2d 908,
98. State Water Rights Board decision certiorari denied 70 S.Ct. 671, 339 U.S.
No. D 990 in the matter of Applica- 937, 94 L.Ed. 1354.
tions 5625 etc., and decisions Nos.
LXXXI





CALIFORNIA WATER LAW IN PERSPECTIVE


yield of the basin by a proportionate reduction in the amount that
each party had taken for the statutory period.
The effect of the decision was to eliminate, under certain circum-
stances where there is a continued overdraft for the statutory period,
the doctrine of priority of rights of the appropriator and the doctrine
of correlative rights of the overlying landowners. Hence, the decision
might well have the indirect but practical effect of increasing the
pumping from overdrawn basins by making it necessary for the users
to continue, and possibly increase, their pumping in order to protect
their rights.
The possibility of the decision resulting in increased pumping with-
in the boundaries of the counties of Santa Barbara, Ventura, Los
Angeles, Orange, San Diego, Imperial, Riverside, and San Bernardino
was somewhat lessened by legislation in 1951 to permit the owner of
the right to extract ground water to maintain his right when he uses
water from an alternate nontributary source,'10 such legislation read-
ing in part:
"1005.1. Cessation of or reduction in the extraction of
ground water by the owner of a right to extract, as the result
of the use of an alternate supply of water from a nontribu-
tary source, shall be and is deemed equivalent to, and for
purposes of establishing and maintaining any right to extract
the ground water shall be construed to constitute, a rea-
sonable beneficial use of the ground water to the extent and
in the amount that water from the alternate source is applied
to reasonable beneficial use, not exceeding, however, the
amount of such reduction. *
"1005.2. Cessation of or reduction in the extraction of
ground water, to permit the replenishment of such ground
water by the use of water from an alternate nontributary
source, is hereby declared to be a reasonable beneficial use
of the ground water to the extent and in the amount that
water from such alternate source is applied to beneficial use,
not exceeding, however, the amount of such reduction. No
lapse, reduction or loss of any right in ground water, shall
occur under such conditions. *"
The scope of the two sections was extended in 1955 when they were
amended to define water from an alternate "nontributary source" as
including not only water imported from another watershed, but also
water conserved within the watershed by a conservation plan or works
without which the water would have wasted or not reached the under-
ground water supply of the owner relying on these sections.101

100. Stats.1951, c. 1361; Water Code 101. Stats.1955, c. 1887.
1005.1, 1005.2.
LXXXII


I




CALIFORNIA WATER LAW IN PERSPECTIVE


The 1955 Legislature also enacted provisions requiring all water
users who extract 25 or more acre feet of ground water in any year
within the counties of Riverside. San Bernardino T.n Anolne Vor.
tura, and Santa Barbara 10o to file a "Notice of Extraction and Diver-
sion of Water" with the Division of Water Resources (now the State
-'ater Resources Control Board).103 These provisions preclude after
1956 any prescriptive right from accruing or any statute of limita-
tions from operating in favor of a person required to file a notice of
extraction and diversion until after the notice is filed, there being, if
no notice is filed, no claim of right of extraction.

The added provisions also state that beneficial use in any year is to
be deemed not to exceed the quantity reported for that year. Com-
mencing in 1960 failure to file notice in any year is equivalent to non-
use for that year. The State Water Resources Control Board is au-
thorized to investigate and determine, upon request, the facts stated
in the notices, which determination constitutes prima facie evidence
of the facts in any action.

Provision for the creation of water replenishment rditricts within
the boundaries of the counties of Santa Barbara, Ventura, Los An-
geles, San Diego, Riverside, San Bernardino, and Orange, except with-
in the Orange County Water District, was made by the 1955 Legisla-
ture.14' In 1965 the law was amended to include all areas in the
state except the Orange County Water District.105 The purpose of
such districts is to provide for the replenishment of the around water
basins. A replenishment district has powers similar to those vested
in the Orange County Water District,'10 including the power to se-
cure funds for replenishment purposes by levying an assessment based
on the production of ground water.


C. RECENT TRENDS
National attention is now focused on stopping pollution of water by
discharges of industrial and municipal wastes. California has long
been in the vanguard of states which have had relatively strong anti-
pollution laws. The Dickey Water Pollution Act of 1949 107 estab-
lished a control system administered by nine regional boards coordi-
nated by a state board. In 1967 the legislature combined the State
Water Rights Board and the State Water Quality Control Board into

102. In 1099 the County of Santa Bar- 105. Stats.1905, c. 3S9; Water Code
bara was deleted. Stats.1959, e. 526. 004-7.
103. Stats.1955, c. 1869; Water Code 106. Stats.1933, c. 924.
4999-5008.
107. Stats.1949, c. 1549.
104. Stats.1955, c. 1514; Water Code,
Div. 18.
LXXXIII


iT





CALIFORNIA WATER LAW IN PERSPECTIVE


one body called the State Water Resources Control Board.108 The
purpose was to strengthen the state board structure and to combine
the two functions of state government so that the quality of affected
waters would be considered whenever new water appropriations were
authorized. In 1969 a tough new law called the Porter-Cologne
Water Quality Control Act was enacted.109 It retained the nine re-
gional boards but increased the authority of the state board to estab-
lish guidelines for the regional boards to follow and of the state board
to review regional board actions and to itself take appropriate action
to prevent pollution or nuisance associated with treatment or disposal
of wastes.110 Enforcement procedures were strengthened both at the
administrative level and in court. Now, a simple violation of waste
discharge requirements or order prohibiting waste discharges is in
itself sufficient for issuance of a cease and desist order and, if further
violations occur, court action without the need to prove that the dis-
charge is causing pollution as was formerly required.11' This is im-
portant in a situation where a number of separate discharges contrib-
ute to polluted waters and it is difficult to prove that any one is
causing the problem. Additional connections to a community sewer
-:,am-en.'vhir 'n,. a:x:n.', i mn. upaha ir'd mtntir ts a': n ar n." hibited w'Vhen
necessary to prevent further unreasonable impairment of water
quality.112 Fines of up to $6000 per day may be imposed by a court
upon violators.113

The 1969 law also improved procedures for taking into account the
quality of water when new applications for water rights are being
considered.114 Under certain circumstances the state board may file
a court action to restrict pumping of ground water or impose a physi-
cal solution, or both, to prevent destruction or irreparable injury to
the quality of such water.115
In 1970 the Legislature refused passage of bills which would have
imposed annual fees on water right permits and licenses and which
would. have reduced the priority of riparian and pre-permit system
appropriative rights if the owners failed to register them with the
state board.116 Apparently, unlike many other -states, California is
still unwilling to transgress upon the sanctity of riparian rights
whether or not they have ever been used.

108. Stats.1967, c. 284; Water Code, 112. Water Code 13301.
Art. 3, Ch. 2, Div. 1.
113. Water Code 13350.
109. Stats.1969, c. 482; Water Code,
Div. 7. 114. Water Code 1243.5, 1257, 1258.
110. Water Code 13140-13147, 13104, 115. Water Code 2100-2102.
13320.
116. Assembly bills Nos. 992, 1297.
III. Water Code 9 13301, 13331.
LXXXIV





CALIFORNIA WATER LAW IN PERSPECTIVE


III. STATE GOVERNMENT AGENCIES

A. DEPARTMENT OF WATER RESOURCES

The Department of Water Resources and the State Water Resources
Control Board (described infra, commencing on page XCII) have a
common ancestor in the position of State Engineer created in 1878
to investigate the problems of irrigation, drainage and navigation of
rivers.'7 In 1889 the position of State Engineer was limited to a
further period of two years, and the State Mineralogist was to be ex
officio State Engineer."1 Then, in 1893 a Commissioner of Public
Works was created to study the problem of flood control and manage
such public works as provided by law.119 Also, in 1893 a Debris Com-
missioner was created to cooperate with the federal California Debris
Commission.'"0
In 1907 a State Department of Engineering was created consisting
of an advisory board of which a new State Engineer appointed by the
Governor was a member and also the executive officer.121 The new
department was given control of all public works, highways, reclama-
;ion and drainage of land, and similar activities. Among others, the
)property and reports of the Commissioner of Public Works and the
Debris Commissioner were transferred to the new department.
The State Water Commission, out of which grew the present powers
of the State Water Resources Control Board with respect to the ap-
propriation of water, court references in water matters, and adminis-
trative adjudications of water rights, had its origin in a Board of
Control created in 1911 and consisting of the Governor and State En-
gineer, ex officio, and three other members appointed by the Gov-
ernor.":" Its powers extended to the appropriation of water for power
purposes. The Board of Control was succeeded in 1912 by the State
Water Commission,'23 and the powers of that body were enlarged by
an act passed in 1913 and effective late the following year, but the
composition of its membership remained the same as the original
Board of Control.'24

In 1915 provision was made for a Carey Act Commission to investi-
gate, select, reclaim, control, and dispose of all lands granted the

117. Stats.1877-78, c. 429. 122. Stats.1911, c. 406.
i1S. Stats.1889, c. 218. 123. Stats.1911, Ex.Scss., c. 41.
119. Stats.1893, c. 232. 124. Stats.1913, c. 586, approved on ref-
erendum Nov. 3, 1914.
120. Stats.1893, c. 228.
121. Stats.1907, c. 183.
LXXXV






CALIFORNIA WATER LAW IN PERSPECTIVE


State under the federal Carey Act,'25 the State Engineer being a mem-
ber of the Commission.126
In 1921 the Department of Public Works was created, including in
its original five divisions a Division of Engineering and Irrigation and
a Division of Water Rights.127 Among others, the Department suc-
ceeded to the powers and duties of the State Carey Act Commission,
the State Engineer, the State Water Commission, and the Department
of Engineering. As a practical matter the Division of Engineering
and Irrigation was a continuation of the Department of Engineer-
ing,'28 the Chief of the Division being designated the State Engi-
neer,129 the latter also being the Director of Public Works between
1923 and 1927,130 and the Division of Water Rights continued the ac-
tivities of the State Water Commission.'31
These two divisions were combined in 1929 into the Division of
Water Resources headed by the State Engineer who was a civil
servant appointed by the Director of Public Works.132 In 1956 the
office of State Engineer and the Division of Water Resources were
abolished and their functions were divided between two newly created
agencies, the State Water Rights Board and the Department of Water
Resources.133 The former succeeded to all powers of the State
Engineer and Division of Water Resources concerning water rights
except water master service which went to the department.'13 The
department also succeeded to all other functions of the State Engineer
and Division of Water Resources, the Water Project Authority, the
Department of Finance with respect to filing certain applications for
water, and some powers of the State Water Resources Board (now
the California Water Commission described infra, page XCVI).'35
The department is under the control of a director who is appointed
by the Governor subject to confirmation by the Senate.136 The de-
partment employs its own legal counsel.137
Perhaps the most important and certainly the most widely known
of the department's duties are the planning, construction and opera-
tion of the State Water Project which is officially known as the State

125. 28 U.S.Stat. at L. 422; 43 U.S. 131. "California State Government",
C.A. 641. Hurt, Vol. 1, p. 230.
126. Stats.1915, c. 613. 132. Stats.1929, c. 373.
127. Stats.1921, c. 607. 133. Stats.1950, 1st Ex.Sess., c. 52.
128. "California State Government", 134. Ibid., Water Code 123, 370.
Hurt, Vol. 1, p. 230.
135. Ibid.
129. Stats.1921, c. 607.
136. Water Code 120.
130. Stats.1923, c. 286; Stats.1927, c.
252. 137. Water Code 127.
LXXXVI





CALIFORNIA WATER LAW IN PERSPECTIVE

Water Resources Development System and which includes the "State
Water Facilities" whose purpose, among others, is to conserve sur-
plus water in the North and transport it to areas of deficiency in the
central and southern parts of the State 138 at an ultimate cost now
estimated to exceed $3 billion.139 Some of the history and attributes
of this gigantic undertaking are described supra, commencing on
page LXXX.

Other powers of the department include:
(1) General:
(a) May join, collaborate, and cooperate with associations of repre-
sentatives of other states for the purpose of promoting reclamation
and irrigation.140
(b) May make topographical surveys and investigations relative
to the water resources of the State.141
I-.
(c) May supervise the distribution of water in accordance with
agreements and court orders therefore'4 2
(d) May investigate and report on any natural situation available '
for reservoirs and reservoir systems.143
(e) Must gather data pertinent to annual forecast of the seasonal
water crop.144
(f) Must take all appropriate proceedings and actions to prevent
waste, unreasonable method of use or unreasonable diversion of water
in the State.145
(g) Must regulate persons engaged in artificial rainmaking and
artificial rain prevention.146
(h) Must investigate the quality of all waters in the State, recla-
mation of water from sewage and industrial wastes, and damage to
the quality of underground waters caused by improperly constructed,
abandoned, or defective wells.'47

138. Water Code 12931. 143. Water Code 227.
139. Cal. Dept. of Water Resources, 144. Water Code 228.
BIulletin 132-70, "The California State
Water Plan in 1970" (June 1970), pp. 145. Water Code 275; sec Const. art.
,53-57. 14, 3.
140. Water Code 205. 146. Water Code 400-415.
141. Water Code 225. 147. Water Code 229-231.

142. Water Code 226.
LXXXVII






CALIFORNIA WATER LAW IN PERSPECTIVE

(i) Must prepare reports for the Legislature, after conducting in-
vestigations and hearings, of boundaries of respective watersheds of
the State and quantities of water originating therein, of quantities
of water reasonably required for ultimate beneficial use therein, of
quantities of water, if any, available for export therefrom, and of the
areas which can be served by the water so available for export.'14
(j) Represent the State for the purpose of administering any in-
terstate compact relating to distribution and use of waters of any
interstate streams or bodies of water.'49
(k) Investigate, excavate and preserve any historic or pre-historic
ruin or monument in areas to be used for state water development
purposes.'"5
(1) Receive reports concerning water well construction, altera-
tion and abandonment.151
(2) Water Master Service Areas: Must establish and administer
water master service areas.'52
(3) Dams: Must regulate and supervise dams and reservoirs, in-
cluding construction, repair, operation, and maintenance thereof.'53
(4) Flood Control:
(a) May examine lands subject to inundation and overflow by
flood waters and make plans and estimates of the cost of works to
regulate and control the flood waters.'15
(b) Must manage and control the floods of any river, slough, or
tide water flowing into the San Francisco Bay, San Pablo Bay, and
Suisun Bay where no other agency is charged with the work.155
(c) Makes expenditures, unless otherwise provided by law, for all
public works relating to general river and harbor improvements, in-
cluding reclamation and drainage of land.'56
(d) Exercises supervisory powers over the maintenance and oper-
ation of Sacramento River Flood Control Project.'57
(e) Maintains and operates specified units or portions of Sacra-
mento River Flood Control Project.'58

148. Stats.n956, 1st Ex.Sess., c. 61; 154. Water Code 8300.
Water Code 232.
155. Water Code 8301.
149. Water Code 123.
156. Water Code 8302.
150. Water Code 234.
157. Water Code 8360.
151. Water Code 13750, 13751.
158. Water Code 8361.
152. Water Code 4000-4407.
153. Water Code 6000-6501.
LXXXVIII






CALIFORNIA WATER LAW IN PERSPECTIVE

(f) May contribute funds to the United States and expend funds
to provide all lands, easements, and rights of way incident to State
contribution of one-third of the cost of construction of bank revet-
:c.ents and levees in the Sacramento River Flood Control Project.'5"
(g) Cooperates with the Federal Government and local agencies in
flood plain zoning as required by the Federal Flood Insurance Act of
It ';S.1G0
(h) Notifies the State Reclamation Board of any unit of a project
under the board's jurisdiction which is not maintained or operated
in accordance with federal regulations when said unit is supposed to
t1 so maintained and operated. The board or department are au-
thorized to form a maintenance area to include lands benefited by the
,:-ojcct, after which the board or department operates and maintains
h!e unit and assesses the lands for costs thereof.1'0
(i) The department or Reclamation Board (if area is under board's
jurisdiction) reviews flood plain management plans of local agencies
and makes necessary hydrologic studies and investigations; approves
flood plain regulations of local agencies.'62
(j) In times of emergency resulting from storms and floods, per- t
forms required work and takes remedial measures.'63
(5) Water Development Projects:
In 1956 the department took over from the former State Water Re-
sources Board all of that agency's jurisdiction concerning water devel-
c.pment projects.'"
The federal Flood Control Act of 1944 provided that future plans
relating to flood control made by the Chief of Engineers, War Depart-
ment, and relating to irrigation and purposes incidental thereto made
by the Secretary of the Interior be made in such manner as to give
an affected state during the course of the investigations information
developed by the investigations and also opportunity for consultation
regarding plans and proposals.105 The federal law provided that the
:, nations of the Chief of Engineers and the Secretary of the Interior be
with the Governor of the State or such official or agency of the State
as the Governor may designate.1'0 The federal law also adopted cer-
tain plans and projects within California.'67

159. Water Code 8362. 164. Stats.1956, 1st Ex.Sess., c. 52.
160. Water Code 8325-8326. 165. 58 U.S.Stat. at L. 887.
t16. Water Code 12878-12878.45. 166. Ibid.
!;2. Water Code 8400-8411. 167. Ibid.
!63. Water Code 128.
TXXXIX





CALIFORNIA WATER LAW IN PERSPECTIVE


The State Water Resources Act of 1945 '1 is so modeled as to com-
plement the federal legislation. Basically, it is the function of the
department to conduct investigations of the water resources of the
State, formulate plans for the control, conservation, protection and
utilization of such water resources, including solutions for the water
problems of each portion of the State as deemed expedient and eco-
nomically feasible.169 The department is also authorized to represent
the interests of the State or any county, city, State agency or public
district as to any matter involving the United States within the scope
of the powers and duties of the department.170
The department and its predecessor, the State Water Resources
Board, have issued a number of reports on local water development
projects which are published in the form of numbered bulletins. In
addition, Bulletin No. 1 (1951) and No. 2 (1955) of the board contain
an inventory of the water resources of California, a description of the
then existing uses of water, and the probable ultimate water require-
ments of the State. Bulletin No. 3 of the department (1957), is en-
titled The California Water Plan and supplements the first two bulle-
tins by describing in broad outline how water in the various regions
of the State might be conserved and developed for beneficial use. In
all, the plan lists for possible development 376 dams and reservoirs,
plus related facilities, on various rivers and streams throughout the
State.7'
In the State Water Resources Act of 1945 17 there were adopted
and authorized on behalf of the State certain plans and projects pre-
viously adopted by Congress in the federal Flood Control Act of 1944,'73
and the State Legislation declared the intention of the Legislature to
pay for the cost of lands, easements, and rights of way necessary for
the construction of flood control projects required by the federal act
of August 18, 1941,'7" and by the federal Flood Control Act of 1944 15
and for future flood control projects approved by Congress when such
projects were recommended by the State Water Resources Board and
approved by the Legislature.'7o In addition to the projects approved
by the Legislature in the 1945 act, other projects have been subse-
quently approved.'77

168. Stats.1945, c. 1514, Water Code 172. Stats.1945, c. 1514.
12570-12751.
173. 58 U.S.Stat. at L. 887.
169. Water Code 9 12616.
174. 55 U.S.Stat. at L. 638.
170. Water Code 12604.
175. 58 U.S.Stat. at L. 887.
171. See n. 90 and 91. Johnson Rancho 176. Stats.1945, c. 1514, Sec. 18; see
County Water District v. State Wa- Water Code 12584, 12585.
ter Itights Board, (1965), 45 Cal.Reptr.
589, 255 C.A.2d 863, discusses the 177. For example, Water Code 12694,
legal significance of the plan. 12698, 12701.
XC





As a means of providing funds for the State's participation as pledg-
t; in the 1945 act, the Legislature adopted the Flood Control Law of
1. ;6.1* The amended act provides that funds are to be allocated to
:he department for reallocation to the agencies cooperating with the
United States for certain projects approved in the 1945 act.179
Under a 1955 enactment the State Water Resources Board (now the
department) is specifically given the power to make recommendations
for appropriations, and to allocate the money appropriated, for State
cooperation 180 in connection with soil conservation pilot plant or ex-
perimental projects 11 and small water projects under the federal
Watershed Protection and Flood Prevention Act.182 State cooperation
is limited to the costs of lands, easements, and rights of way,183 and
conditions are laid down for fulfillment prior to the payment of the
State's share to the county, city, State agency, or public district under-
:aking the project with the federal government.184
(6) State Financial Assistance for Local Projects: In 1957 the
Legislature enacted the Davis-Grunsky Act providing for grants and
'cans by the State to public agencies for construction of water projects
to meet local requirements in which there is a statewide interest.'8s 1 "
Grants within certain limits may be made for the portion of project
costs allocated to enhancement of fish and wildlife and recreational
functions.'86 Other costs, including feasibility reports and acquisi-
tion of lands, may be the subject of loans within specified limits.187 If,
in order to accomplish the objective of the law, it is necessary to con-
struct a larger project than the public agency proposes to construct, -
the State may participate in planning, designing, constructing, operat-
ir. and maintaining the project.'88 The program is administered by
the department, but all grants and loans require approval of the
California Water Commission.s89
(7) Public Districts:
(a) Reports to board of supervisors considering the formation pro-
cedings for an irrigation district as to the feasibility of the district
projects.'0o

;,78 Stats.1946, 1st Ex. Sess., c. 142; 184. Water Code 12870-12874.
'\Vater Code H 12800-12830.
185. Stats.1957, c. 2052; Water Code
a ,. Water Code 12829. 12880-12893.
1S. Stats.1955, c. 1886; Water Code 186. Water Code 12884-12884.2.
qi 1)-.50-12875.
187. Water Code 12885-128S5.8.
4ti. 49 U.S.Stat. at L. 163; 67 U.S.
-'art. at L. 206. 188. Water Code 12880.
l2. GS U.S.Stat. at L. 666. 189. Water Code 12891.4.
i. Water Code 12866. 190. Water Code 5 20822, 20823.
XCI


CALIFORNIA WATER LAW IN PERSPECTIVE


I






CALIFORNIA WATER LAW IN PERSPECTIVE


(b) Supervises the construction of any works of an irrigation dis-
trict paid out of the proceeds of any bond issue.191
(c) Administers, supervises and approves establishment, organiza-
tion and activities of water storage districts.192

B. THE STATE WATER RESOURCES CONTROL BOARD

The early history of the predecessors of the State Water Resources
Control Board is described under the heading "Department of Water
Resources" supra, page LXXXV. The board was created in 1967 as a
combination of the former State Water Rights Board and the State Wa-
ter Quality Control Board.193 It is in the Resources Agency which in-
cludes other boards and departments of state government in the
natural resources field.'" The agency is headed by a secretary who
is appointed by and is directly responsible to the Governor.195 The
board is composed of five members who are appointed by the Governor
for four year terms.'96 It is divided into two statutory divisions, water
rights and water quality, and such other divisions as may be created
administratively.197 The board employs its own legal counsel.198
Powers vested in the State Water Resources Control Board include:
(1) General:
(a) May investigate all streams, stream systems, portions of stream
systems, lakes, or other bodies of water.199
(b) May take testimony in regard to the rights to water or the use
of water.-0
(c) May ascertain whether or not water filed upon or attempted to
be appropriated is appropriated under the laws of the State.201
(d) May, in furtherance of its other powers and duties, supervise
trial distribution of water in accordance with agreements and court
orders therefor.20o

(2) Appropriation of water:
(a) Issues permits for the appropriation of water 203 upon such
terms as in its judgment will best develop, conserve and utilize in the

191. Water Code 22335-22338. 198. Ibid.
192. Water Code 39000-48401. 199. Water Code 1051(a).
193. Stats.1967, c. 284.
200. Water Code 1051(b).
194. Gov.Code, 12801.
201. Water Code 1051(c).
195. Gov.Code, 12850. 20. Water Code 1051(
196. Water Code 175. 202. Water Code 1051.5.
197. Water Code 186. 203. Water Code, Part 2, Div. 2.
XCII





CALIFORNIA WATER LAW IN PERSPECTIVE

public interest the water sought to be appropriated 20 and such terms
as it finds are necessary to carry out water quality control plans es- :.
:ablished by law.205
(b) After full development under permits, issues licenses confirm-
ing rights to appropriate the water which it finds has been placed to
beneficial use in accordance with law and the permits.200
(3) Determination of Water Rights:
(a) Determines all rights to the water of a stream system upon -.
petitionn therefore by one or more claimants, if it finds such determina-
tion to be in the public interest, subject to court hearing and independ-
ent determination upon exceptions to Board's order by any party.207
(b) Acts as referee when appointed by a court in a suit for deter-
mination of rights to water.208
(4) Records annual statements of ground water extractions in fouy
southern California counties,209 triennial statements of diversion and
use of water from surface sources and underground streams through- oL'
out the State by persons who have not filed applications for permits,210
and annual statements under a law providing for retention of ground
water rights notwithstanding non-use of water when water from an
-lternate non-tributary source is used, applicable only in eight south-
ern California counties.21'
(5) Water Quality Control: i "'
Under the present law, contamination of water by wastes continues ;.. -
to be the responsibility of the Department of Public Health 212 while
pollution and nuisance come under the jurisdiction of the State Water '
Resources Control Board and the regional water quality control
boards.213 ,. .
"Contamination" is defined as an impairment of the quality of the
u-aters of the State by waste to a degree which creates a hazard to the
public health through poisoning or through the spread of disease. It ..
includes any equivalent effect resulting from the disposal of waste,
w whether or not waters of the State are affected.214

:0s. Water Code 1253. 210. Water Code 5100-5108. ..
3. Water Code 1258. 211. Water Code 1005.1, 1005.2.
:M. Water Code 1000-1077. 212. Health and Safety Code 5410-
5403. -
W:7. Water Code 2500-2900.
213. Water Code Div. 7.
:N:. Water Code 2000-2076.
214. Water Code 13050(k); Health
:I. Water Code g 4999-5008. and Safety Code 5410(d).


XCIII


tS Cal.Code-g





CALIFORNIA WATER LAW IN PERSPECTIVE


"Pollution" means an alteration of the quality of the waters of the
State by waste to a degree which unreasonably affects (1) such waters
for beneficial uses or (2) facilities which serve such beneficial uses.
"Pollution" may include contamination.215

"Nuisance" is defined as anything which (1) is injurious to health
or is indecent or offensive to the senses or an obstruction to the free
use of property, so as to interfere with the comfortable enjoyment of
life or property, and (2) affects at the same time an entire community
or neighborhood, or any considerable number of persons, although the
extent of the annoyance or damage inflicted upon individuals may be
unequal, and (3) occurs during or as a result of the treatment or dis-
posal of wastes.216
"Waste" includes sewage and any and all other waste substances,
liquid, solid, gaseous or radioactive, associated with human habitation
or of human or animal origin, or from any producing, manufacturing
or processing operation of whatever nature.2"

The State Water Resources Control Board:
(a) Formulates and adopts state policy for water quality control,
including principles and guidelines for long range resource planning,
water quality objectives at key locations for planning and operation of
water resource development projects and for water quality control
activities.218
(b) Administers statewide programs of research in technical
phrases of water quality control and may require any state or local
agency to investigate and report thereon.219
(c) Coordinates water quality related investigations of state agen-
cies and evaluates need for such investigations.220
(d) Regulates the testing, licensing and use of substances used for
cleaning up oil in state waters.22
(e) Allocates money to the regional boards for their administrative
expenses.222
(f) Upon petition or its own motion, reviews actions or failure to
act of regional boards and in that connection may exercise powers of
the regional boards with respect to issuance of waste discharge re-

215. Water Code 13050(1), Health and 218. Water Code 13140-13142.
Safety Code 5410(e).
219. Water Code 13162.
216. Water Code 13050(m), Health and 220. Water Code 13163.
Safety Code 5410(f).
221. Water Code 13169.
217. Water Code 13050(d), Health and
Safety Code 5410(a). 222. Water Code 13168.
XCIV


__





CALIFORNIA WATER LAW IN PERSPECTIVE

quirements, cease and desist orders and associated actions, water well
standards, and waste discharges from houseboats."3
(g) Is the state water pollution control agency for all purposes
stated in the Federal Water Pollution Control Act and any other fed-
eral act.224
(h) Reviews and approves applications for federal grants and cer-
:ifies priority of projects for grants under federal law.225
(i) Represents the state and local agencies in administering any
s:ate or federal funds for waste treatment plant operator training.226
(j) Administers state loans to local agencies for construction of
facilities to collect, treat and export wastes when necessary to prevent
water pollution and to reclaim waste water.227

C. REGIONAL WATER QUALITY CONTROL BOARDS

The State is divided into nine regions.228 Each region has a water. .,,
quality control board composed of nine members appointed by the
Governor for four year terms.229 The members serve part time and
are paid only their expenses while on official business.230
Powers vested in the regional boards include: '
(a) Formulate and adopt water quality control plans for all areas in
:he regions. The plans must conform to state policies and designate
f1) beneficial uses of water to be protected, (2) water quality ob- .
.:-tives which in the board's judgment will ensure reasonable protec-
i".jn of all beneficial uses of water and prevent nuisance, and (3) a
;r.,am of implementation for achieving the objectives. Plans are
.-: effective until approved by the state board.231 -
(b) Establish requirements for individual waste discharges. Waste
di(.harges, except those discharging into a community sewer system,
..:ast file reports with the regional boards. Any material change in
,h: discharge must also be reported. Reports are also required from
a.ny citizen, domiciliary or political agency of the state discharging or
S.-'posing to discharge waste outside the State in a manner that could
rziect quality of water in the State.232 Requirements cannot specify..

:. Water Code 13320. 228. Water Code 13200.
::t. Water Code 13160. 229. Water Code 13201-13202.
W. ater Code 13000-13008. 230. Water Code 13205.
1. Water Code 13625-13031. 231. Water Code 13240-13247.
::. Water Code 13-00-13417. 232. Water Code 13260-13203.
XCV





CALIFORNIA WATER LAW IN PERSPECTIVE


the design, location, type of construction or particular manner in
which compliance may be had.233

(c) If waste discharge requirements are violated the regional boards
may issue cease and desist orders requiring compliance forthwith or
in accordance with a time schedule.234 These orders are enforcible by
court injunctions.235 The courts may impose civil penalties of not to
exceed $6000 for each day the violations continue.236 The boards may
require violators to clean up and abate the effects of waste discharges
or have the work done at the violator's expense.237 The volume, type
or concentration of waste that may be added to a community sewer
system which is in violation of requirements may be restricted or
prohibited.238
(d) In connection with investigations of the quality of any waters
in the region, may require waste dischargers to submit technical and
monitoring program reports.239
(e) Establish water reclamation requirements.240
(f) Obtain coordinated action in water quality control, including
the prevention and abatement of water pollution and nuisance, en-
courage and assist in self-policing waste disposal programs, require in-
vestigations and reports from other state agencies concerning water
quality control, request enforcement of water quality control laws,
recommend to the State Board projects for financial assistance, re-
port cases of contamination, and encourage regional planning and ac-
tion for water quality control.24
(g) Require cities and counties to regulate waste discharges from
houseboats and adopt suitable water well standards when necessary to
protect water quality. If the cities or counties fail to do so, the re-
gional boards may prescribe regulations and standards.242


D. CALIFORNIA WATER COMMISSION

Although the functions of the former State Water Resources Board
were transferred to the Department of Water Resources in 1956, the
board was continued in existence as the State Water Board.243 In 1957

233. Water Code 13360. 239. Water Code 13267.
234. Water Code 13300-13303. 240. Water Code 13520-13528.
235. Water Code 13331. 241. Water Code 13225.
236. Water Code 13350. 242. Water Code 13700-13800;
13900-13908.
237. Water Code 13304.
243. Stats.1956, 1st Ex.Sess., c. 52.
238. Water Code 13301.
XCVI


~_





CALIFORNIA WATER LAW IN PERSPECTIVE

the name was changed to the California Water Commission to dis- .
tinguish it from the State Water Rights Board.2
The Commission consists of nine members appointed by the Gov-
ernor for terms of four years.245 The members are non-salaried but
receivee their expenses and $50 for each day in which official duties
are performed.2'- The Commission confers with, advises and makes
recommendations to the Director of Water Resources with respect to
any matter under his jurisdiction,247 approves rules and regulations of
the Department of Water Resources,248 may hold hearings and conduct
investigations as necessary to carry out its powers,249 reviews and re-
ports annually to the Legislature on progress of construction and
operation of the State Water Resources Development System,250 and
holds public hearings on all additional facilities proposed to be added
to the system.251
All loans and grants made by the Department of Water Resources
to local agencies pursuant to the Davis-Grunsky Act are subject to
the Commission's approval.252

E. THE RECLAMATION BOARD r .;

The existing Reclamation Board, established in 1911,253 was pre-
cded by several State agencies charged with the control of reclama-
:ion. In 1861 a board of commissioners was created to plan for and .
undertake the reclamation of swamp and overflowed lands.254 In 1866 :
.his board was abolished and its powers transferred to the county
,oards of supervisors.255 The formation of reclamation districts hav-
ing been authorized in 1868,256 the next State agency to appear was the
eclamation Fund Commissioners in 1872 to provide for the funding
cf the indebtedness of the reclamation and levee districts of the
Sate.-'5 This board passed out of existence in 1874.2 8
The next development was the creation in 1878 of the Sacramento
River Drainage District, together with a board of commissioners for

:&. Stzts.1957, c. 1941. 252. WVater Code 12891.4.
2j. Water Code 151, 154. 253. Stats.1911, Ex.Sess., c. 25.
:t&. Water Code 157. 254. Stats.1861, c. 352.
:A-. Water Code 161. 255. Stats.1865-66, c. 570.
:L,. IDid. 256. Stats.1867-G i, c. 415.
:I?. Water Code 164. 257. Stats.1871-72, c. 570.
:'. Water Code 105. 258. Stats.1873-74, c. 413.
:!. Water Code 166.
XCVII





CALIFORNIA WATER LAW IN PERSPECTIVE

its government, in order to drain surplus waters of the Sacramento
River and from the east side of the Coast Range into Suisun Bay.59
The commissioners reported in 1879 that the project was impossible
due to lack of a comprehensive general plan.260 In 1878 there was also
established the office of State Engineer to investigate irrigation, drain-
age, and navigation of rivers.'0' And, in 1880 a Board of Drainage
Commissioners was formed to divide the State into drainage dis.
tricts,26-' but this action was declared unconstitutional in 1881.263
A second attempt to form a district for reclamation purposes came
with the creation by legislative act in 1905 of the Sacramento Drain-
age District, a Board of Drainage Commissioners, and a Board of
River Control.62" However, since the effectiveness of the act was de-
pendent upon the acceptance by the State and federal governments of
certain flood control plans, with necessary appropriations, which the
federal government failed to do, this plan also ended in failure,2 and
the act was repealed in 1911.266
Later in 1911 the flood control plan for the Sacramento River rec-
ommended by the California Debris Commission, a federal agency,267
was adopted by the Legislature, and a Reclamation Board of three
members was created to carry out the plan and to pass upon all plans
for reclamation involving the construction of levees or canals along
the Sacramento River or its tributaries.2" In 1913 the board was in-
creased to seven members, three of the members to be residents or
landowners of the portion of the San Joaquin Valley within the Sacra-
mento and San Joaquin Drainage District created by the act.269 The
membership requirement was deleted in 1913.270 For the purpose of
reporting to the Governor's Council upon matters relating to reclama.
tion projects and problems the Director of Finance was made executive
.officer of the Reclamation Board.271
As so constituted the Reclamation Board today executes the plan
for controlling the flood waters of the Sacramento and San Joaquin
:Rivers and for that purpose acts in conjunction with the California

-259. Stats.1877-78, c. 643. 266. Stats.1911, c. 8.
.260. "California State Government", 267. 27 U.S.Stat. at L. 507; 33 U.S.
Hurt, Vol. 2, p. 78. C.A. 061-685.
261. Stats.1877-78, c. 429. 268. Stats.1911, Ex.Scss., e. 25.
262. Stats.1880, c. 117. 269. Stats.1913, c. 170.
'263. People v. Parks (1881) 58 C. 624, 270. Stats.1915, c. 686.
8 P.C.L.J. 219.
271. Stats.1929, c. 336.
264. Stats.1905, c. 368.
265. "California State Government",
Hurt, Vol. 2, p. 79.
XCVIII




CALIFORNIA WATER LAW IN PERSPECTIVE


IX'bris Commission.2 7 Every plan of reclamation, flood control,
drainage, improvement, dredging or work that includes any construc-
:ion or excavation in the bed of or along or near the banks of the
sicramento or San Joaquin Rivers or their tributaries or within over-
i.>w basins thereof, must be approved by the board before construction
ii commenced.73 The board also approves the work of certain drain-
.i;e districts within its jurisdiction,274 approves plans of reclamation
tditricts in the Sacramento and San Joaquin Drainage District,275 and
approves construction of any bridge across any river, drainage chan-
.:*:1. or basin subject to its jurisdiction.270

As a part of the reorganization of State water agencies in 1956, the
Peclamation Board was placed in the new Department of Water Re-
.-jurces, but all of the board's powers and duties were continued in it
subject to a legislative direction to cooperate with the department in
:zli matters of mutual concern to the fullest extent practicable.277

F. THE STATE TREASURER

A special certification commission to pass on the bonds of irrigation
:iitricts was created in 1911.27" The law providing therefore was re-
\ ised and reenacted later in 1911 279 and again in 1913 280 to provide
fr the approval of bonds of irrigation districts as legal investments
for trust funds and other purposes and their certification by the State .
Controller. In 1921 the commission was specifically named the Cali- -
fornia Bond Certification Commission.281 '

'he Legislature in 1929 authorized the appointment by the Gov- -
rnor of the California Irrigation and Reclamation Financing and Re-
linancing Commission,282 and certain of its recommendations were in-
dluded in the California Districts Securities Commission Act 283 adopt-
t-. in 1931.284 This act was a continuation of the earlier bond certifica-
:ion act, and the new commission succeeded to the powers and duties
of the former commission,"85 but with additional responsibilities. The

:;2. Water Code 8526. 279. Stats.1911, Ex.Sess., c. 3.
:73. Water Code 8710. 280. Stats.1913, c. 306.
;:4. Stats.1919, c. 354, 5. 281. Stats.1921, c. 706.

75. iWater Code 51020-51030. 282. Stats.1929, c. 520.
2:5. Streets and Highways Code 283. Stats.1931, e. 1073.
11.3.
284. "California State Government",
S:7. Stats.1.95, 1st Ex.Sess., e. 52; Wa- Hurt, Vol. 2, p. 89.
,.r Code 8550, 8698 (formerly
'1D. 285. Water Code 20032.
::7. Stats.1911, c. 157.
XCIX


--





CALIFORNIA WATER LAW IN PERSPECTIVE


commission consisted of the Attorney General, the State Engineer, the
Superintendent of Banks, and two other members appointed by the
Governor.286
In 1969 the commission was abolished and its powers and duties
were transferred to the State Treasurer.287 His duties include:
(a) Approves upon request for certification bond issues of all ir-
rigation districts and, at their option, of all districts the primary func-
tion of which is irrigation, reclamation, drainage, development of
water for domestic use, or generation of power.288
(b) Supervises expenditures of proceeds of certified bond issues to
insure that they are used to carry out the purpose of the issue.289
(c) Negotiates at the request of a district with its bondholders.290
(d) Approves transfers and contracts to transfer property or rights
of way of water storage and conservation districts.291
(e) Approves the contract or lease for any property made by an
irrigation district where the payment thereunder exceeds one-fourth
of one per cent of the total assessed value of the land in the district.29z

G. OTHER STATE AGENCIES

Aside from the foregoing major State water agencies, there are
other agencies some of the functions of which relate to water, and
agencies with limited powers which should be mentioned to give a
complete picture:
(a) The State Board of Public Health regulates the furnishing or
supplying of water for human consumption under a permit system."93
The Department of Public Health must assure the safety and potability
of domestic water supplies.294 It regulates use of publicly owned water
supply reservoirs for recreation and fishing.295 It must prevent con-
tamination of the State's waters from wastes.296 The department also
establishes statewide reclamation criteria for use of reclaimed water.?';

286. Water Code 20016. 293. Health and Safety Code 4010-
4035.
287. Stats.1969, e. 13906.
294. Health and Safety Code 203-
288. Water Code 20002, 20040-20066. 207.
289. Water Code 20080-20087. 295. Health and Safety Code 4050-
4055, 4462-4468.
290. Water Code 20026.
296. Health and Safety Code 205,
291. Stats.1941, c. 1253 (repealed Stats. 4450-4461, 5410-5415, 540G-5462.
19063, c. 109, but existing districts may
continue to operate). 297. Water Code 13521.
292. Water Code 24253.





CALIFORNIA WATER LAW IN PERSPECTIVE

(b) The Department of Fish and Game directs the construction of
fishways on all new dams or existing dams when enlarged or the con-
::ruction of a fish hatchery in lieu thereof, when determined to be ''"
r.cessary for the protection or preservation of fish,298 and examines .:
;1! conduits and directs the installation of fish screens when they are
*:termined to be necessary for the protection or preservation of fish.299
Whenever a diversion or obstruction of the natural flow of a stream or
:i.e is proposed, the department must be notified and it recommends
measuresre s necessary to protect fish and wildlife.300 Whenever the de-
.*irtment determines that a continuing or chronic condition of pollu- .
:ion exists, it must report such condition to the appropriate regional
rater quality control board and cooperate with the board in obtain-
i.'g correction.301 Use of a vacuum or suction dredge equipment in any
river, stream or lake requires a permit from the Department of Fish
a~d Game which will be issued if the operation will not be deleterious
to fish.30 '
(c) The Division of Soil Conservation of the Department of Con-
. rvation may promote the coordination of the activities of public
agencies in furtherance of the control of run-off and the prevention
and control of soil erosion and may investigate and plan works for
-,:h purposes.303
(d) The Division of Oil and Gas of the Department of Conservation c: .
:- charged with the duty of protecting underground or surface water :i
:i'able for irrigation or domestic purposes from the infiltration or
editionon of any detrimental substance from an oil or gas well.30
(e) The Division of Forestry of the Department of Conservation
;. authorized to enter into contracts and cooperative agreements with:
a..y person, firm, public or private, or any combination thereof, for the
;au.-pos of controlling burning of brush for watershed protection.305
(f) The Colorado River Board has power to conduct certain in-
.IeSigations and discussions, and make representations to protect the
I:::rests of the State, its agencies and citizens in respect to the waters
:h :he Colorado River.3"0

-'. !'ih- and Game Code 5930-5034. 303. Public Resources Code 9043-
9044.
:?. i'llh and Game Code 5980-5993.
304. Public Resources Code 3208-
.,;:. F'ih and Game Code 1000-1602. 3237.
305. Public Resources Code 4781-
:;:. Fi-h and Game Code 5631. 4783.

;;:. Fi-h and Game Code 5633. 306. Water Code 12500-12553.





CALIFORNIA WATER LAW IN PERSPECTIVE


IV. CITIES, COUNTIES, AND WATER DISTRICTS

Broad power was given to cities in 1911 by constitutional amend-
ment to establish and operate public works for supplying their in-
habitants with water, light, and power.307 These powers were rein-
forced by statutory authorizations,308 and counties by statute have
powers similar to cities.309 Both cities and counties are also author-
ized by law to undertake works for drainage and reclamation, flood
control, and overflow protection.310
The supplying of water and power to its inhabitants has been held
to be a municipal affair subject to control by a chartered city in its
charter and ordinances,311 although there may be circumstances which
make such matters more than municipal affairs and subject to State
control.31 The charter of the City of Los Angeles, for example, makes
provision for a Department of Water and Power 313 and that of the
City and County of San Francisco for a Water Department under its
Public Utilities Commission.314
Excepting cities and counties, the agencies heretofore discussed have
been part of the State government. Water districts, on the other
hand, while State agencies,315 are not part of the State government as
such. Such districts historically divided into two groups: (1) those
to protect or reclaim the land from water and (2) those to bring water
to the land. Latterly some districts of each type have been given
powers of the other type. Water districts may also be classified as
existing under general or special laws, the former typically being an
enabling act for the voluntary formation of districts and their govern-
ment, while the latter either create or provide for the creation of one
district and its government.
As early as 1866 provision was made by law for reclamation dis-
tricts,31' and in 1874 provision was made for irrigation districts in Los

307. Const. art. 11, 19 (repealed 1970). 311. City of Pasadena v. Charleville
308. Water supply: Government Code (1932) 10 P.2d 745, 215 C. 384.
38730-38742; electric power: Gov-
ernment Code 43600-43696, 55300, 312. Ibid., Department of Water &
55305, 55330. Power of City of Los Angeles v. Inyo
Chemical Co. (1940) 108 P.2d 410, 16
309. Water supply: Government Code C.2d 744.
25090; electric power: Government
k 25090; electric power: Government 313. Stats.1925, Res. c. 5, 218-229.
Code 43600-13696, 55300, 55305,
55330. 314. Stats.1931, Res. c. 56, 122.
310. Cities: Government Code 38900, 315. People v. Richards (1927) 260 P.
39961, 43601 and Water Code 9 8000- 582, 86 C.A. 80.
8061; counties: Government Code
25680-25684 and Water Code 8100- 316. Stats.1865-66, c. 570.
S129.





CALIFORNIA WATER LAW IN PERSPECTIVE

Angeles County.317 The first major legislation of a permanent effect
providing for irrigation districts was the so-called Wright Act in
7,31" followed by the so-called Bridgeford Act in 1897.319

Special water districts have had a long history in this State, one of
:he earliest being Sutter County Levee District No. 1,320 and of late
the formation of such districts has become increasingly popular.3""
There is case authority based in part upon an amendment to the State
Constitution 3' that such districts are not subject to the usual consti-
tutional requirement 323 that legislation therefore be enacted by general
liaw where general law can be made applicable.324 Since World War II
it has become quite prevalent for all or the greater portion of a county
to be formed by special law into a district for flood control or water
conservation or both.3'5

Sometimes the district law, though general in form, is so modelled
to fit a particular situation that it may be said to be special in fact.
This is true of the Metropolitan Water District Act, originally enacted
in 1927,3'' under which only the Metropolitan Water District of South-
e;rn California operates,3" and of the County Water Authority Act,
c:.-iginally enacted in 1943,"^ under which only the San Diego County
Water Authority operates.329 Both acts contemplate the wholesaling
cf water to cities and districts included in either a metropolitan water
di-trict 330 or a county water authority,33' the source of supply being
:ie waters impounded by the Boulder Canyon Project. A metro-


31t. stats.lS731-74, c. 214; see "Irriga-
.> l: district Movement in California",
A.1-in1,y Interim Committee on Con-
-r-ation, Planning, and Public Works
.-.<. 1 of Report), Jan., 1955.

31.. s.ats.1SS7, C. 34.

3:9. Stats.lS97, c. 1S9.

3:0. Stats.l1SdT-GS, c. 293.

't. '*Water District Laws of Califor-
i.i -A.n AnIlysis", Assembly Interim
Iq!lllnitte'( O ('oionservation, Planning,
a:,d P'il'lic Workls (Soc. 2 of Report),
J.n., 1955., pp. 90-185; "Analysis of
c.'lif'lrnia D)islrict Laws", Assembly
li!>Trim (',iinniittee on iMunicipal and
'a,,niiy (;,,iveriinent, 1965, pp. 60-170.
);,th reports embody substantially
.* milar material with respect to wa-
r, r- ditricts prepared by Kent L. De-
,:llllita, Delpulty Legislative Coun-
of California.

;:z. (..nt. art. 11, 13 (repealed 1970).


323. Const t. art. 16.

324. American River Flood Control Dis-
trict v. Sweet (1932), 7 P.2d 1030, 214
C. 778; 34 Cal.L.RIev. 690-694.

325. "Analysis of California District
Laws", Assembly Interim Conmmittee
on Municipal and County Government,
1965, pp. 81-82.

326. Stats.1927, c. 429. Repealed and
reenacted, Stats.1969, c. 209.

327. "General Comparison of Califor-
nia Water District Acts", Dept. of
Water Resources, Mar. 1965, p. 50.

328. Stats.19-3, c. 545.

329. "General Comparison of Califor-
nia Water District Acts", Dept. of
Water Resources, Mar. 1965, p. 21.

330. Stats.1969, c. 209, 130.

331. Stats.1943, c. 545, 5, subd. (11).


__ _







CALIFORNIA WATER LAW IN PERSPECTIVE

politan water district may include a county water authority 332 and in
fact does.
As of 1965 the State Legislative Counsel took cognizance of 31 gen-
eral water district acts.333 No new general acts have been added since
that year.334 What need is there for the numerous water district
laws? Diversities exist in functions which districts may perform, as,
for example, whether they may, and the extent to which they may,
distribute electric power.335 Differences exist in what area may be
formed into a district and who may petition for such formation. Dif-
ferences exist in voting qualifications, some districts requiring prop-
erty ownership.336 Probably no facet of their government is similar
as to all districts.
As of 1965 the Department of Water Resources reported the follow-
ing number of districts in existence for each type of district the law for
which has been codified in the Water Code, for drainage districts exist-
ing under the Drainage District Act of 1903,337 and for public utility
districts: 338
California water districts 339 ......................... 120
California water storage districts 340 .................. 9
Californiaounty water districts341 ... ... . . . . 202
County water districts 34 2 ........................... 202
County waterworks districts 42 . . . . . ..100
Drainage districts 343 ............................ 16
Irrigation districts 344 ................................105
Public utility districts 345 .......... ............... 63
Reclamation districts ......... ................... 129
There follow charts 34 showing the functions of certain districts
which may be formed under general law for water purposes and the
area which may be included in such districts:

332. Stats.1969, c. 209, 5, 26. 340. Ibid., p. 105.
333. "Analysis of California District 341. Ibid., p. 25.
Laws", Assembly Interim Committee
on Municipal and County Government, 342. Ibid., p. 29.
1905, p. 10.
1905 P. 10. 343. Ibid., p. 34.
334. Ibid. 1969 Supplement, pp. 5-6.
344. Ibid., p. 41.
335. See Water Code 22115-22123.
345. Ibid., p. 69.
336. Water Code 41000.
346. Ibid., p. 72.
337. Stats.1903, c. 238.
347. These appear in "Analysis of Cal-
338. Public Utilities Code 15501- ifornia District Laws", Assembly In-
17501. term Committee on Municipal and
County Government, 1005, pp. 10-11 &
339. "General Comparison of Califor- 17-18; see n. 321.
nia Water District Acts", Dept. of Wa-
ter Resources, March 1965, p. 93.
CIV


1










WATER DISTRICTS (GENERAL LAW)


California water districts
California water storage districts
Community service districts



County drainage districts
County flood control districts
C County water authorities
County water districts
County waterworks districts
Drainage districts (Act of 1885)
Drainage districts (Act of 1903)
Drainage districts (Act of 1919)
Flood control and flood water
conservation districts
Irrigation districts
Levee districts
Levee districts (Law of 1959)
Metropolitan water districts
Municipal utility districts

Municipal water districts (Act of 1911)

Municipal water districts (Act of 1935)
Continued on next page.


Storage Sewage
and dis- disposal Fire
tribution or protec-
of water salvage tion


FUNCTIONS

Control
Recrea- flood
Electri- tional and
cal facill- storm
power ties waters


Drainage
and
reclama-
tion


-I- 1* I I 1


Yes

Yes







Yes
Yes







Yes




Yes

Yes


Yes



Yes







Yes
Yes







Yes


Protec-
tion
from
overflow


May provide for street lighting, street work,
mosquito abatement, police protection, li-
brary buildings

As provided by board of supervisors
Preference given to member agencies
May lease or sell oil or mineral rights



Limited to agricultural land







Conserve and add water to sloughs and drains

May furnish telephone or other means of
communication and transportation
Recreational facilities appurtenant to reser-
voirs


* ,.i




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