The Good Rights Myth

Today, water law remains largely unchanged, a residually conservative doctrine that disfigures California’s progressive posturing. It’s all still a dizzying maze of pre- and-post-1914 rights claims, made more dizzying by the steady accumulation of niche contractual obligations, bizarre and dubious exceptions, the overlapping roles of roughly hundreds of county water districts and local agencies, and even the private leasing of rights between landowners.

Even the most obsessive water-law wonks among us will admit to the utter incomprehensibility of the system’s minutiae

A woodcut of a mountain lake.
Chiura Obata, Lake Basin in the High Sierra. 1930, color woodcut on paper.

Each morning, before the inevitable slog to my desk job in the city, I wake up early to check on my corn. Since late spring, the seeds I sowed in a modest raised bed in the backyard have grown into eight-foot-tall stalks. It’s been an honor to watch these plants reach for the sky, the various stages of their development a helpful antidote to a year of flattened time and screens. You wouldn’t know, looking at the easy height of the stalks, that it’s imprudent to grow corn through a California summer. Unlike the Midwest, with its humidity that breaks into reliable afternoon thunderstorms, or even the Southwest, with its monsoon season, the state sees its driest months in June through August. But I’m lured to the agrarian fantasy, and with my garden hose set to “shower” mode, I can essentially replicate the optimal growing conditions of some faraway field, my own private Iowa. 

Out of the hose spouts a bit of the Mokelumne River, whose diminishing flow is stored in the Pardee and Camanche Reservoirs before gravity pulls the water ninety miles down to me. Because California lapsed into another grave drought earlier this year, I feel a pang of guilt every time I go out to do the watering. But the tap stays on without state-mandated restriction, so I push through the bad feelings knowing that my corn, like the hobby crops grown all over the state, is a little selfish. 

By this past May, nearly all of the Sierra Nevada snowpack — the reserve of alpine snow whose slow melt trickles into waterways like the Mokelumne, accounting for roughly 30 percent of the state’s water source — had disappeared. Without snowpack runoff, there’s a slim chance of replenishing the state’s reservoirs, which have been reeling after two virtually nonexistent “wet seasons.” The land is so parched this year that it absorbed what small trickle of the snowpack there was at a rate and magnitude not comparable to any previously noted in recorded history. The Pardee and Camanche, where my own water comes from, currently sit at a fraction of their annual averages. In August, the state’s second-largest reservoir, Lake Oroville — located not too far from Paradise, the town wiped off the map by 2016’s historic Camp Fire — plummeted to its lowest water level ever.

More than the deep crimson that indicates the worst drought category (D4, Exceptional) on the US Drought Monitor’s map of California, Lake Oroville’s rapid shrinkage functions as the reigning visual of this dry period. Diptychs of the lake’s gorged before — cobalt water right up to the tree line — and its dwindling after — a serpentine runnel that sits nowhere near the reservoir’s beige banks— get the front-page treatment, at least in papers from towns north of Los Angeles. (In the southern part of the state, it’s withered Lake Mead that gets the point across.) Like any successful documentation of environmental disaster, these images elicit an alarming calculus: How much longer can this relative puddle be relied upon to serve millions of people and irrigate many thousands of acres of farmland?

Water scarcity is a chronic condition in the West. Long before it was colonized and carved up—first by Spaniards and later by a constant stream of Euro-American settlers—the region fell victim to prolonged droughts. Paleoclimatologists have been able to corroborate climate events from past centuries by studying the trunks of Douglas fir trees, whose rings tell of yearly temperature and rainfall, or the lack of it. Narrow rings tell of the Great Drought, which lasted from 1276 to 1299 CE, and which played a heavy hand in the societal collapse and dislocation of Ancestral Puebloans in the Southwest who’d become increasingly reliant on agricultural practices. The rain didn’t fall, so the corn didn’t grow, people grew hungry, and thus the leaders weren’t to be trusted. Drought came again in the late 1500s, the mid-1800s, and, after the favorably wet 1910s, has visited for at least a couple of years every decade since. 

Surely the intense climate variability of what is now California is part of why we’ve been so cyclically ignorant to the long-term effects of drought. There’s ancient precedent for the pendulum swing from dry to wet —though when, exactly, the pendulum might swing hasn’t always been certain. When it’s dry, soil health deteriorates, crops die, bacteria multiply in stagnant potable water sources, weakened coniferous trees are made susceptible to deadly bark beetles, dust pollutes the air. People are encouraged to take shorter showers, pack the dishwasher full, and swap out lawns for rock gardens. But then, after what feels like forever, the rain comes again — sometimes, too much of it, washing away hillside highways and flooding riverside homes — and the organized forgetting commences. 

2017 was one such year of forgetting. The state saw its wettest winter in nearly a century; the snowpack rebounded by fourfold, and all the wilted watersheds refilled, luxuriating in excess. And while this deluge had caused major power outages and mudslides, the damage was colloquially considered a reasonable price to pay for relief from merciless dryness. That April, then-governor Jerry Brown triumphantly declared that the drought of 2011–2017 had ended, and the state’s ongoing Save Our Water campaign, with its slogans like “Brown is the new green,” disappeared from billboards and bus stops. 

The wet years, as vital as they are, propagate a false immunity against the region’s essential condition. Data from the Palmer Drought Severity Index shows that, just in the last decade, California has experienced its two worst droughts on record since 1895. Some scientists question whether the Great Rains of 2017 ended the dry years so much as placated them, thus suggesting the current deficit is in fact continuation of a longer megadrought. Whatever the case, the West is undergoing aridification — that long and slow trudge toward permanent lack of water. Human-induced climate change has, of course, accelerated this process, requiring of our lexicon new terms to describe the intensifying phenomena that eradicate moisture. One such coinage is “hot drought,” which identifies the correlation between temperature rise and increased drought severity. As the atmosphere heats up with the burning of fossil fuels, it becomes thirstier, and as a result, more water is evaporated than is accumulated in streams and soils. 

A few months back I went with some friends to visit a small farm in Sonoma County. Our shared wish was to be somewhere beautiful, but I had also the secret ambition of traipsing around irrigated fields, Chinatown-style. We drove north, out of the morning blanket of fog, and through a hot spread of golden hills littered with occasional cowherds, chewing at nothing. Though hardly an hour from the East Bay, in a place that relies just as much on snowmelt for its water supply, the county’s messaging around the crisis seemed noteworthy to us merely for existing at all. We stopped for lunch in Petaluma — once known as the Egg Basket of the World — to find a large banner that read SEVERE DROUGHT ALERT stretched across Kentucky Street. It was the same banner the town hung in 2015 during the height of the last drought, though this time they didn’t bother adorning the vinyl with three decorative water drops. 

The farm, which sits along the banks of the Russian River, grows flowers and vegetables, and is surrounded by hillsides of grapes and olives. A few days before our visit, a representative from the State Water Resources Control Board had stopped by to issue a warning about new, mandatory cuts to water diversions from the river. Levels at Lake Sonoma, like at Oroville and other flow-storing reservoirs, were low, and officials called for widespread usage cuts in order to prevent the worst of the drawdown. As we toured the fields, the farm’s irrigation coordinator pointed to all the produce that now either required rapid harvesting or would to be left to die on the vine. There were tomatoes huddled near the last drips of the water pipe, and pepper and melon plants that would never fruit. We were prompted to feast on rows of glistening strawberries that would otherwise go to waste. 

After the tour, we waded into the river, which was warm and depthless and blooming with the heat-loving algae that thrive when the Russian is shallow. I asked the coordinator what would come next, for the farm and the pickers who worked there. The owners, she said, would likely undergo many thousands of dollars in losses after cutting the growing season short, but in the end they—wealthy retirees from Marin who indulged and scaled their own agrarian fantasy—would be fine. The real precarity would fall on the laborers, many of whom would now be jobless while still liable to make rent in wine country. Some might be able to find work further downstream at any number of the fancy vineyards that, instead of halting operations, could choose to accrue the thousand-dollar-a-day fines for diverting water despite restrictions and firm pleas. With an air of slight disbelief, the coordinator gestured back to the fields on the bank, and said that all this was happening even though the farm had “good rights.” 

California’s arrangement of unequally distributed access to water—which grants “good rights” to some and less water to others—is a legal holdout from the prefatory days of the state’s settlement and the makeshift rights system concocted to accommodate its expansion. Landowners and water users, beginning in the mid-19th century, ascribed to a “first in time, first in right” model. That is, whoever arrived earliest to divert river flow, via ditches and flumes, got to use the most of it, and all who proceeded in arrival were placed in lower strata with lesser claims to the water. Those who owned parcels that abutted water sources enjoyed generous diversions by way of riparian rights, which were adopted from English common law. (The irony of applying the laws of a famously rainy place to the arid West seemed not to pose the concerns it should have.) In 1848, the region transformed forever: A New Jersey man named James Wilson Marshall found gold flakes in the American River, inciting a frenzied influx of prospectors who sought to use and move millions of gallons of water. Hydraulic mining — the reckless act of shooting highly pressurized water at cliff faces in hopes of loosening gold from rock — was commonplace. To sustain this extractive practice, settlers contrived of appropriative rights, which allowed users (namely miners) without riparian claims to simply declare how much water they intended to divert and store. So long as this flow was subject to continuous, consumptive use, the rights would remain intact — a condition that rewarded unchecked squandering. In addition to defacing hillsides and tainting rivers with sediment, hydraulic mining got early Californians hooked on developing communities in places that lacked lakes and substantial rivers. The wooden flumes and ditches of the Gold Rush foreshadowed the heaping concrete aqueducts that would transform deserts into emerald patchworks of farmland and sprawling cities like San Francisco. 

By the late 1800s, most settlers had realized they could turn a greater profit growing the grains and raising the livestock that miners ate rather than doing the mining itself. Wheat fever was usurping gold fever and, spurred by the mass selling of valley parcels by land barons like William S. Chapman, miners were coaxed into becoming farmers. Much of the Central Valley acreage that today’s corporate farms brand as mythologically fertile was considered unfit for growing until the barons rerouted flow from the San Joaquin and Kings Rivers and oversold the agrarian lifestyle to aggrieved prospectors. As the years passed, one ecologically destructive and water-intensive monoculture bowed to the next. After wheat surplused, white Southerners ventured here in an attempt to recreate cotton-growing prime of the Confederacy. Then came the steady reign of fruit and nut orchards, the latter of which continues to accrue acreage to keep up with soaring foreign demand for California’s specialty crops. By 2020, almond orchards alone surpassed 1.5 million acres, with much of that expansion taking place throughout the mid-2010s drought. 

Years of staggering population and farming growth only magnified the underlying flaws of the two-pronged rights system. Competition for access to water grew fierce and conflict arose between stakeholders whose claims were at existential odds. Still, in 1886, the California Supreme Court voted to uphold the state’s uneasy combination of riparian and appropriative rights, and legally solidified the primacy of the former. And while there had been numerous attempts to manage the water diversion madness, it wasn’t until 1914, via the Water Commission Act, that the state began regulating rights-granting in earnest. A permit system, meant to standardize and assess “beneficial use” of the natural resource, was established. Today, water law remains largely unchanged, a residually conservative doctrine that disfigures California’s progressive posturing. It’s all still a dizzying maze of pre- and-post-1914 rights claims, made more dizzying by the steady accumulation of niche contractual obligations, bizarre and dubious exceptions, the overlapping roles of roughly hundreds of county water districts and local agencies, and even the private leasing of rights between landowners. 

Successful curtailment of senior riparian rights along the Russian River, then, seems both ominous and a little hopeful. It speaks, on the one hand, to the acuteness of the shortage: curtailing newer and more junior rights was simply inadequate in helping preserve river flow. But on the other, it suggests some slight loosening of the antiquated legal grip that the rights system has had on a water supply that clearly demands stricter safeguarding. For years, state and local water officials have attempted and failed to ration allocations during drought times. But holders of pre-1914 rights have fought back hard, inciting due process to preserve their virtually unlimited access to surface water. The labyrinthine nature of California water law has been advantageous to those with preexisting rights looking to win a legal battle. Even the most obsessive water-law wonks among us will admit to the utter incomprehensibility of the system’s minutiae. Exasperation and intimidation and tradition have historically won out. 

It’s no wonder that “good rights” are discussed with invincibility and even smugness by people in agriculture throughout the West. Once, while on a date with a farmhand some years back, I felt bold enough after a second drink to pop the Almond Question: How does your employer justify adding acreage, after a dry winter, of a notoriously thirsty nut? Her answer, in short, was that the almond groves yielded the farm more profit per pound than the fruit trees—and, regardless, the farm had “good rights.” More recently, while in the juniper woodlands of southern New Mexico, I asked an old rancher what it was like to maintain livestock when water was so scarce. “Well,” he said, “a drought’s only as bad as your rights, and luckily I’ve got good rights.”

The agriculture industry justifies its reliance on over-allocated water in rhetoric that aligns with its prevailing we’ve-always-done-it-this-way attitude: Both agribusiness lobbyists and industry historians often trumpet the old lie that federal developers and farming forebears knew next to nothing about the West’s chronic aridity. Irrigation districts that chiefly serve cropland, hoping to keep favorable rights intact, have successfully suggested that patterns of river flow were not widely understood when the laws were enacted. This claim is a brazen one. As Eric Kuhn and John Fleck argue in Science Be Dammed: Inconvenient Science Drained the Colorado River, ample evidence of water scarcity had been documented throughout the West for almost two centuries, but was later tweaked and buried by trusted entities like the United States Bureau of Reclamation, to substantiate the region’s growth trajectory. “The problem,” the authors write, “was that in an era driven by politics of competition for a limited supply of river water and federal dollars, the decision makers had the opportunity to selectively use the available science as a tool to sell their projects and vision for the river’s future to Congress and the general public.” Without such strategic concealments of ecological fact, it’s quite possible that neither the Imperial Valley — the naturally dusty expanse that, with the transformative help of massive diversions, supplies a majority of the country’s wintertime vegetables— nor most of Southern California suburbia, would exist at all. Kuhn’s and Fleck’s Colorado River thesis is a transferable one: willful tinkering and fudging and overselling undergird most every ambition of development in the American West. Take, for example, William Mulholland’s manipulation of rainfall figures to complete his infamous 1910s swindle of Owens Lake, which he rerouted and emptied to expand the unrelenting boomtown of Los Angeles. And if we consider drought’s emerging social definition—that is, insufficient water relative to what would be required to scale our cities and farmland without hindrance—then it’s clear that the region has been in irreconcilable deficit since settlers stole the land. 

To compensate for lack of surface water, farmers rely on the extreme pumping of groundwater. In drought conditions, as much as 100% of a farm’s irrigation supply can come from tapping underground aquifers. Groundwater, trapped in pores just beneath the earth’s surface, is drawn up with wells that must be drilled ever deeper. One adverse effect of groundwater overdraft — when pumping happens at a rate faster than the replenishment of aquifers — is land subsidence. Since agricultural pumping in the San Joaquin Valley began in the 1920s, some land has sunk twenty-eight feet. When the land sinks, it weakens the foundation on which towns and water infrastructure is built. Canals buckle and gravity fails to push the water to farms and communities down the aqueduct. In response, water users double down on pumping and the cycle continues. 

Years after nearby—and supposedly more conservative—states passed groundwater laws (Colorado in 1965; Arizona in 1980; Utah in 1991), California’s state legislature only took action against agriculture’s pumping problem in 2014. With the signing of the Sustainable Groundwater Management Act (SGMA) came the promise of regulating the harmful hoarding of aquifers. Rural communities, which are often outside water districts and thus reliant on private wells, were meant to benefit. But implementation of the cutback measures detailed in SGMA has been left up to local water agencies — many of which are influenced by the interests of “Big Ag” — and don’t require implementation until 2042. In its wake the aggregate bills have left a mess of further deregulation, and have, in practice, encouraged additional groundwater pumping before the vague threats of deadlines materialize. Thousands of people in the Central Valley, including farmworkers, must drink and bathe in bottled water as domestic wells spit up the brown dregs of orchard-depleted aquifers. 

Large-scale farming is of course just one of the many factors contributing to California’s water crisis, but it is a very major one: the industry uses about 80 percent of the water supply allocated for human use. There’s no doubt that decent portions of the 10 percent used by municipal districts is squandered on idiotic things. This is, after all, a land of cruel exhibitionism: desert golf courses and swimming pools, ornate fountains and manicured lawns. But since the last drought, many Californians have learned to shame the shameless. (My favorite artifact from 2015 is an aggregated trove of aerial images depicting the grounds of celebrity mansions that stayed lush while normal people’s yards went brown.) Agriculture’s water use, on the other hand, goes largely unquestioned. Even the biggest players in the industry use to their advantage the airtight portrayal of farming as the most virtuous and necessary of American professions in order to evade scrutiny of illogical expansion. Under the influence of the public-relations might behind groups like the American Pistachio Growers and Real California Milk, photojournalists from glossy New York publications fly in during drought times and feed the narrative by taking sympathetic shots of growers peering despondently over sputtering lines of drip irrigation. We’re made to forget that while food must be grown somewhere, the volume at which it’s grown here is detrimental. 

Today it pours without stopping. This is what we hoped for, and it feels like a miracle that the storm has made landfall with full force. Flash flood warnings are in effect all over Northern California. There are people walking around my neighborhood in trance states, without umbrellas, voluntarily trudging through the backwash of storm drains. Kids are jumping in puddles with the depth of inflatable pools. 

I keep checking the doppler radars and refreshing the hydrographs to see how much water is flowing at various points along the Russian River. I try to picture what the banks of the small farm I visited look like now — swamped, probably, since the river surpassed the “minor flooding” threshold earlier today. Tomorrow I’ll check the reservoir-level charts to see if any dent has been made in the deficit. Images circulate on Twitter of debris flow from terrain made naked by the Caldor and Dixie Fires. Sections of Highway 70 in Butte County, which was struck by the Dixie, are closed due to the collapse of hillsides. A mess of boulders and Ponderosa pines block both lanes. Not so far away, on an alpine hillside in the next county over, runs an old water flume, erected in the early 1900s, and I wonder if it’s outlasted another deluge. 

This sense of collective relief — joy, even — feels a little perverse knowing all we do about this storm’s contradictory effects. Heavy rains have caused evacuations near burn scars, but also extinguished what has been an agonizing fire season. Downpour will not remedy the drought, though water momentarily fills parched rivers and streams. There’s no telling yet if this “atmospheric river” will be one of many in a redeeming wet season or just a one-off to be punctuated by another dry winter. The high drama of California’s extremes—scorched and burned months; drenched days; minutes filled with the violent clash of geologic faults—is tiring, and compounded still by bad decisions that have worsened these extremes and their human cost. But for now, I think of none of that, and stand out in the rain to watch my garden bed gurgle with water. 

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