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‘A foundation of racism’: California’s antiquated water rights system faces new scrutiny


It’s a mysterious system of water laws that dates back to the birth of California – an era when 49ers used sluice boxes and water cannons to scour gold from the Sierra Nevada foothills and when the state government promoted the extermination of Native people to make way for whites. settlers.

Today, this antiquated system of water rights still governs the use of the state’s resources, but it is now under more critical scrutiny than ever before.

In the face of global warming and worsening drought cycles, a growing number of water experts, legislators, environmental groups and tribes say it’s finally time for change. Some are pushing for a variety of reforms, while others are calling for the outright dismantling of California’s controversial water rights system.

The call for reform was recently amplified when the environmental group Restore the Delta released an analysis that concluded that the people who make decisions about water in California are overwhelmingly white and male.

“The entire water rights system is based on racism and violence,” he said Max Gomberg, a former staff member of the State Water Resources Control Board who has sharply criticized the Newsom administration and now works with the environmental group. “It should be abolished.”

The report was released as state lawmakers held a hearing on several reform proposals that would address longstanding problems within the water rights system.

“This isn’t an easy conversation, but I think it’s long overdue,” said Councilmember Rebecca Bauer-Kahan (D-Orinda), who chairs the Water, Parks and Wildlife Committee.

Bauer-Kahan said there are many signs that the existing system “is not functioning properly and equitably,” including the “inability to halt illegal diversions.”

At the hearing, experts such as Richard Frank, a UC Davis law professor, argued for a “more agile system,” while Ellen Hanak, director of water policy for the Public Policy Institute of California, said the changing climate is putting pressure on the water rights system. .

“We are facing climate change, drought and water supply problems in the 21st century with a 20th century system of California water infrastructure and a 19th century system of water rights, and that is a problem,” said Frank, director of California Environmental Law and Policy Centre.

Hanak and other researchers urged the legislature to clarify that the state water board has the power to enforce and curtail all water rights, including the oldest “senior” water rights, the so-called riparian rights, and pre-1914 rights. They also called for the board to be empowered respond more quickly to dry conditions by relaxing requirements that limit when the agency can limit diversions of rivers and streams.

The researchers recommended renegotiating senior water users’ contracts for supplies from the Central Valley Project and the State Water Project, California’s two main systems that transport water from the Sacramento-San Joaquin River Delta. They said current contracts promise greater water supplies than the delta can support in dry years.

Felicia Marcus, a Stanford University researcher and former chair of the State Water Board, warned that “the crises ahead will make our crises today look like a picnic. So we need to invest in a system that works for everyone.”

For example, she noted that senior water rights holders do not need to obtain a permit or pay fees to operate the system, while others with more junior rights must do both. She said enforcement is complex and cumbersome and the state needs a system that is “more transparent and more workable.”

Bauer-Kahan has introduced a bill she says would help state water management effectively enforce water rights and curb illegal water diversion. the law, AB 460would authorize the board to impose increased fines of up to $10,000 per day for violations, plus additional amounts for illegally diverted water.

Other recently submitted bills would expand those of the water board enforcement agency or are authority to investigate whether water is legally diverted under a valid law.

Environmental advocates and tribal leaders have supported the proposals, but are also calling for deeper changes, citing deep-seated inequalities.

Recently, two Department of Water Resources employees used software that analyzed people’s surnames in an attempt to determine their race and applied it to state water records in a analysis titled “Who Makes Water Decisions in California?”

They analyzed the names of about 1,500 local water agency directors and estimated — for those whose names could be classified — that about 86% were white and 78% were male. They found that the lack of diversity was especially pronounced for agricultural water districts, with it estimated that 92% of drivers are white and 92% are male.

They also analyzed state water rights data. While rights to much of the state’s water are controlled by institutions, such as agricultural irrigation districts and urban water districts, an estimated 1% to 2% of water diversions are credited to individuals. Of the nearly 14,000 water rights holders, an estimated 91% are likely to be white, they said.

They posted the analysis and data online on a state server and the information was distributed on LinkedIn. The Department of Water Resources later deleted the data.

Margaret Mohr, a DWR spokesperson, said the department removed demographic data about water rights and local water agencies “because they were analyzed using predictive racial and gender models that can misidentify people and the data contained a collection of personal information that had not been may be posted publicly in that manner.”

“DWR is working to develop and determine a more appropriate method for collecting and reporting power data as part of the 2023 update to the California Water Plan,” Mohr said in an email.

Barbara Barrigan-Parrilla, executive director of Restore the Delta, said the agency’s decision to suppress the analysis was alarming.

“California water rights were created by taking land and water from tribes. And as the water rights system evolved, you had a parallel set of laws, customs and practices in California that pushed people of color out of land ownership near water,” Barrigan-Parrilla said. “It’s just a continuation of the discriminatory practices that started with the creation of a system that was racist, and now it’s the institutionalized discrimination that continues.”

During the 1800s, when white settlers staked their water claims, they sometimes simply nailed a message to a tree. California still recognizes water rights based on those old claims, as well as riparian rights based on land tenure next to rivers and streams. Rights to surface water under the state’s pre-appropriation system follow a “first-in-time, first-in-right” order. And rights since 1914 belong to a state permit process.

Groundwater remained unregulated until 2014, when the state passed the Sustainable Groundwater Management Act, which aims to address widespread overpumping problems.

Restore the Delta is part of a coalition of tribal and environmental groups that filed a federal civil rights complaint against the State Water Board in December alleging discriminatory water management practices. They have called for the rights system to be overhauled, pointing to a legacy of racism that has long prevented tribes and people of color from securing water rights.

Malissa Tayaba, vice president of the Shingle Springs Band of Miwok Indians, said the data analysis findings reflect California’s history of removing tribes from their homelands through colonization and state-sponsored genocide.

Tayaba said that while the current water rights system “excludes us and continues to do so to this day, we know that tribes have inherent and sovereign water rights that we will continue to fight for.”

At last week’s legislative hearing, some argued that reexamining the system should address the effects of systemic racism.

“The system is deeply flawed in addressing equality. We need to examine to what extent water rights are related to wealth, power and privilege,” said Elizabeth Salomone, manager of the Russian River Flood Control and Water Conservation Improvement District.

Others discussed the difficulty of enforcing rules in such an outdated system.

Last summer, an agricultural irrigation district defied drought regulations and drained water of the Shasta River, in violation of flow requirements designed to protect salmon. The State Water Board fined the Shasta River Water Assn. the maximum amount for the offense: $4,000.

“The maximum total penalty the state board could impose for these violations, these willful violations of their containment rules, was clearly not a deterrent,” said Yvonne West, director of the board’s enforcement office. “It showed a lot of the enforcement challenges we face.”

The illegal withdrawal of water from the Shasta River was devastating to struggling fish species in the Klamath River and its tributaries, where ash-filled runoff from the McKinney fire had recently cleared. killed tens of thousands of fishsaid Arron “Troy” Hockaday, a councilor from the Karuk tribe.

“I cried. I’m so emotional right now,” Hockaday said. “It’s horrible to see what they’ve done. It’s our future. It is our future for our children, our culture, our way of life.”

He said the Karuk tribe supports the measures to strengthen enforcement in Bauer-Kahan’s bill.

“We’re not against farmers,” Hockaday said. “But at the same time, the fish are the senior beneficiaries of the water. Remember that. No people. The fish are the senior beneficiaries.”

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