by Alina Werth, ’25, UC Davis School of Law[1]

Alina Werth is a rising 3L at UC Davis School of Law where she studies water and environmental law. Her article below won the 2024 California Water Law Writing Prize, sponsored by the California Water Law Symposium and University of the Pacific, McGeorge School of Law.

INTRODUCTION

In California, surface water provides approximately 60 percent of the state’s agricultural, industrial, and municipal water demand.[2] Surface water is also vital for the environment—it supports instream habitats for aquatic species and helps maintain adequate water quality levels in the state’s streams, rivers, and lakes.[3] This surface water, however, is overallocated.[4] The amount of allowed water withdrawals exceeds the surface water that is available without extensive damage to ecosystems and other instream uses.[5] Climate change will only further impact the timing and quantity of available surface water.[6] In a future where less water will be available to meet the same or increased demand, moving water between users and protecting water for non-consumptive uses will become increasingly important.[7] Market-based strategies, such as water markets, are proposed as an effective and efficient way to move water from low-value to high-value uses and will likely play an important role in the management of California’s scarce surface water resources.[8]

At the same time, the current allocation of surface water in California is fraught with injustices. Surface water rights in California (i.e., the right to divert a certain amount of water from a lake, river, stream, or creek[9]) were first perfected in the late 1800s at the same time as the state-sponsored genocide of Native Americans.[10] Indigenous peoples[11] throughout California were forcibly dispossessed of their ancestral lands and denied access to important cultural and spiritual water bodies.[12] As a result, today many Native American tribes and indigenous peoples lack access to culturally important water bodies, and many of these water bodies are no longer able to support traditional uses.[13] Understanding the historical context in which water rights were developed is important for contextualizing the current allocation of and access to water, especially as California grapples with how its water rights regime can equitably handle the strain of climate-induced droughts.

This Note offers a potential strategy for beginning to rectify the unjust allocation of water in California. It focuses on working within the current water rights regime to reallocate water outside of a market system. This is an important first step because purely market-based[14] reallocations of water will only serve to further perpetuate existing inequities.[15] Consequently, the strategy proposed by this Note will also help to ensure that water markets can play a role in the management of California’s scarce water resources without further entrenching or perpetuating historical injustices.

This Note argues that if it were not for the forced expulsion and genocide of Native Americans throughout California during the late 1800’s, tribes would have access to their ancestral homelands and water bodies and would likely hold substantial water rights under the state’s riparian and appropriative water rights regime. Part II of this Note will provide a background on the legal regime of water rights and water quality in California. It will also provide a brief history of the state-sponsored genocide of Native Americans in California and the dispossession of their homelands and outline current tribal claims to water rights. Part III of this Note will outline a three-part argument. First, historical injustices are directly responsible for the current inequities faced by indigenous communities in California. Second, non-market reallocation of water is an important pre-requisite before market-based mechanisms can move water flexibly, efficiently, and equitably between users. And finally, the State Water Resources Control Board (“the Board”) has the authority to curtail water rights during times of shortage and when water is being used unreasonably. Part IV of this Note offers a partial solution for reallocating water by using Tribal Beneficial Uses designations for water bodies to catalyze the curtailment of water rights to achieve water quality objectives. Such a reduction will reallocate water from riparian and appropriative rights to in-stream uses to protect water quality levels and ensure traditional tribal cultural uses of water bodies are protected.

 BACKGROUND

The Background is broken into four sections. First, it will provide a description of the legal framework for water rights in California, which includes riparian and appropriative rights, and identify state constitutional limitations on water use.[16] Next, it will provide a summary of California’s water quality regulation. It will then provide a brief history of the treatment of Indigenous communities during the late 1800s when water rights in California were first established. Finally, it will outline how tribes can and do assert claims to water rights in California.

Water Rights In California: A Dual System of Riparian And Appropriative Rights

Generally, a water right confers an usufructuary right to beneficially use a reasonable amount of water. A usufructuary right confers the right to use, rather than own, a certain amount of water. Riparian water rights have a common law origin and represent the right of a property owner adjacent to a body of water (e.g., stream, river, etc.) to divert a reasonable amount of water for beneficial use on their property.[17] As such, a riparian right attaches to the land and is thought of as “one of the ‘bundle of sticks’ that defines land ownership under the common law.”[18] A riparian right does not expire and can be claimed at any point in time. If there is insufficient water in a system, all riparian users must reduce their water use proportionally.[19] In the California Supreme Court case Lux v. Haggin, the court recognized the common law right of riparian landowners to divert water from streams adjacent to their property.[20]

Appropriative water rights in California, on the other hand, grew out of a need to use water on lands not adjacent to a body of water and divert water from land not owned by the appropriator.[21] Appropriative rights are subject to the “first in time, first in right” doctrine, meaning that when there is not enough water to satisfy all appropriative rights, the most junior rights (i.e., the most recently perfected rights) must curtail their water use first.[22] An appropriative right allows an appropriator to divert a specific amount of water from a specific location to be put to a specific beneficial use.[23] In relation to water rights, the beneficial use is the “useful purpose to which water is applied” and includes domestic, irrigation, power generation, municipal and industrial uses.[24] California also recognizes the use of water in a stream or river to support the environment as a beneficial use,[25] but does not allow water rights to protect these instream uses, except in narrow circumstances based on water transfers and dedications.[26] Appropriative rights are subject to the “use it or lose it” doctrine. If an appropriator fails to divert and beneficially use water over a statutory period, they lose their right, including the priority date.[27] Because of the “first in time” doctrine, the priority date of an appropriative right is important and makes older water rights more valuable and secure.[28]

The difference between riparian and appropriative rights becomes important when there is not enough water in a system to satisfy the needs of all users holding a water right. While riparian rights holders must reduce their use proportionally amongst other riparian users, they generally have priority over even the most senior appropriative rights.[29] Thus, the ‘rule of priority’ could result in appropriators not being able to divert any water when supply is short.[30]

There are two tiers of appropriative water rights in California. The Board, the state agency responsible for managing California’s water resources, was created in 1913,[31] so there was not a permitting system for the appropriation of water in California until 1914.[32] Consequently, appropriative rights established prior to 1914 do not require a permit while those established after December 19, 1914 must be permitted by the Board.[33] The latter are subject to a “comprehensive regulatory scheme . . . to safeguard the scarce resources of the state.”[34] While riparian and pre-1914 water rights holders do not require a permit to exercise their rights, they are still subject to certain regulations, including reasonable and beneficial use requirements.

The Board’s initial role was purely ministerial, meaning that it granted a permit to divert water if it was for a beneficial use and there were no competing downstream uses (i.e., whether unappropriated water was available).[35] In 1928, Article X, Section 2 was added to California’s Constitution, which prevents “the waste or unreasonable use or unreasonable method of use of water.”[36] This enactment “radically altered water law in California and led to an expansion of the powers of the Board.”[37] In 1943, a similar provision was added to California’s water code limiting the diversion of surface water “to such water as shall be reasonably required for the beneficial use to be served” and specified that the right to water “does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water.”[38] These limitations on the use of water give the Board authority to consider the reasonableness of water use in the context of granting appropriative permits.[39] The reasonable use doctrine “ensure[s] that the state’s water resources are used in ways that serve the public interest, not just to benefit senior water right holders.”[40] The Board is responsible for enforcing reasonable use policies[41] and state courts and the California Department of Water Resources also share jurisdiction to enforce Article X, Section 2.[42] These reasonable use policies apply to all water rights in California, regardless of the type of right or when the right was perfected.

Water rights in California are also subject to the public trust doctrine. The public trust doctrine is the principle that the State of California “owns all of its navigable waterways and the lands lying beneath them as trustee of a public trust for the benefit of the people.”[43] Non-navigable tributaries flowing into navigable waters fall within the scope of the public trust doctrine.[44] Consequently, “parties acquiring rights in trust property [e.g., water rights] . . . hold those rights subject to the trust, and can assert no vested right to use those rights in a manner harmful to the trust.”[45] The public trust “is an affirmation of the duty of the state to protect the people’s common heritage in streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purpose of the trust.”[46]

Regulating Water Quality In California: The Porter-Cologne Act

In addition to water rights, the Board and nine Regional Water Quality Control Boards (“Regional Boards”) are responsible for the establishment and implementation of California’s water quality policies under the Porter-Cologne Water Quality Control Act.[47] The Porter-Cologne Act establishes a comprehensive program to protect water quality by, in part, requiring the Board and the nine Regional Boards to adopt water quality plans, which are the basis for achieving federal water quality standards.[48] These plans have three main components. First, the plans designate the “beneficial uses” of water to be protected, which is distinct from the beneficial use of a water right.[49] The Board defines beneficial uses as the “resources, services, and qualities of California’s aquatic systems,” where “swimming, fishing, spawning habitat, protected species habitat, agricultural use, tribal and cultural use, and municipal and domestic supply are all examples of beneficial uses.”[50] Next, the plans establish water quality objectives to protect the identified beneficial use or uses (i.e., what water quality is needed to ensure the beneficial use(s) of the water body can persist?).[51] Finally, the plans outline implementation programs designed to achieve the water quality objectives.[52] The Board puts together a statewide plan while the Regional Boards put together basin-level plans that cover specific water bodies in their jurisdictions. These plans must be updated every three years, at which time the beneficial use designations of waterbodies can be added or changed.[53]

Implementation programs outlining the actions necessary to achieve water quality objectives can take various forms. For example, they might include actions related to effluent discharges, such as the development of Waste Discharge Requirements, the establishment of water-quality based effluent limitations, or prohibitions of discharges.[54] However, such programs could also potentially address water quality objectives by increasing the volume and flow of water in California’s rivers since water quantity and water quality are indelibly tied.[55] For example, certain water quality concerns, such as water temperature or salinity levels, are created by insufficient instream flow rather than the discharge of a particular pollutant.[56] As such, the Board may consider water quality when appropriating water.[57] An appropriation may be approved to protect or enhance water quality and flow levels may be mandated to ensure water quality levels protect the beneficial uses of a water body as designated in a basin plan.[58]

In 2017, the State Board approved new Tribal Beneficial Uses (“TBU”) designations, including Tribal Tradition and Culture (“CUL”) and Tribal Subsistence Fishing (“T-SUB”).[59] The nine Regional Boards, which are responsible for assigning designations to the water bodies within their jurisdictions, are each at different stages of incorporating TBUs into their respective basin plans.[60] The TBU designations allow the Regional Boards to set water quality objectives specifically tailored to achieve traditional tribal cultural and subsistence fishing uses of water bodies.[61] The CUL and T-SUB designations require a Native American tribe to approve the designation before it can be included in a basin plan.[62]

The Forced Expulsion and State-sponsored Genocide of Native Americans in California

Prior to the colonization of the west and California, indigenous peoples structured their lives around access to California’s water bodies, including “build[ing] and maintain[ing] complex networks of irrigation ditches for agricultural purposes” and “relying on traditional ecological knowledge to enhance fish habitat, reduce pathogens, and tend to culturally important species.”[63] Native Americans used the state’s water bodies for sustenance and cultural practices.[64] For example, the Nüümü (or Paiute people) had a vast irrigation network across most of present day Owens Valley (or the Payahǖǖnadǖ Homelands) that included 60 miles of hand-dug ditches to divert water from creeks flowing out of the mountains to irrigate crops.[65] Every year, the Nüümü elected a tuvaiju, or head irrigator, who would decide what areas to irrigate and what areas to allow to recover.[66]

The Klamath Tribes (the Klamath and Moadoc Tribes and the Yahooskin Band of Snake Indians), the Yurok Tribe, and the Hoopa Valley Tribe of Native Americans have depended on salmon in the Klamath Basin for over a thousand years.[67] And the Winnemem Wintu Tribe, which translates to the “Middle Water People,” historically resided in the McCloud and upper Sacramento River watersheds and their culture and identity are “inextricably connected with the Nur, or Chinook salmon.”[68] The Pit River Nation “made annual pilgrimages to Medicine Lake in Northern California,” which is at the heart of the Pit River creation story.[69] The Shingle Springs Band of Miwok Indians, whose ancestral homelands spanned Sacramento, El Dorado, Amador, Yolo., Placer, Sutter, and Yuba Counties in northern California “stewarded and used resources from the [Sacramento-San Joaquin Delta Estuary] for sustenance, medicine, transportation, shelter, clothing, and ceremony . . . since time immemorial.”[70]

Beginning in the 1840s, however, “the nascent California state government led a program of genocide that forcibly removed Native tribes from their ancestral lands.”[71] Native Americans throughout California were massacred, displaced from their homelands, and left with nowhere to go.[72] From 1851 to 1852, U.S. Treaty Commissioners signed eighteen treaties with indigenous peoples in California, agreeing to permanently set aside approximately 8 million acres of land in exchange for Native American cession of 75 million acres of land, which the government pledged to pay for.[73] Even after the indigenous peoples left their homelands, however, Congress failed to ratify these treaties—at the request of certain California interests. Although this meant that the 75 million acres of tribal lands were never lawfully ceded, the original Native American occupants had already left, and colonizers were already claiming the land, so California’s indigenous peoples were effectively left “landless,” because they had no claim to the 8 million acres of land promised under the treaties.[74] The dispossession of lands was not isolated to the mid- to late-1800s when European settlers first arrived in California; the construction of Shasta Dam in the 1930s and 1940s “flooded over 90% of the Winnemem Wintu’s historical village sites, sacred sites, burial sites, and cultural gathering sites.”[75]

Tribal Water Rights and Tribal Water Rights Claims

Despite this history of mistreatment of Native Americans in California and elsewhere in the U.S. there are ways that tribes can and do assert their rights to water, including federal reserved water rights, treaty-based hunting and fishing rights—which includes water to fulfill those rights—and water rights claimed or acquired under state law.

The federal reserved water rights doctrine, first outlined in the 1908 U.S. Supreme Court decision Winters v. United States, recognizes that when the federal government created reservations, it impliedly reserved the right to use a sufficient amount of water to support the present and future purposes of the reservation.[76] Although states generally have control over the appropriation of water within their borders,[77] the ruling in Winters means that the federal government has the power to exempt waters from appropriation under state law.[78] In other words, federal reserved water rights “effectively get to the front of the line ahead of state water rights.”[79] Generally, the priority date of a federal reserved water right is the date that the reservation was created and such rights are not lost through non-use.[80] Federal reserved water rights can only be asserted by federally-recognized tribes with reservations, and in California, the lack of treaty ratification thus denied most tribes the best means of claiming water rights outside the context of the state’s water rights system.

Further, even where such a right may exist, difficulties in quantifying and restrictions on the use of the right make it challenging to assert a federal reserved water right in practice. For example, although Colorado River tribes on the California-Arizona border (Fort Yuma Indian Reservation, Fort Mojave Reservation, Chemehuevi Reservation, and Colorado River Reservation) have quantified federal reserved water rights, the right is limited to use on the reservation (i.e., no right to transfer or use off-reservation), unlike state appropriative rights.[81] The Colorado River tribes’ claim to water was also one of the longest-running water rights disputes, dating back to 1952 when the original action was filed in the Supreme Court of Arizona.[82] Separately, in Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, the Ninth Circuit recognized that the Agua Caliente Band of Cahuilla Indians have a federal reserved right to groundwater beneath their reservation but did not quantify the right.[83]

Tribes in the Owens Valley, including the Nüümü, have tried asserting their federal reserved rights to groundwater and surface water but have not reached a settlement because previous agreements “lacked access to ‘wet’ water, infrastructure funding, land acquisition, and the usual benefits found in water settlements.”[84] The Nüümü are also trying to assert “First User’s Rights” based on their historic diversion and use of water prior to colonization.[85] Separately, there is currently a bill pending before the U.S. Senate that would recognize and settle the water rights of the Tule River Indian Tribe, including the right to divert and use 5,828 acre-feet of water per year from the South Fork Tule River.[86] While federal reserved water rights represent an important right that some tribes are able to assert, the existence of such rights is insufficient to account for the historical injustices.

In addition to federal reserved water rights attaching to reservations, some tribes have treaty-based hunting and fishing rights associated with their reservations. Along with the right to take fish from water sources on their reservations, such rights also provide a non-consumptive right to water, i.e., the right to prevent other appropriators from depleting streams to the detriment of their fishing rights, and these rights have the highest priority of “time immemorial.”[87] The Klamath Tribes (the Klamath and Modoc Tribes and the Yahooskin Band of Snake Indians), the Yurok Tribe, and the Hoopa Valley Tribe all hold such fishing rights, which can prevent the consumptive use of water by other water rights’ holders when such diversions would leave insufficient water to support their hunting and fishing rights.[88] Federal laws, such as the Endangered Species Act (“ESA”), help to effectuate such tribal fishing rights by providing a standard that courts can use to determine whether a tribe’s fishing rights are being protected. For example, in Baley v. United States, the U.S. Court of Appeals for the Federal Circuit held that the tribes’ entitlement to “reasonable likelihood” or “moderate living” under their fishing right was not a lesser standard than the ESA’s “no jeopardy” requirement.[89] While tribes do not have direct control over how and where water is used under such rights, treaty-based hunting and fishing rights represent important ways in which tribes can exert some control over water resources in California. Consumptive and non-consumptive federal reserved water rights that have yet to be asserted in California could complement the assertion of tribal water quality rights as well.

Finally, tribes in California can also claim or acquire water rights under state law, i.e., under the system outlined in Part II.A. Like any other landowner in California, tribes owning riparian land can assert riparian rights, even if the reservation is also entitled to federal reserved water rights.[90] Such riparian rights are not subject to the “first in time, first in right” doctrine applicable to appropriative rights, as discussed above, and so would be relatively secure and valuable.

ANALYSIS

The analysis in this Note is broken into three sections. First, this Note argues that historical injustices against Native Americans are directly responsible for current inequities, including a lack of access to ancestral water bodies and an increased susceptibility to climate change. This history necessitates efforts to rectify the situation. A market-based reallocation of water, however, will only further entrench those injustices. And so, this Note argues that a non-market reallocation of water needs to be implemented to account for the historical treatment of Native Americans before water markets can be used to flexibly and efficiently move water between users. Finally, this Note argues that the Board has the authority to permanently alter both riparian and appropriative water rights based on an unreasonableness determination.

Historical Injustices Against Indigenous Peoples Are Responsible For Current Inequities

This section addresses two ways in which historical injustices produced current inequities.[91] First, if indigenous peoples had not been forcibly removed from their ancestral homelands, they would hold valuable riparian and appropriative water rights in California. Second, because indigenous peoples were pushed to marginal lands after being forcibly removed from their homelands, they can no longer access and protect important water bodies. Indigenous peoples also occupy lands that are more susceptible to the effects of climate change. These current manifestations of past wrongs underscore the need to work towards rectifying the status quo.

The forced removal of indigenous peoples from their homelands has had a lasting impact on land ownership.[92] This in turn impacted the control of water rights since “neither [riparian or appropriative rights] accommodate[] tribal claims based on millennia of water use and stewardship nor Native tribes’ continuous occupation of land prior to colonization and displacement.”[93] A riparian right “adhere(s) to formal ownership of property contiguous with a water source” while appropriative rights “adhere to the first non-Indigenous person to divert water and put it to so-called beneficial use.”[94] Land dispossession “erased the usage and stewardship of the water by native Californians.”[95] Further, the failure to ratify the treaties in 1851 and 1852 “robbed [Indigenous communities] of . . . federal reserved water rights that would have adhered to the treaty reservations” and the 75 million acres of unceded land were still settled, “giving [non-native settlers] access to water rights” on Indigenous lands.[96]

Accordingly, riparian water rights and the oldest appropriative water rights are “rooted in systematic and state-sponsored discrimination, exclusion, and violence against Indigenous peoples.”[97] This can concretely be seen today since most individually held water rights are owned by non-minorities.[98] The Board has also explicitly recognized that the genocide and displacement of indigenous peoples “contributed to the loss of water resources and watershed management practices that supported Native American people’s traditional food sources and ways of life.”[99] The historical treatment of Native Americans resulted in the “loss of associated water rights and other natural resources of value,” impacting tribes access to water supplies today. [100] For example, the Tule River Tribe suffers chronic water supply problems and often has insufficient access to water for drinking, basic hygiene, and sanitation and is currently working on a water rights settlement agreement with the United States Department of Interior.[101] In addition, as of 2021, thirteen tribal water systems were in violation of state and federal drinking water standards while 22 systems were at risk of violating standards in the future.[102]

As a result of being displaced from historical homelands, indigenous peoples now largely live on marginal lands that are “more exposed to climate change hazards” and represent a fraction of their historical range.[103] Adverse climate conditions such as drought, water scarcity, and air and water pollution have disproportionately large impacts on Indigenous communities.[104] For example, warming temperatures, changing precipitation patterns, and intensifying droughts throughout California have led to “an increased reliance on groundwater, degraded aquatic habitat, stressed vegetation, and less abundant wildlife.”[105] Poor water quality due to elevated water temperature and reduced flow leads to fish mortality, increased fish pathogens and diseases, and more suitable habitat for non-native fishes—all of which threaten staple food sources and culturally and spiritually important fish species.[106]

Today, there are over 100 federally recognized tribes in California.[107] Federally recognized tribes with reservations are acutely vulnerable to climate change because their lands are “locked into fixed geographical locations and land status” but are becoming unlivable, which “impact[s] cultural lifeways, sovereignty, and economic and social stability.”[108] Land dispossession also separated Native tribes from traditional homelands and harvest areas, leaving them with “limited or no control over traditional resources, and [] constrained in their ability to utilize [Tribal Ecological Knowledge].”[109] Such empirical evidence of the disparate impact of climate change on Indigenous communities is further support for the need to reallocate water resources to support tribes.

There may be some, albeit limited opportunities for certain indigenous peoples to assert federal reserved water rights, riparian rights, other senior water rights (e.g., first contact rights), or otherwise harness federal and state law to obtain more reliable and cleaner sources of water in California. For example, consumptive and non-consumptive federal reserved water rights that have yet to be asserted in California could complement the assertion of some tribal water quality rights. However, such a solution would need to be assessed on a case-by-case basis since the types of water rights that may be asserted are very fact dependent. More research is needed to understand the extent to which individual tribes have claims to senior water rights that have not been asserted. Such assertions to water are important because they provide tribes with control over important resources in a way that the solution proposed by this Note does not. However, the solution proposed by this Note can be applied more broadly.

State Water Resources Control Board Has The Authority To Reallocate Water Based On Reasonable Use Determinations

Designing a water reallocation solution that begins to account for the historical injustices requires understanding the Board’s capacity to permanently alter vested water rights, whether that be riparian or pre- and post-1914 appropriative water rights. At a broad level, the Board has the authority to curtail water rights to enforce water right priorities in times of shortage and to effectuate the constitutional mandate of reasonable use.[110]

The Board’s authority to reallocate water based on the unreasonable use of water[111] is well-established.[112] In Joslin v. Marin Municipal Water District, the California Supreme Court held that property rights in water do not include the unreasonable use of water.[113] The Court also confirmed that “what is a reasonable use of water depends on the circumstances of each case [and] state-wide considerations of transcendent importance,” including the conservation of water.[114] This authority extends to the reconsideration of previous water allocation decisions, allowing the Board to amend water rights as necessary to protect all beneficial uses.[115] An unreasonable use of water determination may be based, for example, on the amount of water that would be needed to achieve minimum flow requirements to protect beneficial uses of water bodies.[116] The Board’s ability to reassess water rights for reasonableness necessarily means that the reasonableness of water use can change through time.[117] In other words, even if a water allocation is “reasonable” when the water is first allocated, that does not preclude the Board from determining that the same use of water is unreasonable in the future. This is partly because a reasonableness determination considers state-wide water use priorities in addition to the specifics of each situation.[118] Consequently, reasonable use is dynamic, and the doctrine highlights the “fragility of [a] property right in water.”[119]

Once the Board makes a reasonableness determination necessitating the reduction of a water right, the Board may also reallocate water in a manner inconsistent with the rule of priority “when doing so is necessary to prevent the unreasonable use of water.”[120] The Board is even able to reassess water rights that have gone through prior adjudications.[121] This ability to change water rights is a recognition that “the desire for legal certainty cannot trump the need to adapt and modify water use over time.”[122] A decision by the Board to change water rights based on an unreasonableness determination is relatively durable as well since it is reviewed by courts under the arbitrary and capricious standard.[123] The Board may also enact regulations that make otherwise valid water diversions per se unreasonable use, allowing the Board to do a widespread reasonable use reassessment of water rights without having to determine the reasonableness of a water right on a case-by-case basis.[124]

Water Markets Cannot be Used Until There Is A Non-Market Reallocation of Water

As climate change further stresses water availability causing the timing and amount of precipitation to be more erratic and less predictable or reliable, the need to move water between users will be critical.[125] The impacts of climate change necessitate the ability to flexibly move water between uses, especially because water is already significantly over-allocated.[126] To avoid crisis during future droughts and to take advantage of excess water during a deluge, California needs to strengthen its capacity to efficiently and effectively reallocate water.[127] Water markets are one mechanism for alleviating water scarcity by providing financial incentives to increase water’s productivity “by enabling those willing to use less water to be compensated by those needing more water.”[128] Water markets will likely be an important tool since supply-side solutions to water scarcity (e.g., infrastructure) generally require a surplus of water or are too expensive for widescale deployment.[129] By using market mechanisms, water use is shifted from low value to high value uses. This means that during times of scarcity, water will be used by the highest value uses, thus maximizing the utility of the scarce resource.[130]

Water markets have been proposed as a tool for managing water scarcity.[131] In this context, a water market “constitutes a system of formal rules and regulations that govern the buying, selling and leasing of water [] rights that are . . . traded independent of land titles.”[132] The advantages of a market for managing water include using market forces to encourage the efficient use of a scarce resource, less need to build new water infrastructure, and no reliance on government regulations, which can be politically unpopular.[133] Because markets create a tradeable property right, they discourage wasteful use of water that could otherwise be sold to other users.[134] By encouraging the most efficient use of water, water markets also “tend to delay the . . . develop[ment] of new supplies.”[135] Markets do not require the political system to make complex decisions about resource allocation and instead places such responsibility “with the owners of the water [] rights.”[136] An important prerequisite for a successful water market, however, is the equitable initial allocation of the resource.[137] Otherwise, markets will only serve to further entrench the unjust and racist allocation of water that currently exists.[138]

Markets in general benefit the holders of valuable property rights even if the initial allocation does not matter for overall cost-effectiveness.[139] Here, if water markets are implemented under the status quo, it will benefit the holders of valuable and secure water rights, including those perfected in the late 1800s and early 1900s. In a market scenario, tribes would be left to purchase water on the open market, competing with other users who may have higher purchasing power and thus a higher “value” of water use. Consequently, the current allocation of water has implications for how costs and benefits will be distributed amongst market participants.[140] For this reason, water markets should not be implemented until prior injustices are at least partially mitigated.

SOLUTION

To address the current inequities of California’s water rights and water allocation regime, this Note proposes the use of TBU designations to catalyze the reallocation of water in ways that benefit Native tribes. This solution, however, does not provide tribes with direct control over water. While creating a tribal beneficial use appropriative water right under state law allowing tribes to control water rights and have autonomy over water use may be the ideal goal, this Note will explore how such a strategy is less feasible in the short term.[141] Utilizing TBU designations to set water quality objectives that require minimum flow requirements is thus an appropriate alternative solution.

TBU Designations Can Reallocate Water by Altering Vested Water Rights To Achieve Water Quality Objectives Tailored To Support Tribal Uses and Needs.

Tribal Beneficial Use (“TBU”) designations present one strategy to reallocate water without further perpetuating the inequitable and racist history of water allocation in California. Because of the equity concerns around the current allocation of water and the potential for water markets to further entrench that inequity, a non-market redistribution of water is necessary. One strategy is to designate water bodies as TBU and set water quality objectives to achieve the TBU.[142] The Regional Boards would then design implementation programs outlining actions to achieve the water quality objectives.[143] Here, as part of the implementation programs, the Regional Boards would set minimum flow requirements necessary to support the TBUs and call for the curtailment of water rights in order to maintain the minimum flow requirements. Any diversions in excess of the minimum flow requirements would be an unreasonable use of water subject to reduction. As explored in Section III.B, there is no valid right to an unreasonable use of water. A reassessment and subsequent reduction in the amount of water that can be used by a water right based on TBU designations will allow the Board, the state agency charged with administering and enforcing the water rights system, to ensure that water is being used in a reasonable and beneficial manner in line with their statutory mandate.[144] Further, it would allow water bodies to be managed in a way that supports tribal uses.

This strategy is not perfect and does not fully or comprehensively rectify the cascade of injustices and inequities that followed the state-sponsored genocide and dispossession of indigenous peoples from their ancestral homelands. It may be far better to create a tribal beneficial use water right under state law, giving tribes direct possession of and autonomy over water.[145] This would be distinct from federally recognized tribes exercising senior water rights under the federal reserved rights doctrine, which should also be explored.[146] Such a solution, however, is not currently politically feasible and would require the state to recognize a new form of water right. New appropriations, like all appropriative water rights, are subject to the “first in time, first in right” doctrine and so would be curtailed first during times of scarcity.[147] This means that even if tribes were allocated a certain amount of water on paper, when there is a drought or insufficient supplies, their water right would be curtailed first. Since water is already over-allocated in the state, allocating water under a new water right would likely necessitate the re-allocation of water to some degree. Without a clear unreasonableness determination, it is unclear how the Board could unilaterally reallocate water to a new water right.[148] And even assuming there was water available to allocate under a new water right, determining the amount of water that a tribe is entitled to may pose challenges since such a decision is not grounded in a scientific determination related to water quality.[149]

The TBU solution is not only legally feasible, but also relatively pragmatic and not overly burdensome. As alluded to in Section III.B, altering water rights to ensure compliance with water quality objectives is not a taking requiring just compensation.[150] There is no takings claim when a water right is reduced based on an unreasonable use of water because there is no vested right in the unreasonable use of water.[151] Further, a TBU solution would not require an adjudicatory or evidentiary hearing for each water right that is reduced since per se reasonableness determinations are legislative in nature.[152] For example, in Stanford Vina Ranch Irrigation Company v. State, the court upheld the Board’s ability to pass regulations that make otherwise valid diversions per se unreasonable under Article X Section 2 of California’s constitution.[153] In that case, the Board adopted an emergency regulation under Water Code section 1058.5 mandating minimum flow requirements to protect endangered fish species.[154] As the court notes, such a regulation would apply equally to all water rights, whether riparian or pre- or post-1914 appropriative rights.[155] The court also held that issuing curtailment orders was a proper implementation of the valid minimum flow requirement regulation and did not constitute a taking since there is no vested right to divert an unreasonable amount of water.[156] Importantly, implementation of such a regulation likely must be applied to all diversions so as not to violate the rule of priority. Proper exercise of the Board’s authority under Article X Section 2 constitutes a legitimate exercise of police power, rather than eminent domain.

Under this solution, grounding the determination that diversions are unreasonable based on minimum flow requirements to achieve water quality objectives is important and allows the Board to avoid an evidentiary hearing to review water rights on a case-by-case basis. In California Water Curtailment Cases, the court held that curtailment of water rights would have violated due process rights by failing to provide an opportunity to challenge the curtailments.[157] In that case, however, the curtailment was not based on an underlying regulation and so the unreasonableness determination was not legislative in nature, unlike in Stanford Vina.[158] As discussed in Part II.B, designating a water body with a specific “beneficial use,” including a TBU designation, requires formal amendments to basin plans.[159] These basin plans act as the guiding water quality regulations for the Board and the nine Regional Boards.[160] This is important because water quality objectives in the plans would create a strong presumption that inconsistent uses are unreasonable diversions of water[161] rather than requiring the Board to hold an evidentiary hearing every time it reassessed a water right for reasonableness under new water quality objectives.

Currently, four of the nine Regional Boards have adopted TBU definitions in their basin plans and five Regional Boards are currently engaging with tribes to designate waterbodies as TBUs.[162] Once TBU designations are finalized, the Regional Boards can design implementation plans that achieve TBU water quality objectives by altering vested water rights, making the solution proposed by this Note timely and practical. There may also be opportunities to implement the proposed solution where tribes hold federal reserved water rights prior to the finalization of TBU designations. In April 2024, the U.S. Environmental Protection Agency finalized a rule revising federal water quality standards regulation to protect tribal reserved rights.[163] The rule requires states to consider treaty-based or tribal statutory rights to aquatic resources when setting water quality standards, including taking tribal reserved rights into account when adopting or revising designated water uses, considering the future exercise of these rights unaffected by water quality, and establishing water quality criteria to protect these rights where applicable.[164]

CONCLUSION

Tribal Beneficial Use designations should be used to guide the setting of water quality objectives, with the ultimate goal of reallocating water to benefit indigenous peoples. Implementation programs for achieving water quality objectives should involve the setting of minimum flow requirements that make diversions per se unreasonable to the extent that they prevent the minimum flow from being met. This has the impact of not only achieving the TBU designations of water bodies but also reallocating water in an efficient manner. While such a strategy does not correct for all past wrongs, it is a partial solution. As is required before designating a water body as a TBU, tribes need to be involved in all stages of this processes, particularly at the outset when identifying the water bodies that should be prioritized. In addition to using TBUs to reallocate water, the potential to create a tribal beneficial use water right under state law for appropriative water rights as well as allowing tribes to fully exercise their federally reserved water rights should be examined.

NOTES

[1] Alina Werth is a rising 3L at UC Davis School of Law, where she studies water and environmental law. This article won the 2024 California Water Law Writing Prize sponsored by the California Water Law Symposium and University of the Pacific, McGeorge School of Law.  

[2] See Groundwater Issue: Supply, State Water Res. Control Bd., (last updated Apr. 11, 2023), https://www.waterboards.ca.gov/water_issues/programs/groundwater/issue_supply.html#:~:text=During%20a%20typical%20year%2C%20approximately,of%20drought%20and%20climate%20change. This Note deals exclusively with the management of surface water but understands that surface water and groundwater are inextricably tied together.

[3] See Jeffrey Mount & Ellen Hanak, Water Use in California, Public Pol’y Inst. of Cal. (May 2019), https://cwc.ca.gov/-/media/CWC-Website/Files/Documents/2019/06_June/June2019_Item_12_Attach_2_PPICFactSheets.pdf.

[4] See Theodore E. Grantham & Joshua H. Viers, 100 years of California’s Water Rights System: Patterns, Trends and Uncertainty, Environ. Res. Lett. 2 (2014) (the State Water Resources Control Board “has issued water rights that amount to over five rimes the state’s average supply”).

[5] See id. at 1.

[6] See id. (“climate models predict that much of arid and semi-arid western North America is likely to become warmer and perhaps drier in the future” and “California is projected to have decreased snowpack”).

[7] See Will Rafey, Droughts, Deluges, and (River) Diversions: Valuing Market-Based Water Reallocation, 113 (2) American Economic Review, 430-471 (2023) (arguing that water markets will play a role in the reallocation of water); see also Grantham & Viers, supra note 4 at 1 (“In arid regions such as California, over-allocation of surface water coupled with trends of decreasing supply suggest that new water demands will be met by re-allocation from existing uses.”).

[8] See A Liquid Market: In the Face of Climate Change and Extended Drought, a New Market Tool Makes It Easier to Manage Water for Nature and People, The Nature Conservancy (Mar. 6, 2020) https://www.nature.org/en-us/about-us/where-we-work/united-states/california/stories-in-california/water-markets/#:~:text=Markets%20allow%20flexibility%20in%20times,unpredictability%20of%20California’s%20water%20supply.

[9] Cal. Water Code Division 2 (requires a water right to take water from a lake, river, stream, or creek).

[10] See generally Benjamin Madley, An American Genocide: The United States and the California Indian Catastrophe (2017) (provides a history of California from 1846 to 1873, focusing on the violence against indigenous communities when California was settled); Application by Winnemem Wintu Tribe, Shingle Springs Band of Miwok Indians, Little Manila Rising, and Restore the Delta for leave to file Amicus Curiae brief and brief in support of State Water resources Control Board, California Water Curtailment Cases, 83 Cal.App.5th 164 (Cal. Ct. App. 2022) (identifying the connection between European settlers arriving in California, the beginnings of California’s water rights regime, and the state-sponsored genocide of indigenous communities).

[11] The terms tribe, tribal community, California Indian, Native American, and indigenous peoples are used interchangeably throughout this Note based on the varying language that different sources use.

[12] See Madley, supra note 10; see also Title VI Complaint and Petition for Rulemaking for Promulgation of Bay-Delta Water Quality Standards, 13-15 (2022).

[13] See Madley, supra note 10.

[14] This would include any reallocation scheme that condemns water rights but compensates the water rights holder.

[15] Daniel W. Bromley, Land and Water Problems: An Institutional Perspective, 62 Am. J. Agric. Econ. 834, 837 (1982) (water markets are built on “prevailing property arrangements, technical conditions, and the wealth positions of buyers and sellers”); Karrigan Bork and Sonya Ziaja, Amoral Water Markets, 111 Georgetown L. J.  1335 (2023).

[16] See Barton H. Thompson, Jr., John D. Leshy, Robert H. Abrams, Sandra B. Zellmer, Legal Controls of Water Resources: Cases and Materials 205 (6th ed. 2018).

[17] See Roderick E. Walston, California Water Law: Historical Origins to the Present, 29 Whittier L. Rev. 765, 767-768 (2008).

[18] Id. at 768.

[19] See id. at 767. Compared to appropriative rights, Lux v, Haggin recognized riparian rights as paramount to all other water rights. 69 Cal. 255 (Cal. Supreme Court 1884).

[20] 69 Cal. 255, 309-92 (Cal. Supreme Court 1886).

[21] See Walston, supra note 17 at 768 (the appropriative water rights system in California began during the gold rush, when miners needed use water on land that was not appurtenant to water bodies).

[22] See id.

[23] See id. at 769.

[24] See State Water Resources Control Board, Fact Sheet: Purposes of Use for Underground Storage Projects (June 2020) https://www.waterboards.ca.gov/waterrights/water_issues/programs/applications/docs/purposes_of_use_fact_sheet_final.pdf.

[25] See Walston, supra note 17 at 769.

[26] Cal. Water Code § 1707.

[27] See id.

[28] See id.

[29] Light v. State Water Resources Control Board, 226 Cal.App.4th 1463, 1478 (Cal. App. 2014).

[30] Id.

[31] The State Water Resources Control Board was originally called the State Water Commission.

[32] See Christian Smit, The Reasonable Use Doctrine, the Public Trust Doctrine, and Surface Water Rights in California: Exploring the frontiers of water rights reform in an era of scarcity and instability, 45 Environs 71, 77 (2021).

[33] See Cal. Water Code § 1200 et seq.; see also State Water Resources Control Board, Water Rights Applications: Permitting and Licensing Program, https://www.waterboards.ca.gov/waterrights/water_issues/programs/applications/.

[34] See People v. Shirokow, 26 Cal.3d 301, 309 (Cal. Supreme Court 1980).

[35] Cal. Water Code § 100.

[36] Cal. Const. art. X, § 2.

[37] National Audubon Society v. Superior Court, 33 Cal.3d 419, 442 (Cal. Supreme Court 1983).

[38] Cal. Const. art. X, § 2.

[39] See id.

[40] Brian E. Gray, The Reasonable Use Doctrine in California Water Law and Policy, in Allison Lassiter (ed.), Sustainable Water: Challenges and Solutions from California, University of California Press 85 (2015) (referring to the holding in Joslin v. Marin Municipal Water District (1967)).

[41] Cal. Water Code Division 1-2; see also Walston, supra note 17; Gray, supra note 36 at 86 (the Board was created “for the express purpose of implementing and enforcing the constitutional reasonable use mandate”).

[42] See Environmental Defense Fund, Inc. v. East Bay Mun. Utility, 26 Cal.3d 183, 200 (1980) (“Apart from overriding considerations such as are presented by health and safety dangers involved in the reclamation of waste water, we are satisfied that the courts have concurrent jurisdiction with the legislatively established administrative agencies to enforce the self-executing provisions of article X, section 2.”); Cal. Water Code, § 275.

[43] National Audubon Society v. Superior Court, 33 Cal.3d 419, 434 (Cal. Supreme Court 1983).

[44] Id. at 437.

[45] Id.

[46] Id. at 442.

[47] Cal. Water Code, § 13000 et seq. The Board is also California’s lead agency under the federal Clean Water Act, but the federal water quality requirements will not be addressed in this Note. The federal Clean Water Act has many of the same elements as the Porter-Cologne Act.

[48] Cal. Water Code, §§ 13240-13242.

[49] Cal. Water Code, § 13050(f).

[50] See State Water Resources Control Board, Basin Plan Portal (last updated Oct. 13, 2020) https://www.waterboards.ca.gov/resources/data_databases/basin_plan_portal.html.

[51] Cal. Water Code, § 13240.

[52] Cal. Water Code, § 13241(a).

[53] Cal. Water Code, § 13240.

[54] State Water Resources Control Board, Report in Support of U.S. Environmental Protection Agency’s Review of California’s Continuing Planning Process 7 (May 2001).

[55] See LaJuana Wilcher, The Connection Between Water Quality and Water Quantity, 2, Natural Res. Law Ctr., Univ. Of Colo. Sch. Of Law 1991 (“As population and economic growth result in increased water diversions and consequent reductions in flows, maintenance of water quality and aquatic systems has become more difficult.”).

[56] Gregory S. Weber, The Role of Environmental Law in the California Water Allocation and Use System: An Overview, 25 Pac. L. J.  907, 944, 950 (1994); see also William A. Attwater & James Markle, Overview of California Water Rights and Water Quality Law, 19 Pac. L. J. 957, 1025 (1988).

[57] See Cal. Water Code, §§ 1242.5, 1243, 1243.5, 1257, 1257.5, 1258.

[58] See Cal. Water Code, §§ 1242.5, 1243, 1243.5, 1257, 1257.5, 1258.

[59] State Water Resources Control Board Resolution No. 2017-0027 (Tribal Tradition and Culture (CUL) protects “uses of water that support cultural, spiritual, ceremonial, or traditional rights or lifeways of California Native American Tribes” and Tribal Subsistence Fishing (T-SUB) protects “uses of water involving non-commercial catching or gathering of natural aquatic resources.” At the same time, the Board recognized a third beneficial use, Subsistence Fishing (SUB), to generally support people and communities engaged in subsistence fishing.).

[60] See State Water Resources Control Board, Regional Water Board Progress Updates on Tribal Beneficial Uses (last updated Oct. 20, 2023), https://www.waterboards.ca.gov/tribal_affairs/regional_tbu_updates.html.

[61] California Water Boards Tribal Beneficial Uses Guidance Document, https://www.waterboards.ca.gov/tribal_affairs/docs/2022/tbu-basin-amendment-09202022.pdf.

[62] Id. at 5.

[63] See Mike Godbe, An Overview of Indian Water Rights in California – Part 1 California State Law, (July 7, 2021) https://www.calindian.org/an-overview-of-indian-water-rights-in-california-part-1-california-state-law/; Owens Valley Indian Water Commission, A History of Water Rights and Land Struggles, https://www.oviwc.org/water-crusade/ (including the Nüümü people (Paiute-Shoshone) of Payahuunadu or “land of flowing water”, which is known today as the Owens); Title VI Complaint and Petition for Rulemaking for Promulgation of Bay-Delta Water Quality Standards, 13 (Dec. 2022).

[64] See Kate Poole, California’s Wildly Inequitable Water Rights System, National Resources Defense Council (Oct. 11, 2021) https://www.nrdc.org/bio/kate-poole/californias-wildly-inequitable-water-rights-system#:~:text=In%20reality%2C%20of%20course%2C%20Native,Medicine%20Lake%2C%20to%20the%20reliance.

[65] Teri Red Owl, Payahǖǖnadǖ Water Story, The Claremont Colleges Library https://pressbooks.claremont.edu/westernwatersymposium/chapter/payahuunadu-water-story/.

[66] Id.

[67] Baley v. United States, 942 F.3d 1312, 1342 (Fed. Cir. 2019); Press Release, EarthJustice, Yurok Tribe and Fishermen Sue to Protect Klamath Salmon (March 27, 2023) https://earthjustice.org/press/2023/yurok-tribe-and-fishermen-sue-to-protect-klamath-salmon#:~:text=The%20Yurok%20Tribe%2C%20whose%20culture,that%20are%20the%20foundation%20of.

[68] Title VI Complaint and Petition for Rulemaking for Promulgation of Bay-Delta Water Quality Standards, 6 (Dec. 2022).

[69] Levy Uyeda, Climate Change is endangering sacred land. For these Native women, it threatens ‘everything we are.’, The Lily (July 30, 2021), https://www.thelily.com/climate-change-is-endangering-sacred-land-for-these-native-women-it-threatens-everything-we-are/?fbclid=IwAR3ugSpoaV6HhDd3hKktwtjPV00rfi4c_wjCV8PK-_ubUiGRpSVVyTI1g4M.

[70] Title VI Complaint and Petition for Rulemaking for Promulgation of Bay-Delta Water Quality Standards, 4-5 (Dec. 2022).

[71] See Title VI Complaint and Petition for Rulemaking for Promulgation of Bay-Delta Water Quality Standards, 13 (Dec. 2022); see also Application by Winnemem Wintu Tribe, Shingle Springs Band of Miwok Indians, Little Manila Rising, and Restore the Delta for leave to file Amicus Curiae brief and brief in support of State Water resources Control Board, California Water Curtailment Cases, 83 Cal.App.5th 164 (Cal. Ct. App. 2022), 13; (“California’s current water rights system is tied to the conquest of California by the United States from Mexico (1848) and the enormous influx of settlers during the Gold Rush (1848-1855). The 1826 Homestead Act, for example, allowed adult citizen heads of households to gain ownership of piece of land by occupying and ‘improving’ it for a period of five years.”).

[72] See Poole, supra note 54.

[73] See Larisa K. Miller, The Secret Treaties with California’s Indians, Prologue Magazine National Archives, 45 (3/4), 39 (2013) https://www.archives.gov/publications/prologue/2013/fall-winter.

[74] Id.; Title VI Complaint and Petition for Rulemaking for Promulgation of Bay-Delta Water Quality Standards, 15 (Dec. 2022). Today it is estimated that only 1% of California, or approximately 650,000 acres of land, is under the ownership of California tribes.

[75] Title VI Complaint and Petition for Rulemaking for Promulgation of Bay-Delta Water Quality Standards, 6 (Dec. 2022).

[76] See generally Winters v. U.S., 207 U.S. 564 (1908).

[77] See supra Part IA.

[78] Robert T. Anderson, Water Rights, Water Quality, and Regulatory Jurisdiction in Indian Country, 34 Stan. Envtl. L.J. 195, 207 (2015).

[79] Id.

[80] Mike Godbe, An Overview of Indian Water Rights in California – Federal Winters Rights, California Indian Legal Services (Aug. 17, 2021), https://www.calindian.org/an-overview-of-indian-water-rights-in-california-part-2-federal-winters-rights/ (discussing how federal reserved water rights fit into appropriate and riparian waters regimes).

[81] Arizona v. California, 547 U.S. 150, 157-158 (2006).

[82] Arizona v. California, Environment and Natural Resources Division U.S. Department of Justice (updated Jun. 2023), https://www.justice.gov/enrd/indian-resources-section/arizona-v-california.

[83] Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, 849 F.3d 1262, 1273 (also holding that the Winters doctrine applies to groundwater in addition to surface water).

[84] Negotiations of Water Rights, Owens Valley Water Commission, http://www.oviwc.org/water-crusade/.

[85] Id.; see supra Part II.C (last visited Mar. 20, 2024).

[86] Tule River Tribe Reserved Water Rights Settlement Act of 2023, S. 306, 118th Cong. (2023).

[87] See Baley v. United States, 942 F.3d 1312, 1341 (2019) (holding that “appellants’ water rights were subordinate to the Tribes’ federal reserved water rights”).

[88] Id. at 1332.

[89] Id. at 1337.

[90] In re Water of Hallett Creek Stream System, 44 Cal.3d 448, 470 (1988) (concluding that “the riparian water rights of the United States on its reserved national forest lands in California are as fully immune from defeasance as the riparian rights of a private owner”).

[91] This is not meant to be an exhaustive accounting of the inequities that are a product of the historical treatment of Native Americans.

[92] See supra Part II.C.

[93] Id.

[94] Title VI Complaint and Petition for Rulemaking for Promulgation of Bay-Delta Water Quality Standards, 15 (Dec. 2022) (removed internal parenthetical).

[95] See Poole, supra note 54 (“most other races and genders were not allowed to own property during the height of the prior appropriation era”); Madley, supra note 10.

[96] Title VI Complaint and Petition for Rulemaking for Promulgation of Bay-Delta Water Quality Standards, 15 (Dec. 2022); Stanford Environmental Law Clinic, ELC Supports Efforts by Tribes and Environmental Justice Advocates to Reframe California Water Rights (March 16, 2022) https://law.stanford.edu/2022/03/16/elc-supports-efforts-by-tribes-and-environmental-justice-advocates-to-reframe-california-water-rights/.

[97] See Stanford Environmental Law Clinic, supra note 79.

[98] Ninety-one percent of individually held water rights are held by someone with a white-classified last name. Megan Fidell and Paul Shipman, Who makes decisions about California’s water? (Jan. 9, 2023) https://www.restorethedelta.org/wp-content/uploads/2023-Fidell-Who-Makes-Decisions-about-Californias-Water.pdf.

[99] State Water Resources Control Board Resolution No. 2021-0050, Condemning Racism, Xenophobia, Bigotry, and Racial Injustice and Strengthening Commitment to Racial Equity, Diversity, Inclusion, Access, and Anti-Racism, 3 (2021).

[100] Id.

[101] Lisa McEwen, Tule River tribe suffers chronic water problems, even in record wet years, Visalia Times Delta (Sept. 14, 2023 2:14 am PST), https://www.visaliatimesdelta.com/story/news/2023/09/14/tule-river-tribe-suffers-chronic-water-problems-in-record-wet-year/70843624007/; Tule River Tribe seeks $6.6 million from state to deal with immediate water crisis, The Recorder (Aug. 29, 2022), https://www.recorderonline.com/news/tule-river-tribe-seeks-6-6-million-from-state-to-deal-with-immediate-water-crisis/article_9851a5fc-27b7-11ed-8bf7-4be52f5301e1.html. The Tule River Tribe Reserved Water Rights Settlement Act of 2023, introduced by California Senator Alex Padilla in February 2023, would help to alleviate water supply issues by confirming a 2007 settlement agreement between the tribe, the South Tule Independent Ditch Company, and the Tule River Association, as well as create a trust fund the tribe can use for water projects. Tule River Tribe Reserved Water Rights Settlement Act of 2023, S. 306, 118th Cong. (2023).

[102] 2021 Drinking Water Assessment, Tribal Needs Assessment Results, California State Water Resources Control Board, 31 (2021).

[103] Christopher Flavelle, Forced Relocation Left Native Americans More Exposed to Climate Threats, Data Show, The New York Times (Oct. 28, 2021), https://www.nytimes.com/2021/10/28/climate/native-americans-climate-change-effects.html (summarizing a study that found that the lands belonging to tribes on average account for just 2.6% of the size of their historical lands and are less hospitable); see also Justin Farrell, Paul Berne Burow, Kathryn McConnell, Jude Bayham, Kyle Whyte, Gal Koss, Effects of land dispossession and forced migration on Indigenous peoples in North America, Science, 374 (6567), 6, 6 (2021) (study compared the impact of climate change on tribes’ historical and present-day lands).

[104] Tribal and Indigenous Communities, Fourth Climate Change Assessment 11 (2019) https://www.energy.ca.gov/sites/default/files/2019-11/Statewide_Reports-SUM-CCCA4-2018-010_TribalCommunitySummary_ADA.pdf.

[105] Indicators of Climate Change in California, VII-2 (2022).

[106] Id. at VII-3.

[107] California Courts Judicial Branch of California, California Tribal Communities  https://www.courts.ca.gov/3066.htm#:~:text=California’s%20Indian%20Tribes&text=How%20many%20California%20tribes%20are,lands%20that%20cross%20state%20boundaries (last visited Nov. 23, 2023). There are also approximately fifty-five tribes that lack federal recognition in California. Debra Utacia Krol, Can Native American Tribes Protect Their Land if They’re not Recognized by the Federal Government? The Revelator (March 12, 2019) https://therevelator.org/native-american-tribes-protect-land/#:~:text=Then%2C%20in%20the%201950s%2C%20Congress,to%20the%20Government%20Accountability%20Office.

[108] Tribal and Indigenous Communities, Fourth Climate Change Assessment 12 (2019) https://www.energy.ca.gov/sites/default/files/2019-11/Statewide_Reports-SUM-CCCA4-2018-010_TribalCommunitySummary_ADA.pdf.

[109] Id.

[110] See supra Part II.A.

[111] Light v. State Water Resources Control Board, 225 Cal.App.4th 1463, 1482 (Cal. App. 2014) (“The Board is charged with acting to prevent unreasonable and wasteful uses of water, regardless of the claim of right under which the water was diverted.”).

[112] United States v. State Water Resources Control Board, 182 Cal.App.3d 82 (Cal. 1986) (also referred to as the Racanelli Decision).

[113] Joslin v. Marin Municipal Water District, 67 Cal.2d 132, 145 (Cal. 1967) (“[S]ince there was and is no property right in an unreasonable use, there has been no taking or damaging of property by the deprivation of such use and, accordingly, the deprivation is not compensable.”).

[114] Id. at 140.

[115] United States v. State Water Resources Control Board, 182 Cal.App.3d at 127-129 (upholding the Board’s authority under Article X Section 2 to modify Central Valley Project and State Water Project permits as necessary to achieve revised water quality standards; “[c]urtailment of project activities through reduced storage and export was eminently reasonable and proper to maintain the required level or water quality in the Delta”).

[116] Stanford Vina Ranch Irrigation Company v. State of California, 50 Cal.App.5th 976, 984 (Cal. App. 2020) (riparian rights were at issue here and the Board established minimum flow requirements via the issuance of temporary emergency regulations to protect endangered species and temporary curtailment orders to maintain a minimum flow of water).

[117] Light v. State Water Resources Control Board, 225 Cal.App.4th at 1482.

[118] Joslin v. Marin Municipal Water District, 67 Cal.2d at 140.

[119] See Gray, supra note 36 at 85 (“A use of water may have been lawful when established . . . may become unreasonable as conditions change.”).

[120] Light v. State Water Resources Control Board, 225 Cal.App.4th at 1489 (citing El Dorado Irrigation Dist. v. State Water Resources Control Bd. 142 Cal.App.4th 937, 966 (Cal. App. 2006)).

[121] See Stanford Vina Ranch Irrigation Company v. State of California, 50 Cal.App.5th at 1007 (rejecting argument that Board’s curtailment of water rights “violated a prior judicial decree adjudicating the [appellant’s] water rights”).

[122] Russell M. McGlothlin and Jena Shoaf Acos, The Golden Rule* of Water Management, 9 Golden Gate University Env’tl L. J. 109, 116 (2015).

[123] Stanford Vina Ranch Irrigation Company v. State of California, 50 Cal.App.5th at 984.

[124] Light v. State Water Resources Control Board, 225 Cal.App.4th at 1484-1485 (here, the Board said that any water use inconsistent with the local regulatory regime is unreasonable and prohibited).

[125] See J. A. Duran-Encalada, A. Paucar-Caceres, E. R. Bandala, G. H. Wright, The impact of global climate change on water quantity and quality: A system dynamics approach to the US-Mexican transborder region, European Journal of Operational Research 256 (2017); A.C. Lute et al., Projected Changes in Snowfall Extremes and Interannual Variability of Snowfall in the Western United States, 51 Water Res. Rsch. 960, 969-70 (2015); Brian Richter, Water Share: Using water markets and impact investment to drive sustainability, The Nature Conservancy, 9 (2016).

[126] Water rights account for up to 1000% of natural surface water supplies. See Grantham & Viers, supra note 4.

[127] Nell Green Nylen, Dave Owen, Jennifer Harder, Michael Kiparsky, Michael Hanemann, Managing Water Scarcity: A Framework for Fair and Effective Water Right Curtailment in California 5 (Berkeley Law Center for Law, Energy, & the Environment April 2023).

[128] See Richter, supra note 68 at 10.

[129] See id. at 9.

[130] See id.

[131] Peter Debaere, Briand D. Richter, Kyle Frankel Davis, Melissa S. Duvall, Jessica Ann Gephart, Clark E. O’Bannon, Carolyn Pelnik, Emily Maynard Powell, and Tyler William Smith, Water markets as a response to scarcity, Water Policy (2014) 16(4) 625-649, 625 (“Water management responses to scarcity have been dominated by supply-side engineering, focused on the construction of reservoirs, canals, pipelines, wells and other infrastructure. In recent years, however, due to the rising cost of water supply projects and growing environmental concern, there has been a marked shift toward economic innovations, including strategies to manage water demand.”).

[132] Id. at 626.

[133] Larry D. Simpson, Are “Water Markets” a Viable Option? 30 (International Monetary Fund, Finance & Development 1994).

[134] See id. (“Water markets provides these stakeholders with the ability to control decision making and the opportunity to derive financial benefits.”).

[135] See id.

[136] Id.

[137] Id. at 32 (“a fair and equitable system of initial allocation of the use of water must be implemented, recognizing historical uses but not rewarding waste”).

[138] See supra Section II.C.

[139] See Terence R. Lee, Andrei S. Jouravlev, Prices, Property and Markets in Water Allocation 20 (United Nations Economic Commission for Latin America and the Caribbean 1998) (noting that “there is no particular reason to expect that a water market will necessarily result in an equitable allocation of water resources”).

[140] See id. at 25-26 (“Alternative initial assignments of water rights among individual users, local governments, environmental protection agencies, ethnic groups, etc. will result in entirely different sets of bargaining relationships.” “Market outcomes depend on the initial distribution of rights.”).

[141] Subject to relevant legislative and regulatory limitations.

[142] Water bodies can have more than one beneficial use designation, in which case the water quality objective would be set to achieve the most sensitive use. California Water Boards Tribal Beneficial Uses Guidance Document 7 (2022) https://www.waterboards.ca.gov/tribal_affairs/docs/2022/tbu-basin-amendment-09202022.pdf.

[143] Id. at 8.

[144] Cal. Water Code § 100 (“The right to water or to the use of flow of water in or from any natural stream or watercourse 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 unreasonable use or unreasonable method of use of unreasonable method of diversion of water.”).

[145] This is a general statement in acknowledgement that Native American tribes may not want to “own” or “possess” property under the California legal regime. This Note does not try to attempt to know what Native American tribes may want.

[146] See supra Section II.D.

[147] See supra Section II.A.

[148] See supra Section I and Section II.C.

[149] Judith Dworkin, Courts Have Much to Resolve in Determining Indian Water Rights, 36 Nat. Resources & Env’t 39, 42 (2022)

[150] Stanford Vina Ranch Irrigation Company v. State of California, 50 Cal.App.5th at 1007.

[151] Id.; see also Joslin, 67 Cal.2d at 145 (“[S]ince there was and is no property right in an unreasonable use, there has been no taking or damaging of property by the deprivation of such use and, accordingly, the deprivation is not compensable.”)

[152] Stanford Vina Ranch Irrigation Company v. State of California, 50 Cal.App.5th at 1004 (due process does not require “the Board to hold an evidentiary hearing before engaging in the legislative function of promulgating a regulation defining diversions of water under certain emergency circumstances to be per se unreasonable”).

[153] Id. at 1005.

[154] Id. at 1003.

[155] Id. at 1008.

[156] Id. at 984.

[157] California Water Curtailment Cases, 83 Cal.App.5th 164, 178 (Cal. Ct. App. 2022).

[158] See Stanford Vina Ranch Irrigation Company v. State of California, 50 Cal.App.5th at 1004.

[159] See supra Part II.B.

[160] Id.

[161] See generally United States v. State Water Resources Control Bd., 182 Cal.App.3d 82 (Cal. Ct. App. 1986) (holding that exercise of Central Valley Project and State Water Project permits were unreasonable because diversions violated water quality standards for the Sacramento-San Joaquin Delta).

[162] Tribal Affairs 2023 Annual Report, California Water Boards 14-15 (2023) https://www.waterboards.ca.gov/about_us/public_participation/tribal_affairs/docs/2024/tap-annual-report-2023-final.pdf.

[163] Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights, 89 Fed. Reg. 35717 (May 2, 2024) (to be codified at 40 C.F.R. 131).

[164] Id.