Ripple Effects

*** The following transcript reflects an earlier broadcast of this episode. Some language may differ from the rebroadcast version. ***

PETER ONUF: For the past seven months, California has been in a declared state of emergency, triggered by a third year of drought. But in that time, the crisis has only gotten worse. This week, federal authorities reported that more than half the state is under what they call “exceptional drought conditions,” up from about 1/3 the week before.

How are Californians responding to the crisis? Well, despite a plea from Governor Jerry Brown for a 20% cut in water use, statewide consumption reportedly went up in the first half of this year.

ED AYERS: Now, it’s tempting to point fingers, and there have been recriminations a plenty as the crisis has deepened, but scaling back on the individual level for the good of the whole, well, that’s a challenge that has bedeviled many prior generations of Americans, as well.

And so today on the show, we’re giving the drought the BackStory treatment, and asking what past struggles around water usage can tell us about the situation today.

PETER ONUF: The story we just heard about the battle over water in LA may sound like a tale from the lawless Wild West. But in fact, the city’s attempts to grab as much water as it can has a firm basis in American law. And to understand that law, we need to go back east.

Throughout the colonial period, people there had been relying on streams and rivers to power their mills. But when smaller mill operation started scaling up and building dams of their own, well, mill owners downstream cried foul. In the 1790s, they started taking their disputes to court, appealing to an old English law principle known as “riparian rights.”

ED AYERS: “Riparian” comes from the Latin term “ripa” or bank. And that principal essentially says that anyone who owns land bordering a body of water has rights to use that water. And that sounds straightforward enough, I guess, but legal scholar Dan Tarlock told me that in practice, things quickly got complicated.

DAN TARLOCK: Riparian rights is actually a very incoherent theory. Everybody who’s a riparian has an equal right to use the water in the stream. But the law doesn’t go too far beyond that, so the mills that faced decreased current begin to sue, basically, the mill that had messed with the stream.

But there was so much water in the East that you really didn’t get too many serious conflicts over the use of water.

ED AYERS: So the East is, in fact, a very wet place. But the West, as you know, is not. What happened to this law as Americans migrated to the West?

DAN TARLOCK: Yeah. Well, the Gold Rush started in 1847, with the discovery of gold at Sutter’s Mill. When the miners began to really do serious gold mining, which meant pumping water out of a stream, and blasting away hillsides to find the gold.

ED AYERS: Wow.

DAN TARLOCK: So forget the romantic image of the miner standing in a stream with a pan. And what the miners were doing, they were first taking it out of the stream, and they were transporting it to some distance through flumes. And so they were taking it off the land next to the stream. And in theory, you can’t do that in riparian rights.

So when it reached the California courts as early as 1857, they basically said, look, the miners have developed this custom of allowing the first person to use water to obtain rights superior to everyone else. We’ll just follow that custom. And that became the origin of the doctrine called the prior appropriation, which is said to be the antithesis of riparian rights.

ED AYERS: It can’t have been that old a custom, since they discovered gold in ’49. By ’57, it’s a custom.

DAN TARLOCK: Right, right. Well, almost all the land in California, and certainly all the land in the other Western states, was initially owned by the federal government. Got it from various sovereigns of France and Mexico.

And so what should have happened, is when the federal government then sold off the land to settlers under the Homestead Act and other laws, the federal land rights should have carried with them riparian rights. That was the common law. And each should state or territory, one of the first things they did was to adopt the common law of England.

But as the Western states started to develop irrigation– originally, it was utopian colonies, Greeley, Colorado, the Mormons in Utah. They were taking water out of the streams. They were taking it out in big quantities. They were transporting it longer and longer distances away from the streams.

So the Western states picked up the idea of prior appropriations as a customary right. And later, court said, we’re adopting it, because that’s the only system that works in an arid area. And if we don’t adopt it, we won’t grow.

ED AYERS: So basically, there’s a different law in the East and the West of the United States.

DAN TARLOCK: Right. Right. Riparian rights pretty much stop at the Missouri River.

ED AYERS: And what’s been the long-term consequence of this?

DAN TARLOCK: Well, the long-term consequence is that the prior appropriation enabled the Western states to move water where it was needed. It enabled them to develop an irrigation economy, which is still in existence. And it enabled them to develop urban centers, like Los Angeles, which has almost no natural water supply. Or San Francisco, as well.

ED AYERS: Sounds like pretty profound consequences. Did people become uncomfortable with that at some point, or does it still seem the only thing that really works in an area like the West?

DAN TARLOCK: Well, that’s a subject of enormous controversy. Over the last 40 years or so, people have focused more on what was left out in prior appropriation. That is the environment. Fish have suffered. Native Americans were left out, later put back into the picture.

And now, people are worried that climate change will shrink the overall water budget, and debating whether prior appropriation is the best way to adapt to climate change.

ED AYERS: Dan Tarlock is a law professor at the Kent College of Law in Chicago. Thanks very much for joining us, Dan.

DAN TARLOCK: My pleasure.

PETER ONUF: It’s time for us to take a short break, but don’t go away. When we get back, something’s in the water at Jamestown Settlement, and the result is not pretty.

ED AYERS: You’re listening to BackStory. We’ll be back in a minute.