California Ground Water: Legal Problems

Abstract

The California law of ground water rights is primarily judicial. For more than a half-century, the courts in many decisions have created and developed the current rules that govern the water rights in the vast developments of ground waters in this state and, with marked consistency, the legislature has followed a hands-off policy. It is true that some statutes relate to ground water, but they bear no resemblance to a ground water code. In California, the historic legal distinction between percolating waters and definite underground streams is observed by both the legislature and the courts.' Subterranean waters are percolating if they are not concentrated in channels with definite beds and banks and are not moving in definite streams. And waters broadly diffused through loose water-bearing materials in well-defined subterranean basins, whether or not under artesian pressure, are percolating waters, not those of definite streams.2 However, rights to the use of percolating waters are currently governed by rules of law that are very similar to those relating to definite streams. That is, the riparian and appropriation doctrines apply to both surface and underground watercourses, and the correlative and appropriation doctrines apply to percolating ground waters--correlative ground water rights being analogous in many respects to riparian stream water rights. The law presumes that ground waters are percolating.3 Hence, a person who asserts the existence of a definite subterranean stream has the burden