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Some say the century-old water rights system in the West is unfair and racist

ADRIAN FLORIDO, HOST:

The right to water can be extremely valuable in the drought-prone West, and states and other entities that claimed the water more than a century ago tend to still be best off today. But as the climate gets hotter, that system is coming under scrutiny, especially from those who say it's inherently racist. Lauren Sommer from NPR's Climate Desk reports.

LAUREN SOMMER, BYLINE: There's a famous story about how San Francisco got its water. In the late 1800s, the city was booming, and it needed more water. So city leaders found a pristine river high in the mountains, 150 miles away.

STEVEN RITCHIE: For San Francisco, it was important to lock up that water supply for itself and its growth over time.

SOMMER: Steve Ritchie is assistant general manager for the San Francisco Public Utilities Commission. To get that water, though, the city had to officially file for a water right, which meant...

RITCHIE: You write it on a piece of paper, and you nail it to a tree.

SOMMER: Yep. Next to that river, someone nailed a paper to the trunk of an oak tree. And for more than a century, San Francisco has had a very secure water supply because in many Western states, the older your water right, the more untouchable it is. When there's a drought, those with newer water rights have to cut back before you do. It's known as first in time, first in right.

RITCHIE: We and others have invested a lot of money in our systems to make them work based on the principle of first in time and first in right.

SOMMER: But that word - first - sounds a lot different based on where you're standing.

GARY MULCAHY: First in time, first in right is kind of laughable because the ones that were here first were the Indigenous people.

SOMMER: Gary Mulcahy is government liaison for the Winnemem Wintu Tribe in Northern California. The tribe's traditional homeland was flooded when California created the largest reservoir in the state with Shasta Dam. But despite their history there, the tribe has no rights to that water.

MULCAHY: We're the Winnemem Wintu Tribe. Winnemem means middle water, middle water people. That kind of tells you our culture, our spirituality is based on water.

SOMMER: Mulcahy says the current system of water rights is unfair and racist, protecting only the wealthy white settlers who created it.

MULCAHY: They all got their water through murder, mayhem, rape, theft and genocide.

SOMMER: California lawmakers are now debating how to change that system. State bills would give regulators more authority over the oldest senior water rights, including being able to tell those rights holders to stop using water during a drought.

MULCAHY: The water rights system absolutely, totally needs to change for everybody's right, for everybody's health and well-being and not just a select few who think that they are the gods of water and they can't be touched.

SOMMER: But those with senior water rights, including agricultural areas and cities like San Francisco, are pushing back and lobbying against the state bills.

RITCHIE: Water rights, you know, are basically a form of a property right. So having the uncertainty that that supply might be cut at some point - that is very troubling.

SOMMER: This century-old system of water rights is being tested across Western states, including on the Colorado River, where a two-decade-long drought is causing big shortages. The Navajo Nation has been battling with Arizona for decades about getting their water rights there. Dylan Hedden-Nicely directs the Native American Law Program at the University of Idaho.

DYLAN HEDDEN-NICELY: Everyone acknowledges that the Navajo Nation has water rights from the Colorado River. The issue is that they haven't been quantified, and so no one really knows what the scope of those rights look like.

SOMMER: The Supreme Court ruled last month against the Navajo Nation, saying the federal government doesn't have a duty to help them quantify and get that water. But Hedden-Nicely says discussions about tribes and equity are more front and center than they've ever been, and it creates a chance for everyone in a watershed to have their needs met, not just tribes.

HEDDEN-NICELY: Those are the types of opportunities that exist if people can just sort of get over this historical paradigm that this is a zero-sum game. If you get anything, it's coming out of my hide, and therefore, I'm going to fight you tooth and nail.

SOMMER: That shift, he says, may be one of the only ways to move forward as climate change makes Western droughts even more severe. Lauren Sommer, NPR News. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Lauren Sommer covers climate change for NPR's Science Desk, from the scientists on the front lines of documenting the warming climate to the way those changes are reshaping communities and ecosystems around the world.