David M. Kennedy is a Pulitzer Prize-winning American historian. A founding co-director of the Bill Lane Center for the American West, he is the Donald J. MacLachlan Professor of History Emeritus at Stanford University. I sat down with him on April 6, 2015 to discuss the role of the drought in California’s history. Below is a transcript of our conversation, edited for length and clarity.


Sarah Sadlier: The past three years — 2012, 2013 and 2014 — have made up the driest three-year period in recorded California history. Can you summarize the history of the drought in California since the nineteenth century?

David Kennedy: The drought is a chronic condition in the American West that has been recognized as definitional of the region’s identity for almost two centuries. We live in the most arid part of North America. The most famous observer of this is John Wesley Powell, who famously wrote his Report on the Lands of the Arid Regions of the United States for the U.S. Geological Survey in 1879. Basically, my point is that there is nothing new about this drought. This a severe case and a special case, but it is just part of the life of this region to have to manage aridity, water storage, and water transport.

The drought issue is now exacerbated by the success of the policies that we have had for the last century or more. That is, building large systems of water transportation that allowed the region to be populated at a very high level and economically developed, especially in the agricultural sector. So, in some sense, we are reaping the fruits of our own success.

However, other things have intervened to make this problem even more severe than the droughts we have seen in the past. One factor is the changes in our cultural ideas about nature and ecosystems, our new scientific understanding of the fragility of the ecosystem services and how they must be honored, and our statutory legal redefinition of who has the right to water. We have empowered species other than our own to their legal claim to the water in a way our forbearers a hundred years ago would have never imagined necessary. Then of course, there is this big wild card of climate change — the full dimensions of which and the long-term consequences of which we are still trying to understand, but it is still something that affects the chronic aridity in the region.

SS: Gov. Jerry Brown claims, “Some people have a right to more water than others. That’s historic. That’s built into the legal framework of California … If things continue at this level, that’s probably going to be examined, but as it is, we do live with a somewhat archaic water law situation.” Can you briefly discuss this this “archaic water law situation?” What or who kept the legal framework around water conservation archaic? Why hasn’t it changed?

DK: That is an enormously tangled subject, but I will take a crack at it. When settlement of the American West began in the mid to late nineteenth century, it became obvious pretty early on that the inherited system of water rights, which is known as the riparian system, was simply not appropriate for the American West. Essentially, the riparian system attaches water rights to land where the water is on or adjacent to the land, like a river or a lake. However, in the West, you had to bring your water from far away through canals, pikes, or pumps to the place where you wanted to use it. The water right was not attached to the property right in the same way it did under the riparian system. So, willy nilly, our forbearers in this region developed a whole different system of water rights called appropriative rights. The appropriative system had some very peculiar characteristics. One of them is the famous, “first in time, first in right.” That is, whoever has the oldest or most senior claim on the water has it. This is not an unrestricted right since you still have to think about people downstream from yourself, but it is one very peculiar characteristic of the appropriative system.

The second characteristic of the appropriative system is one of the greatest obstacles to water use today (and this has been true for decades and generations): the “use it or lose it” rule. If you don’t use your water supply in a given year, you risk giving up the claim on it forever after. That means that people have no incentive to use water efficiently or conserve water, because if they do, they lose the right to claim it again. It’s an odd system, and it’s a historical contraption that still affects today’s water conservation efforts. I think what Governor Brown is talking about is that this ancient system needs to be revisited and modernized to conform to modern conditions.

SS: How do you think that California would go about reexamining and revamping that system?

DK: Well, it will not be easy because we are a litigious people. Senior water rights owners under the appropriative system have very well-established legal rights to their water, so it would take some kind of a legal revolution, a revolution in the legal definition of water rights, to accomplish this. Again, I am going to go out on a limb here because I know less about this than I should, but the Australians had a six or seven year drought, and they rewrote a lot of their water law from the bottom up. It was a much more exhaustive review of their water rights system than anything that we have yet tried to do, so there is at least one example of a country that in these extreme conditions found the political will to do this kind of thing, but whether we can do it, I don’t know. The Brown administration took a step in this direction this last year when they began this process of conjunctive water management. They tried to scientifically figure out the relationship between groundwater and surface water in order to manage water supply both on the surface and under the surface in a more holistic and organic way. That is a step in the right direction, but as everyone involved with it acknowledges, it’s necessary but not sufficient. We have a lot more work to do there.

SS: California is the state that people have historically gone to find their fortunes. At one time, it was the gold rush; now, it is Silicon Valley. What role does water conservation efforts play in the historical narrative of the California Dream and how does that impact the present and future of water conservation? In other words, has the historic California Dream changed as a result of the drought?

DK: There are at least four, maybe five, huge water projects that have historically defined the terms of life in this state. Probably the most famous one is the Owens River Project that brought water to Los Angeles a hundred years ago. The Hetch Hetchy Project, which brings water to San Francisco and the Peninsula is number two. The Colorado River Project, which brings water to the Imperial Valley and also Southern California, is number three. More recently, in the mid-twentieth century, there was the federal Central Valley Project and the state’s water project.

Those five projects are marvels of large-scale scientific and engineering ingenuity. They really made life possible in this state for tens of millions of people at a scale that simply wouldn’t have happened without these engineering projects that move water around from where it accumulates on the surface of the earth and where it actually can be used productively. Most people are dimly aware of these water projects. It is the old joke: “where does electricity come from? Well it comes out of the socket, the wall. Where does water come from? It comes out of your tap.” People don’t think much more about it. I believe that this crisis we are in is going to make people much more aware of the fragility of the system we have and maybe, just maybe, create enough political will to take it on in a comprehensive way.

SS: According to California’s Department of Water Resources, 34 million of 43 million acre-feet of water diverted from rivers, lakes, and groundwater goes to California’s agricultural sector. Can you comment about the agricultural consumption of water in the West?

DK: Most of the ways that people in urban-suburban areas encounter water is our own households. We take a shower, water our lawns, flush the toilet, etcetera. So, a lot of conservation efforts focus on household domestic use, which is all well and good, but all that use combined only constitutes twenty percent of the managed water in that region, not just California. Eighty percent of the water that we are talking about goes to agriculture. There are some people who think, “oh those damn farmers, they are just ripping us all off with their use of cheap water.” Well, there is something to that maybe, but the real point is that these farmers are making a major contribution to not just this state or country but to the world’s food supply. So, we shouldn’t be too cavalier about just shutting the water off for the farmers so we can take longer showers or have nice gardens or lawns.

Sarah Sadlier, a junior studying history, American studies, Iberian and Latin American cultures, and political science, is the interviews editor of Stanford Political Journal.