I. The Permit Regime

Up to the early 1900s, appropriators in California, most of them miners and non-riparian farmers, had simply taken control of and used what water they wanted. Sometimes notice was filed with the county recorder, but no formal permission was required from any administrative or judicial body. The Water Commission Act, submitted to the voters by referendum and approved in 1914, established today’s permit process. It invested the newly created State Water Commission with the power to adjudicate disputes and issue permits for new appropriations of water, and it created the agency that later evolved into the State Water Resources Control Board.1

The Act took effect on December 19, 1914. The statutes it originated govern, in the Board’s own publication of the law, “the acquisition and exercise of rights to reasonable and beneficial use of surface waters (and of groundwater flowing in known and definite channels) by priority of appropriation initiated on or after December 19, 1914.” The system divides the state’s water into three kinds of rights. Riparian rights require no permits. Pre-1914 appropriative rights require no permits and are limited to the quantity continuously used since before 1914. Post-1914 appropriative rights require a permit from the State Water Board, and each right’s priority dates to the time the permit application was filed.1

II. The Trespass Statute

The Water Code supplies the enforcement teeth in section 1052. Subdivision (a) provides that “[t]he diversion or use of water subject to this division other than as authorized in this division is a trespass.” The word is not decorative. A trespass under this section is an offense against the state, and the Board or the courts may impose civil liability on the trespasser.2

The liability schedule is specific. Under ordinary conditions, a person or entity committing the trespass may be liable in an amount not to exceed five hundred dollars for each day in which the unauthorized diversion or use occurs. Where the unauthorized diversion or use occurs in a critically dry year preceded by two or more consecutive below-normal, dry, or critically dry years, or during a period for which the Governor has proclaimed a drought state of emergency, the schedule rises: one thousand dollars for each day in which the trespass occurs, plus two thousand five hundred dollars for each acre-foot of water diverted or used in excess of that diverter’s water rights. Civil liability may be imposed by the superior court in an action brought by the Attorney General at the Board’s request, or by the Board itself.2

III. The Diverter

The Moon orbits at a mean distance of 384,400 kilometers from the Earth, a figure NASA’s Jet Propulsion Laboratory prints in its official fact sheet. It is the primary driver of the tides. The Moon’s gravity residual field at the surface of the Earth, known along with a weaker differential effect due to the Sun as the tide-generating force, explains two simultaneous tidal bulges: one on the side of the Earth facing the Moon, one on the side facing away. The Earth’s rotation carries each coastal location through both bulges, producing two high tides and two low tides each lunar day on a cycle of approximately twelve hours and twenty-five minutes. Isaac Newton explained the Moon’s role in the rhythmic rising and falling of the oceans mathematically in 1687.3

California passes under the Moon and back again, every day, like everything else on the planet. As the coast rotates into the bulge, the water rises along the shore. As the coast rotates out, the water falls. The Moon pulls hardest on the side of the Earth nearest to it and least on the far side, stretching the ocean into the shape the textbooks compare to a football, and no appropriator’s paperwork is anywhere in the chain of events. The Board’s electronic records contain applications, permits, licenses, statements of diversion, and registrations. A search of the public record discloses no application from the Moon.3

IV. The San Francisco Bay Operation

San Francisco Bay is one of the most geographically expansive estuaries on the U.S. West Coast. The U.S. Geological Survey describes its tide regime as mixed semidiurnal, with a range of nearly two meters at the Golden Gate, the only inlet where ocean and estuarine water exchange occurs. The Army Corps of Engineers’ coastal flood study for the San Francisco waterfront puts the average daily tide range at approximately six feet near the Golden Gate, amplifying with distance from the inlet to an eight-foot range in the far south bay. Every one of those feet of rise is water moved by the Moon.4

The Survey quantifies the operation’s throughput. In its overview of sediment transport in the San Francisco Bay coastal system, the USGS states that the Golden Gate strait “serves as the conduit for a tidal flow of approximately 8 x 109 m3/day.” The same agency’s bathymetry of the Bay gives the full basin’s volume at mean sea level as 8,446 million cubic meters. Divide the daily flow by the basin volume and the result is 0.947: every day, the Moon moves through the Bay’s sole inlet a volume of water equal to roughly ninety-five percent of the entire mean-sea-level volume of the Bay.4

Every day the Moon moves through the Golden Gate a volume of water roughly equal to the entire Bay.

V. The Daily Intake

Expressed in the units of the permit system, the intake is 8 x 109 cubic meters per day divided by 1,233.48 cubic meters per acre-foot: approximately 6,485,715 acre-feet per day. The Board’s fee schedule for water rights calculates annual fees on the total annual amount of diversion authorized by each permit or license, at a rate per acre-foot in excess of ten acre-feet. A permit authorizing 6.5 million acre-feet of diversion per day would stand alone in the system’s records.5

The operation runs without a season of diversion, without bypass conditions, without a place-of-use limitation, and without measurement. The Board requires diverters to measure and report their diversions. The Moon reports nothing, and the Board has never asked. The intake continues on spring tides, when the Sun’s pull aligns with the Moon’s, and on neap tides, when the two pull at right angles and partially cancel; the schedule adjusts itself twice a month without any order from the Board.3

VI. The Enforcement Arithmetic

The permit regime took effect on December 19, 1914. From that date through September 13, 2026 is 40,811 days. At two diversions per lunar day, every day, with no closed season, the base exposure under section 1052’s ordinary schedule is 40,811 days at up to five hundred dollars per day: $20,405,500. The figure is a ceiling, not a bill, but it is the ceiling the statute writes for a trespass of this duration.2

The drought schedule is where the arithmetic leaves the realm of the routine. Two thousand five hundred dollars per acre-foot, applied to a daily intake of 6,485,715 acre-feet, is $16,214,287,500 per day of emergency, before the additional one thousand dollars per day of trespass. Sixteen billion dollars per day. The statute provides this rate for critically dry years and declared drought emergencies, and California has had several of each during the diverter’s 112-year unpermitted tenure. The Board has never assessed a cent.2

Sixteen billion dollars per day of emergency. The Board has never assessed a cent.

VII. The Paper Trail

A search of the public record discloses no application, no permit, no license, no enforcement file, no notice of violation, no cease-and-desist order, and no curtailment notice directed at the Moon.

What the government does instead is a matter of record, and it is instructive. The National Ocean Service issues the Tide Tables, West Coast of North and South America, annually in advance, containing the predicted times and heights of the high and low waters for each day of the year. The San Francisco tide gage at the Golden Gate serves as the reference station, and the California Department of Water Resources republishes the predicted times and heights for each day of the year for stations throughout the system. The government predicts the Moon’s unpermitted diversions years ahead, to the minute, in bound annual volumes, and takes no enforcement action. The federal posture toward the largest unpermitted diverter in California has been, for over a century, to publish its schedule and stand aside.6

VIII. The Defense

The defense must be stated plainly, as this publication’s convention requires. Section 1052 punishes the “diversion or use” of water subject to the water code’s appropriation division. That division governs “the acquisition and exercise of rights to reasonable and beneficial use of surface waters” by priority of appropriation, initiated by applicants who file permit applications with the Board. An appropriation is an act: a person takes water and applies it to a beneficial use. A tide is not an act. There is no applicant, no application, no beneficial use, and, on the ebb, no net use at all: every acre-foot the Moon moves in, the Moon moves out. No court has ever held gravity to be a diverter, and no diverter can be said to divert what it returns.1

There is also the matter of priority. The Moon began raising and lowering California’s waters billions of years before December 19, 1914. Were a tide somehow an appropriation, it would be a pre-1914 appropriative right, which the Board’s own guidance states requires no permit, and under the first-in-time, first-in-right hierarchy that the 49ers developed and the Act codified, it would outrank every water right in the state. The oldest claim on the planet is also the most senior. The law reaches the appropriator. It does not reach the tide.1

The law reaches the appropriator. It does not reach the tide.

IX. Conclusion

The Water Commission Act of 1914, effective December 19, 1914, established a permit regime under which every post-1914 appropriation of surface water in California requires a permit from the State Water Resources Control Board, each right’s priority dating to the filing of its application. California Water Code section 1052 declares the diversion or use of water subject to the water code, other than as authorized therein, to be a trespass, punishable at up to five hundred dollars per day, and at one thousand dollars per day plus two thousand five hundred dollars per acre-foot during drought emergencies.

The Moon orbits at a mean distance of 384,400 kilometers and is the primary driver of the tides, raising and lowering the waters of San Francisco Bay twice each lunar day on a cycle of twelve hours and twenty-five minutes. The resulting tidal flow through the Golden Gate, the Bay’s sole inlet, is approximately eight billion cubic meters per day, roughly ninety-five percent of the entire mean-sea-level volume of the Bay, or about 6.5 million acre-feet per day. Over the 40,811 days of the permit regime’s operation, the ordinary-schedule exposure runs to $20,405,500, and a single day at the drought schedule runs to more than sixteen billion dollars.

It has filed no application. It holds no permit. The largest unpermitted diverter of water in California raises the Bay twice a day, on a schedule the government itself publishes in advance.

Ergo.