July/August 2021 California Cattleman

Page 108

WHO OWNS CALIFORNIA’S WATER? Understanding the legal and applicable definitions of your water rights by California Cattlemen’s Association Member Richard M. Ross, J.D. EDITOR’S NOTE: This article originally ran in this publication six years ago in the May 2015 issue. At that time, Californians were facing severe drought. This article’s contents is again a reminder of legal definitions of ranchers’ water rights. California’s law of water rights is unique to California and combines English and Spanish law with California custom. English common law recognized “riparian” right – the right of those along a waterway to draw water from it. The Spanish, dealing with a more arid climate, followed a doctrine of “appropriative” right - the right to appropriate water from a waterway and transport it somewhere else for use. In California, the Gold Rush created a need to develop water for washing gold bearing placers away from the streams. I pay for my irrigation water by the “miners’ inch.” Mining practices, combined with California’s Spanish/ Mexican heritage called for recognition of appropriative rights. But California adopted the English common law in its constitution, making riparian rights the law of the land. What resulted was the California Doctrine which combines the two. Over the years, the most profound changes in water rights have probably been adoption of the Water Commission Act of 1914 which created the current state administered permit system; Article X, section 2 of the California Constitution which limited water rights to reasonable use; and the California Supreme Court’s decision recognizing a “public trust doctrine” as trumping recognized water rights. Recent groundwater legislation will be important as we move forward. Water rights can be made simple. In 1968 I headed to Wyoming to study water rights under the great Frank J. Trelease. He had three “Laws of Water.” 1) Water flows downhill; 2) Water flows toward money; 3) Rule 2 prevails over Rule one. His rules were especially true in California. The Public Trust Doctrine may reflect Rule two and the economic power of green. With Dean Trelease’s ultimate realities in mind, we can turn to the source of all human power and right - our constitutions. Rights to water are specifically covered in California’s constitution which provides that people can have a right to use it, so long as it is applied to a reasonable and beneficial use, using a reasonable method of diversion and use. What that means is that nobody can OWN water, you can only have a conditional right to use it. In legal terms, it is a usufruct, the right to use the property of another. Where its value cannot be realized in a non-consumptive way, water is an “imperfect usufruct” and may be consumed. Still, outright ownership is not possible and a right to water is only an “incorporeal hereditament” (a “right” with no embodiment, but capable of being inherited). So – moving beyond law school terms, who has a right to use the water if someone else ‘owns’ it? The right to use water is a property right. Clearly it has

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value. In its absence nothing can live – crops, livestock and people themselves parish. Taking the “value” of the water from the land makes the land of little productive value. However, the right to use water is generally set by place, time and type of use. What is the value of a new Ferrari if your right is conditioned on it being covered by a tarp in a barn in Idaho? But that goes to valuation, not whether there is a property right. If the government “takes” private property for public use it must provide just compensation under the due process provisions of the 5th and 14th Amendments to the U.S. Constitution. However, what if government does not “take” the water right? What if a current right simply ceases to exist? As the thirst of urban counties increases, state government (controlled by urban areas) will likely find more and more current uses, and methods of diversion and use, to be unreasonable. If your use or methods of use are unreasonable (i.e., “you shouldn’t be raising almonds versus grazing because they use too much water,” or “you only need half as much water because you could drip irrigate your pasture”) then you arguably don’t HAVE a right to the water. You only have a right to water so long as you use it reasonably. Why would the government “take” water rights if it can simply declare that existing uses or methods of use are unreasonable? The Russian River frost protection case reflects such a change. Sprinkling grapes for frost protection was recognized by regulation as a reasonable use; some salmonids were found stranded in the Russian River; the state water board passed a resolution changing the regulation and finding that pumping water for frost protection that could affect the flow of the river was “an unreasonable method of diversion and use.” The Superior Court overturned the board, but was reversed on appeal. Look forward to more challenges to the reasonableness of diversion and use. With the underlying authority in mind, the next element to understanding a legal framework is understanding the terms used. Here are a few of the basic terms in water law. “Appropriative right”: The right to take from a surface water and use the water away from the source. Appropriative rights have priority depending upon when they were established. Appropriative rights are often divided into two parts: 1. Pre-1914 Rights: Rights to appropriate water that were established before the Water Commission Act of 1914 which authorized state regulation. The rights must have been in continuous use since 1914. 2. Post 1914 Rights: Since 1914 the state has taken applications and determined if there is adequate unappropriated water, whether there would be adverse impact on the stream, etc. and can issue a permit which becomes a license when fully implemented.

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