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Water ownership revisited

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 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.

Establishing a pre-1914 right is not easy. In 1872 the legislature enacted Civil Code provisions establishing ‘first in time is first in right’ and providing that notice needed to be posted in some conspicuous place at the point of intended diversion stating the claimed number of miners inches of water, the purpose for which it was being taken, the place of use and means of diversions. That information was then to be recorded at the county. The right was dependent upon completion of the project, and the priority of the right related back to the original notice. But what if the project was not completed as noticed, or was abandoned for some period or changed? The county recording does not establish all of the elements needed to establish the right. Because of the potential for un-confirmable pre-1914 claims, the water board has announced a review of pre-1914 rights.

Appropriative rights are for specific amounts of water/ rates of flow, points of diversion, methods of diversion, periods of use, places of use and uses (irrigation, stock water, storage, etc.). Riparian Rights: Any parcel contiguous to a water body generally has riparian rights to take water from that body to use on the riparian parcel. The land entitled to riparian water is the smallest parcel in the chain of title that has had the same ownership as the parcel touching the water, although there is precedent for reconnecting once severed parcels if the deeds reserved the riparian rights.

Riparian rights are superior to appropriative rights, so in times of water shortage, riparian owners may take all of the water, leaving none for people with appropriative rights. The rights of riparian owners are “correlative,” meaning that all must proportionately share whatever water is available. There is no priority based upon where you are on the waterway or how long you have used the water. [There is some law related to ownership of a water’s source.] How to share is not always easy to determine. For instance, there is an argument for determining correlative rights based upon the number of irrigable/arable acres owned, but definition of those lands has changed with technology.

Of significance with riparian rights is that there is no right to store water. The state has long recognized a 30 day rule, but that is subject to change without notice. Prescriptive Rights: These are rights acquired by “adverse possession.” If someone uses water with no right to do so for a long time, and the people who might have a higher right to the water were aware and did nothing to protect their rights, the party using the water in a manner adverse to the others may acquire a “prescriptive right” to use the water. It generally requires a judicial decree. Adjudicated Rights: The Water Code authorizes adjudication of the state’s waters. Historically, the appropriative water rights of a river have been subject to adjudication, but not riparian rights. However, in 1979, the Supreme Court ruled that unexercised riparian rights could be curtailed by future adjudications. The normal process is that the Superior Court tasks the Water Resources Control Board (WRCB) with researching the uses and potential uses of the river and allocating the water to various users for various uses, periods of use and priorities of use. The WRCB also has its own authority. The research and report from the state can take many years. Eventually the adjudication is adopted. Superior courts retain jurisdiction to resolve disputes and appoint a watermaster to administer the decree on a day to day basis. Pueblo Rights: In Spanish/Mexican days, the rights of communities to take water from waterways for domestic use and irrigation were recognized. These rights are still recognized for cities that were established during Spanish or Mexican rule. Groundwater rights: The rights to groundwater are in flux. Historically, groundwater belonged to the overlying land owner. Since the groundwater basins generally extend beyond the surface boundaries, the rights are “correlative” meaning that all landowners are required to share proportionately. In 2014, the legislature adopted laws calling on the state to regulate groundwater. Given the potentially constitutional nature of existing rights, there will be questions on the authority of the legislature to amend those rights, and the legislature will undoubtedly fine tune the process for some years to come. Public Trust Rights: In 1983 the California Supreme Court ruled in the Mono Lake case that the public had a right to water that trumped vested rights. The court held that “The principal values plaintiffs seek to protect . . . are recreational and ecological, the scenic views of the lake and its shore, the purity of the air, and the use of the lake for nesting and feeding by birds. . . . it is clear that protection of these values is among the purposes of the public trust.”

The conclusion of the court in the case was: “The public trust doctrine and the appropriative water rights system are parts of an integrated system of water law. The public trust doctrine serves the function in that integrated system of preserving the continuing sovereign power of the state to protect public trust uses, a power which precludes anyone from acquiring a vested right to harm the public trust, and imposes a continuing duty on the state to take such uses into account in allocating water resources.” National Audubon Society v. Superior Court (1983) 33 Cal.3d 419.

The decision called for “reconsideration of the allocation of the waters of the Mono Basin.” In conjunction with laws like the endangered species acts, there has been a massive reappropriation of water. Many articles refer to agriculture’s use of 80 percent of California’s water, yet recent studies show that nearly 50 percent of the state’s developed water now goes to environmental enhancement, 40 percent for agriculture and 10 percent for urban. Roughly 60 percent of the state’s water is “undeveloped” (free range water) which undoubtedly inures to the benefit of the environment, for a total of 80 percent actually going to the “environment.”

An interesting twist on the public trust doctrine was presented by the United States Supreme Court’s decision in Summa Corp. v. Cal. State Lands Commission the year after Audubon. The court denied California’s claim of a public trust easement over a wetland because title to the land traced back to a Mexican land grant. California had made no claim in the land patent proceedings implementing the Treaty of Guadalupe Hidalgo which recognized property rights of Mexican origin, so it was estopped from challenging the current owner’s rights derived from Mexican title. As a result, land that was included in old land grants is arguably exempt from the public trust doctrine. But is the water flowing past?

THEY ARE CALLED PESTS FOR A REASON

webinar provides opportunity improve your operation with at home eduation

from the National Cattlemen’s Beef Association

Summer is here and with the warmer weather unwanted pests are making an appearance. Flies and internal parasites are more than nuisances, they make animals uncomfortable, transmit disease and can impact profitability. Although eradication is not feasible, management is possible. During a recent National Cattlemen’s Beef Association Cattlemen’s Webinar Series event, speakers shared proactive solutions and practices that producers can put to work on their operations to manage pests and keep animals, and the bottom line, healthy.

“Our goal as producers is to manage cattle effectively so they utilize available forage and convert it into more profitable products like meat,” said Paul Kropp, national accounts manager for Central Life Sciences. “Flies create stress and discomfort in our animals, hindering performance. Maximizing herd efficiency and comfort are keys to improving revenue potential.”

According to Sonja Swiger, DVM, associate professor and veterinary/medical extension entomologist for Texas A&M AgriLife Extension, external parasites cost the U.S. beef cattle industry $2.4 billion annually, with $1 billion of that cost attributed to horn flies alone. When each horn fly takes 30-40 bloodmeals per day, cattle spend their time switching their tails and kicking their bellies, creating stress and negatively impacting performance.

Horn flies are known to be vectors for at least 65 diseases including pink eye and mastitis, and their biting behavior can lower milk quality, affect pregnancy rates, lower body condition scores and decrease weaning weights. According to Kropp, increased stress, blood loss and reduced grazing caused by biting flies can result in losses up to $40 per animal.

Kropp suggests that 200 horn flies per animal is the economic threshold where animals will perform up to their potential. Over that amount, efficiency and productivity can start to decline. Although there is no one “silver bullet” to manage the fly problem, various options exist such as insecticide ear tags, liquid pour-ons and feed-through fly control.

“Ear tags have some limitations since the insecticide begins to dissipate within 70-75 days,” said Kropp. “Feedthrough fly control works through the entire season, and we’ve seen increased weight gains in cattle fed fly control solutions.”

Kropp’s biggest advice is to get ahead of fly emergence, limit animal stress and don’t let flies steal the gains.

External insects such as flies are easy to see and identify as a problem, however, other pests such as internal parasites can be more difficult to diagnose even though their impact on animal health is just as detrimental.

“Parasitic diseases caused by roundworms, lungworms, tapeworms and liver flukes can impair the health, reproduction, growth and productivity of cattle,” said Swiger. “In order to effectively control internal parasites, producers first need to know which ones they are dealing with.”

Megan Schnur, DVM, technical service veterinarian for Norbrook, agrees, stressing the importance of diagnostics, such as using fecal egg counts, to determine the parasite and then select the “right drug for the bug”.

According to Schnur, cattle can tolerate and naturally fight off a certain number of parasites, but when the number gets too high, animal health is impacted. Understanding the parasite, host and environment as well as the interaction among the three is important to managing parasites. “Producers should consider animal age as well as immune system and nutritional status when selecting treatment products, in addition to understanding the parasite’s life cycle,” said Schnur.

There are two major classes of deworming products: macrocyclic lactones (ivermectins) and benzimidazoles, also known as white dewormers. Each has a different mode of action and while ivermectins have some extended effect on parasites, white dewormers only work in the gut with no longer term effects, according to Schnur.

Schnur provided some deworming protocol options. “If you are rotating dewormers, be sure to use products in different classes, not different dewormers in the same class,” she said. “Another option is concurrent or combination deworming, administering more than one dewormer at the same time, which offers a broader spectrum of protection and has shown increased efficacy and a slower development of resistance.”

Treatment timing also plays a critical role, selecting the right product, the right dose at the right time. Schnur’s advice is to monitor success of the treatment program, evaluate and make changes as necessary. “Producers should consider best practices and practical realities of herd management when developing a well-rounded parasite control program,” she said. “Consider ease of application, cost effectiveness and withdrawal times as well.”

Effective pasture management with rotational grazing is another way to reduce parasite infestations. Larvae only move up 2-4 inches on blades of grass so if cattle are moved before grass is grazed shorter, they are less likely to consume the larvae. Resting pastures also allows sunlight and heat to kill the larvae. Basic hygiene practices such as cleaning up feeding areas and spreading manure also help with internal and external pest management.

There are a lot of options when it comes to pest control, and all speakers stressed the importance of establishing a relationship with local veterinarians and extension agents to understand unique geographic and environmental pest factors, and to provide diagnostic services and treatment options.

“Producers want to maximize pounds of beef per acre, and in order to reach an animal’s full genetic potential and increase efficiency, managing pests is critical. Spending money up front on pest control results in positive returns on investment,” concluded Kropp.

To view recordings from the Cattlemen’s Webinar Series and learn about upcoming webinars, click on the Producers tab at www.NCBA.org.