Winter 2014 pg2

A Snapshot of our WATER RIGHTS Over Time

written by Nick Angeloff

Since 1914 Your Water Rights Have Been Eroding

Early in our State’s history the California Legislature adopted English Common Law as the basis of our sovereign legal framework, this action prioritized riparian water rights. Californians with property adjacent to a waterway have the right to divert and use that water, with the caveat of sharing with, and respecting the rights of neighbors up and down-stream from your property. In addition your right to use that water cannot be lost if you do not use the resource, unless another citizen of the State reserves a prescriptive right through diverting water for a period of five years in the absence of your objection. During drought years property owners are, logically, required to take less from the waterway.

Two more types of water rights are defined, appropriative and pre-1914. Appropriative water rights are permitted non-riparian users and may only divert that water surplus to riparian right holders. Pre-1914 right holders are appropriative water right holders with priority to divert and use water and are not subject to review by the State Water Board. Post 1914 appropriative right holders are subject to the review of the State Water Board.

The California Constitution changed over time to further define and restrict these rights. Article X, Section 2 declares that: “…that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare”. Individual rights are trumped by the people and the public in the State of California. Our Constitution continues to declare that individual water rights are limited to reasonable and beneficial purposes,“however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which the owner’s land is riparian under reasonable methods of diversion and use, or as depriving any appropriator of water to which the appropriator is lawfully entitled”. Keep in mind these rights were restricted in reaction to abuse, including the practice of hydraulic mining which destroyed the ecosystems of many watersheds at the expense of citizens with water rights, and livelihoods of their own.

Most poignant is the closing sentence of Article X: “This section shall be self-executing, and the Legislature may also enact laws in the furtherance of the policy in this section contained”. Pertinent to this article is the case of People v. Forni (1976) 54 Cal.App.3d 743 [126 Cal.Rptr. 851]. “To carry out the California Constitution mandate that beneficial use of water be maximized and that waste and unreasonable use and diversion be prohibited, riparian owners can properly be required to incur some reasonable costs or experience some inconvenience in connection with exercise of their riparian water rights”.

The Statutory Water Rights Law and Related Water Code Sections of January 2012 as amended including statutes of 2011 relates the regulation rural property owners face today. Division 1 GENERAL STATE POWERS OVER WATER, CHAPTER 1, GENERAL STATE POLICY Section 100.5 states, “It is hereby declared to be the established policy of this state that conformity of a use, method of use, or method of diversion of water with local custom shall not be solely determinative of its reasonableness, but shall be considered as one factor to be weighed in the determination of the reasonableness of the use, method of use, or method of diversion of water, within the meaning of Section 2 of Article X (provided above) of the California Constitution”. But I’ve always watered my cattle/crops using this pond, is no longer good enough. Although Section 101 indicates, “however, that nothing in this or the next preceding section shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which his land is riparian under reasonable methods of diversion and use, or of depriving any appropriator of water to which he is lawfully entitled”; it continues in Section 102, “All water within the State is the property of the people of the State, but the right to the use of water may be acquired by appropriation in the manner provided by law”. Section 103 clearly states that the legislature does not intend to change any law relating to water rights! To top it all off Section 104 declares that,“…the people of the State have a paramount interest in the use of all the water of the State and that the State shall determine what water of the State, surface and underground, can be converted to public use or controlled for public protection”. It is clear that if southern California wants your water they will have your water.

So now, initially in response to the abuse of rights that was hydraulic mining, a landowner abutting a stream and diverting water for legitimate agricultural use to the benefit of their family and community can be penalized financially, stripped of their rights, and made to be an outlaw. What happened to individual rights? How did we come from the perspective of being a good neighbor and sharing in the bounty of the land to one of the government will tell you if you are being a good neighbor and acting to the benefit of your community? How does the State Water Board in Sacramento determine that a property owner on China Creek in Ettersburg should be fined $500 a day for illegal diversion of water? How does that citizen of this State respond to the request to prove that they have the right to divert the water within the next 30 days or face an additional $1,000 fine and an additional $500 per day for each day after if they do not respond within 30 days? Oh, and by the way, you do have the right to consult with an attorney at your own cost. Now this person may be growing black market crops but this person may also be a cattle rancher, or growing vegetables for market…the law doesn’t discriminate. What happened to, if your property abuts a stream you have the right to divert water for beneficial use, be a good neighbor, make sure you’re not killing the salmon your neighbor subsists upon… what happened to common sense, personal responsibility and the rights of the property owner?

 

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