Water 101: For the Layman/Amateurs

By Henry S. Barbosa

A water policy lawyer tries to untangle the legal thickets of state water law: it is  “a grab bag body of law based in part on Roman civil law, German mining law, Spanish Land Grant Law, and English Common Law.”  

Let me begin with an apology to all of the very knowledgeable people in attendance.  This presentation is aimed at the beginner in water policy and is very much non-technical.  I hope to make simple a very complex business without being simplistic.  It is drawn from my experience in water policy. After 20 years as a City Attorney, I thought I knew everything. The next 20 years, beginning with my election in 1992 to the Three Valley Municipal Water District, a Metropolitan Water District member, would throw me into a very complex and completely separate universe.

By way of overview I will first talk about the legal history of California water law and the reasons for its complexity.  I will then make a few comments about the cultural differences between the North and South, the very cultural differences that have always made consensus difficult to achieve. Then I will describe and comment on the existing infrastructure, primarily in Southern California, and close with some suggestions about the future.

LEGAL STRUCTURE AND HISTORY OF CALIFORNIA WATER DEVELOPMENT

California Water Law reflects a rather curious amalgam of common law and civil law sources for the protection of primarily private property interests. It has been described as a grab bag body of law based in part on Roman civil law, German mining law, Spanish Land Grant Law, and English Common Law. Most influential is English Common Law, which is predicated on the singular notion of property and which is at the core of English society.

Great Britain has no single core organic instrument such as a Constitution or Bill of Rights as in the American System. The America legal system is relatively unique in that it places a premium on personal, individual integrity without regard to any claim to property or class; and sets the table for conflict between these polar opposites. Those polar opposites are what I call common law/property prospective versus the general welfare regardless of class or property, or personal perspective.

Beginning in the 1850’s after California was joined to the U.S. Republic, there evolved a traditional and somewhat inconsistent legal foundation resulting in a confusing body of terms and definition of interests in water and land, riparian rights attached to land adjacent to a stream or water way, appropriative right by over-layers, priorities to access by virtue of being first or earlier in time, and without any particular consideration of the social utility of the water-dependent enterprise, whatever the holder of the right determined in his or her own individual interest.

Competing theories evolved about the relation between the individual’s right to certain water and the greater needs of a growing society and changing circumstances and hydrologic conditions.  Again, the property perspective vs. personal perspective.  The case law that emerged from Supreme Court determinations began to reflect a shift from the primacy of individual ownership over the “use” of water (“usufruct,” from Institutes of (the ) Justinian), to a position that took into account emerging societal needs, by relying upon a judicially created “reasonableness” doctrine.

The legal environment was clouded however, by the adoption by the voters of the 1928 Amendment to the California Constitution to add “reasonable use” as a constitutional mandate. This set up the question squarely which is at the core of our legal difficulties:  Did the voters simply validate the existing legal direction of evolving “reasonableness,” as judicially achieved or did the vote mark a distinct turn of legal development by inserting reasonableness directly and explicitly into the Constitution, and (without any dependence upon judicial restraint) demand a resolution of current disputes with a lessening impact of the more archaic rules?

To paint a clear picture of this dilemma let me read from an important law review article law review article published in 1988, and yet still relevant:

“By 1926, the year of the Herminghaus decision, California law had firmly established that water rights were compensable property interests and the courts had developed a comprehensive body of precedent defining their scope and limitations…As described previously, it (adoption of Article X, section 2, to the California Constitution) did not add (emphasis added) the reasonableness doctrine to California law.  That doctrine had been evolving for more than fifty years prior to the amendment’s approval.  Instead, the amendment incorporated the doctrine as it had been historically interpreted by the Courts, into the Constitution, (emphasis added) and extended it to competition between riparians and appropriators…In four landmark decisions since 1967, however, the courts have re-defined the nature of the protectable property interest in water so as to leave NO water right, riparian or appropriative, privately or publicly held unscathed.  (Emphasis in original). Indeed the Courts are propelling California into a new era of judicially and administratively supervised reallocation of its water resources, on the premise that water use is more a governmentally granted privilege than a privately held property right.”1

PHYSICAL AND CULTURAL CONTRASTS

With the source of legal conflict clearly in mind, let me turn to certain cultural differences between the North and South.

In the North, people are blessed with multiple water sources: anyone could locate near a stream or river and simply tap in. The North is truly blessed with the High Sierras watershed.  Even today people in the North debate the need for water meters! And they speak with a viewpoint very much tied to the property perspective of our common law legal heritage.  

In the South, there is little local water: our three major rivers, the Los Angeles, San Gabriel and Santa Ana, all run dry 10 – 11 months out of the year.  And so, the search for water took institutional solutions; i.e., water is metered and adjudicated basins are the norm. A most revealing statistic is the fact that daily water usage per person in the “North” is about 330 gal, in San Francisco it is about 170 gal, and in Southern California it is closer to 120 gal.

INFRASTRUCTURE

The best one-volume study of Western Water infrastructure is still Marc Reisner’s, Cadillac Desert (1986), and it covers the development of the California coastal plain. The City of Los Angeles took the first step at institutional efforts to secure water and built the aqueduct to the Owen Valley on the eastern side of the Sierras. But once in control of the added supply, the City of Los Angeles put a political price on the benefits of this water, namely annexation to the City.  This was not an agreeable solution to the surrounding and established cities of the coastal region. San Marino, Pasadena, Glendale, Burbank, San Fernando Valley, Santa Monica, Beverly Hills, Torrance, Compton, Long Beach, Anaheim, Fullerton, and Santa Ana, decided to create their own institutional solution to securing water and established the Metropolitan Water District, whose first project and priority was the construction of an aqueduct to the Colorado River over 240 miles, near the Parker and Hoover Dams, with a delivery capacity over 1.2 million annually.

The second thing that MWD constructed occurred as a reult of the studies commenced in the early 1980’s to build Diamond Valley Reservoir, a huge reservoir that was designed with the expectation that the pumps of the State Water Project at Tracy would someday be intermittently shut off at the Bay Delta.  Diamond Valley was completed and filled to capacity only four or five years before the first curtailment called by the State. Diamond Valley and its conveyance, the Inland Feeder were built at a cost of over $3 Billion, $2 Billion for DVR and $1 Billion plus for the IF. The system was designed to operate by taking big gulps of water, whenever water through the Tracy pump was available.  How big is Diamond Valley? How much water are we talking about? Over 800,000 acre feet.  Imagine a Rose Bowl full of water poured out every ½ hour for 24/7 and over 2-1/2 – 3 years of continuous flow!  Another way of imagining this amount of water is the calculations of the chief engineer during construction that if the reservoir was to ever fail it would take 6 to 8 hours for the rush of water to push Camp Pendleton all the way to Catalina Island!  Without a doubt, Diamond Valley is a most marvelous example of the value of storage.

But there is a darker side to this view of Diamond Valley.  It can be said that it represents and is a monument of political failure to solve the Bay Delta, which has already been described by others here today.

Let me describe the Bay Delta, this way. It has these huge pumps, 12,000 electric horsepower each that have the power to reverse the natural flow of the estuary. There are 6 to 8 huge barrels of pipeline, 20 feet diameter, a freak against nature, destroying habitat and upsetting the natural flow of fresh and sea water. We should have fixed the Delta with a conveyance that brings water around the Delta, directly into a fore bay that sits in front of the pump and takes water that way, without dragging the entire flow of estuary southward. Instead, we in the South spent our money in Diamond Valley and now that $3 billion is not on the table to support fixing the Delta – which is the most crucial Bay for all of California water management, and we still struggle to come to agreement on how to fix the Delta.

WHERE NOW THE FUTURE?

The future of water resource management is groundwater. In Southern California we are fortunate to have the San Gabriel aquifer, a magnificent “bath tub” from the mountains to the 60 freeway, from Alhambra to Pomona, with an estimated storage capacity to 2 million acre feet, or twice the size of Diamond Valley. But it is underutilized! Why? Because groundwater management has been left in the hands of the property perspective crowd representing the private water companies that have totally co-opted the public agency responsible for resource management.

I was engaged by the Upper San Gabriel Valley Municipal Water District in 2009 to conduct a study and propose a strategic vision for the 21st century. That study revealed severe over drafting of water beyond adjudicated rights and without a replenishment charge or recharge for over 15 years, for a cumulative total of 500,000 acre feet, or ½ the Diamond Valley capacity. The responsible public agencies have become captive to the private interests and this situation is unchanged since the study was filed and made a part of the public record.

What do we need to do? Participate and engage your local agencies and demand accountability, transparency and source management of the groundwater, as it is our last line of defense of water-reliability across the 21st-century.

 

1 Chifford W. Schultz and Gregory Weber, “Changing Judicial Attitudes Towards Property Rights in California Water: From Vested Rights to Utilitarian Reallocations” Pacific Law Journal, Vol. 19, Number 4, July 1988.  

“Toward a New Strategic Vision for the 21st Century,” Henry S. Barbosa, Final Report to the Upper San Gabriel Valley Municipal Water District, October 2009.

 

© Henry Barbosa, 2014