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legal information regarding water & water rights

 

Background Facts Concerning Water Restrictions & Penalties By Mayor Pro Tem Fred Strong,
City of El Paso de Robles
August 2, 2015

CALIFORNIA CONSTITUTION:

ARTICLE 10 WATER

SEC. 2. It is hereby declared that because of the conditions prevailing in this State the general welfare requires 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.

SEC. 5. The use of all water now appropriated, or that may hereafter be appropriated, for sale, rental, or distribution, is hereby declared to be a public use, and subject to the regulation and control of the State, in the manner to be prescribed by law.

ARTICLE 11 LOCAL GOVERNMENT

SEC. 7. A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.

WATER CODE:

Sec. 275. The department and board shall take all appropriate proceedings or actions before executive, legislative, or judicial agencies to prevent waste, unreasonable use, unreasonable method of use, or unreasonable method of diversion of water in this state.

Governor’s Commission To Review California Water Rights Law, GROUNDWATER RIGHTS IN CALIFORNIA, Background And Issues, by Anne J. Schneider:

In Katz v. Walkinshaw, the court concluded that the common law rule of absolute ownership of percolating groundwater is not suitable to California. It discussed Southern California’s chronic water shortage and decided that a rule of reasonable use should be applied. (p.4)

Los Angeles v. San Fernando:

The court stated:

The purpose of giving the right to recapture returns from delivered imported water priority over overlying rights and rights based on appropriations of the native ground supply is to credit the importer with the fruits of his expenditures and endeavors in bringing water that would not otherwise be there. (p. 72)

[Paso Robles releases and recaptures Lake Nacimiento water to enhance its water portfolio and “reservoir” of water.]

In San Fernando, the spreading, delivery and extraction of imported water were all within the city’s control and, therefore, within the city’s “reservoir.” (p. 74)

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[The creation and operation of a municipal water operation is a permitted and licensed function under State Law.]

Governor’s Commission To Review California Water Rights Law, LEGAL ASPECTS OF WATER CONSERVATION IN CALIFORNIA, Background and Issues, by Clifford T. Lee

1. The Permit and License Process
The permit and license process for appropriating water provides considerable leverage for State enforcement of the reasonable beneficial use requirement. (p. 27)

The Board can revoke a permit or take other “appropriate” action if a permittee violates any permit term or condition.

The Board has taken advantage of this authority by adopting broad permit terms granting the Board the continuing authority to prevent a permittee from wasting water. Since at least 1957, approved permit applications have contained the following provision or one similarly worded:

All rights and privileges under this permit including method of diversion, method of use and quantity of water diverted are subject to the continuing authority of the State Water Rights Board in accordance with law and in the interest if public welfare to prevent waste, unreasonable use, unreasonable method of use or unreasonable method of diversion of said water.

In addition, the currently issued permits and licenses contain the following statement of the Board’s continuing authority to prevent waste:

The continuing authority of the board may be exercised by imposing specific requirements over and above those contained in this permit with a view to minimizing waste of water and to meeting the reasonable water requirements of permittee without unreasonable draft on the source. Permittee may be required to implement such programs as (1) reusing or reclaiming the water allocated; (2) using water reclaimed by another entity instead of all or part of the water allocated; (3) restricting diversions so as to eliminate agricultural tail-water or to reduce return flow; (4) suppressing evaporation losses from water surfaces; (5) controlling phreatrophytic growth; and (6) installing, maintaining, and operating efficient water measuring devices to assure compliance with the quantity limitations of this permit and to determine accurately water use as against reasonable water requirements for the authorized project. No action will be taken pursuant to this paragraph unless the board determines, after notice to affected parties and opportunity for hearing, that such specific requirements are physically and financially feasible and are appropriate to the particular situation.

The Board adopted this provision in 1972 but has not commonly invoked its specific requirements. (pp. 29-30)
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[Page 64 describes the ability of local water agencies to “restrict water usage” and that it has the same rights as a water district within its jurisdiction.]

Water Code Section 31026 grants county water districts,

The power to restrict the use of district water during any emergency caused by drought, or other threatened or existing water shortage, and to prohibit the wastage of district water or the use of district water during such periods, for any purpose other than household uses or such other restricted uses as may be determined to be necessary by the district and may prohibit use if such water during such periods for specific uses which the district may from time to time find to be nonessential.

Water Code Section 71640 grants municipal water districts similar authority to restrict water usage. (p. 65)

Under a use restrictions program, certain water uses are classified as nonessential and are prohibited. Lawn irrigation, gutter flooding, car washing, and the filling of swimming pools and decorative fountains are the common targets of a use restriction program. (p. 66)

PROPOSITION 218, Implementation Guide

Pajaro Valley Water Management Agency v. Amrhein

The court noted that the fee might have not been property-related and exempt from Proposition 218 if it had a clearer regulatory purpose.

The record supporting the adoption of the fee must estimate the costs of the regulatory activity and the basis for determining the manner in which costs are apportioned, so that charges allocated to a payor bear a fair or reasonable relationship to the payor’s burdens or benefits from the regulatory activity. (San Diego Gas & Electric Co. V. San Diego County Air Pollution Control District)

Practice Tip: The court have long recognized that pricing of a commodity such as water has an important correlation to management of water resources and is therefore a legitimate cost of providing water delivery services (Brydon v. East Bay Municipal. Util.

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Dist. (1994) 24 Cal. App. 4th 178, 202-204; Carlton Santee Corp. V. Padre Dam Muni. Water Dist. (1981) 120 Cal. App. 3d 14, 26-28.) This regulatory aspect may not exempt usewr fees of the type discussed by the Supreme Court in Bighorn from the scope of article XIII D, but should be sufficient to justify compliance with the substantive requirements of Article XIIID, #6, particularly in light of Constitutional and statutory mandates to conserve water. Cal. Const., art. X, #2; e.g. Wat. Code, #375. (pp. 58-59)

Proposition 218:

Sec. 6, (5) ©

Voter approval for New or Increased Fees and Charges. Except for fees or charges for sewer, water, and refuse collection services.

[Annotation: Exemption for sewer, water and refuse collection is for voter approval only.

(p. 138)

California Water Boards NOTICE OF PROPOSED EMERGENCY RULEMAKING, April 29, 2015

[This document outlined the process for the declaration of a drought caused, statewide emergency declared by the Governor with Executive Order B-29-15 on April 1, 2015, directing the State Water Board to impose restrictions statewide.


On April 29th they made a proposal with time to appeal. Paso Robles, through the League of California Cities, appealed a 25% reduction to be imposed upon us due to previous reductions. That appeal was accepted and then rejected on the basis of the new criteria. In May the Board issued its regulations amending Water Sections 863-866 ordering urban water suppliers to “meet specified conservation standards” (Sec. 865) and stating that a conservation order would be an enforceable order by the Board requiring the recipient to take specified actions immediately. (Sec. 866)

The regulations required every urban water supplier in the state to reduce water use. It required 8% reduction for those using less than 65 gallons of water per person per day and then established other ranges of average daily per person use for reduction requirements. Every agency in the state was individually listed with its statistics.

Paso Robles was listed on page 6 of the R-GPCD Appendix as having reduced it water use by 11% from 2013 to 2014 to 146.1 gallons per day per person placing it in “Tier 7” and requiring us to reduce our water use by 28% from 2013 or 17% from 2014 because we were in the range of 130 -170 gallons per day per person.

CALIFORNIA’S GROUNDWATER UPDATE 2013, updated in April and May of 2015, Central Coast Hydrologic Region:

Page 9 lists the Salinas Valley as one of 53 groundwater basins in California and Paso Robles Area as one of 10 sub-basins in the Salinas Valley Basin.

Page 11:

The Paso Robles Area Groundwater Subbasin (3-4.06) is located southeast of the Upper Valley Aquifer Groundwater Subbasin. Two groundwater-bearing zones are located in the Paso Robles Area Groundwater Subbasin: Holocene-age alluvium and the Pleistocene-age Paso Robles Formation. The unconsolidated Holocene-age alluvium consists of fine-to-course-grained sand with pebbles and boulders up to 130 feet thick near the Salinas River, and groundwater is present in unconfined conditions. The Paso Robles Formation is the primary aquifer in the subbasin. The formation ranges between 700 and 1,200 feet thick and consists of unconsolidated, poorly sorted sand, gravels, silt, and clay. Groundwater in the Paso Robles Formation is generally found in confined conditions. Recharge of the subbasin occurs primarily from percolation through stream channels, seepage from streams, and irrigation return flow.

The Water Plan update rates the various areas regarding their priority for immediate remedial action to assure future, available, water supplies. On page 22 it lists Paso Robles Area of the Salinas Valley Basin as “high priority” There are only 8 basins or subbasins with that designation in the Central Coast Region. The others range from “medium”, 16 of them, “low”, one basin, and “very low”, 35. Our subbasin reportedly served 56,077 people in 2012.