Friday, April 18, 2014
PLACERVILLE, CALIFORNIA
99 CENTS

Mountain counties protecting source water

Water Rights Panel-3

TOM CUMPSTON, second from right, ElD general counsel, speaks at a joint meeting alongside San Francisco attorney Roger Moore, far right, Sacramento attorney David Aladjem and Cindy Tuck, deputy executive director for governmental relations of ACWA. Photo by Roberta Long

By
From page A1 | March 11, 2013 | 6 Comments

In view of recent and potential changes in water laws and regulations, water leaders in the Sierra Nevada mountain counties are concerned that the historic rights to the use of their waters are in jeopardy.

At the quarterly joint meeting of Mountain Counties Water Resources Association (MCWRA) and the Association of California Water Agencies (ACWA) Region 3 on Dec. 11, 2012, at El Dorado Irrigation District, the issue was discussed.

MCWRA and ACWA are taking action to inform and educate people in rural and urban areas about the importance of protecting the Sierra Nevada river basins. They are also actively participating in statewide water planning.

ACWA Chair lays it out

Bob Dean, Chair of ACWA’s Region 3, said the water from the Sierra Nevada river basins is critical to the rest of the state. Society is becoming more urban and people in the state take their water for granted. The Sierra Nevada area provides 60 percent of the state’s water supply. The $11 million water bond that is rescheduled for the November 2014 ballot provides only two percent for water projects in the mountain counties. The small water systems that treat and distribute the source waters are struggling to meet the new standards. People in the California need to make investments in the water infrastructure in the mountain counties, he said.

Direct from the Delta Stewardship Council

The Delta Stewardship Council is working to finish the Delta Plan by June 30. The Delta Plan has a short-term 20-30 year horizon and a long-term horizon to 2100.

Chief Deputy Executive Officer Dan Ray came to meet the members, give a brief report and answer questions. He is a planner and ecologist, with 35 years in water management and natural resources.

Ray said the key is to figure out what the flow regime will be, which means how much water can be reasonably anticipated and at what times during the year. Scientists have been studying the question, including forecasts for the impacts of climate change on sea level and snowpack.

The Forest Service weighs in

Barnie Gyant, U.S. Forest Service deputy regional forester for resources for the Pacific Southwest Region, talked about the national forests’ role in California water issues. “We (professionals) don’t know how to communicate with the average person. Water is critical to life. Our bodies are 90 percent water,” he said.

Gyant said that national forests cover 20 percent of the landscape in California. The Forest Service is working with other agencies, private companies and organizations to do ecological restoration projects. “Common issues, such as wildfire, smoke, invasive species, drought, climate change and sedimentation, know no boundaries,” he said.

The purpose of ecological restoration projects is to make the forest landscapes more resilient and healthier in the future. By thinning vegetation, the threat of wildfires can be reduced and water flows increased. He mentioned the Trestle Forest Health Project, located east of Grizzly Flats in the Eldorado National Forest. The project involves forest thinning and fuels reduction on approximately 4,000 acres. It would benefit the Grizzly Flats Community Services District. The goal for the region is to treat 500,000 acres a year. Gyant wants to push it to one million.

Still fighting about water rights: background

Before California became a state in 1850, the doctrine of riparian rights was recognized by England and the eastern United States. The doctrine held that owners of lands adjoining a stream shared the right to the waters of the stream for use on the adjacent lands to the exclusion of use on any other lands. The first California Legislature adopted English common law as the state’s legal system, which made riparian rights the test for resolving legal disputes.

Appropriative rights were recognized among the early miners who required the transfer of water from streams and rivers to claims that were distant from the source. The principle was that whoever first extracted and used a certain quantity of water would be allowed to continue the use against any later claimant. Early on in California, riparian rights adjacent to private land were held to be superior to appropriative rights. Appropriative rights were recognized as “first in time, first in line.”

As mining gave way to agriculture, and increasing populations required land development, pressure on the supremacy of riparian rights increased.

The California Constitution of 1879 declared that “the water resources of the State be put to beneficial use to the fullest extent … and that the conservation of such waters is to be exercised.…” It also declared that all water appropriated to be a “public use, and subject to the regulation and control of the State.”

The public trust doctrine holds that certain resources — air and running water, for example — are above private ownership and are held in trust for the benefit of the people. From English Common Law, the doctrine originally applied only to fishing and commerce on tidelands and navigable waters, but in California it has been expanded to include other waters and recreational and environmental benefits.

In 1913, the legislature passed the Water Commission Act, creating a state agency to determine whether proposed appropriations should be allowed.

A 1928 amendment to the California Constitution mandates that holders of all water rights, including riparian, must use the water and do so reasonably and beneficially. Failure to do so results in loss of the right.

The State Water Project, a water storage and delivery system of 20 dams and reservoirs, aqueducts, powerplants and pumping stations, was planned in the early 1930s to provide a reliable source of water to central and southern California and flood protection in northern California. Due to the Depression, the state was unable to finance the entire project. The federal government stepped in, with an initial authorization in 1935, to build the Central Valley Project. The keystone, Shasta Dam, was completed in 1945. Folsom Dam was completed in 1955. Voters approved funding for the State Water Project in 1960, and Oroville Dam was built in 1968. Water supplies from these two projects are sold through the State and U.S. Bureau of Reclamation by contract to public agencies.

The California legislature passed the county-of-origin act in 1931 and the area-of-origin act in 1933. With the conflicts over the transfer of water from Owens Valley to Los Angeles in mind, the laws provided legislative assurances to counties of origin that necessary water supplies would be reserved to them for future use.

In 1970, the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA) were both enacted. NEPA requires an environmental analysis and mitigation of impacts on any project that receives federal funds. CEQA applies to any project in the state requires discretionary approval. Water projects often involve dual compliance.

The Endangered Species Act of 1973 authorized the U.S. Fish and Wildlife Service and National Marine Fisheries Service to protect and recover endangered and threatened species and the environments on which they depend. Under this law, water that would normally be delivered to contractors for agriculture and domestic use is channeled for the benefit of threatened and endangered salmon, smelt and other fish. The situation is acute during prolonged drought periods.

In 1994, following several drought years and a an abundance of litigation over water issues, state and federal agencies operating in the Sacramento-San Joaquin Delta came together to coordinate activities. The CALFED Bay Delta Program’s primary objectives were water supply reliability, water quality, ecosystem restoration and levee system integrity.

The Delta Stewardship Council, successor to CALFED, was created in 2009 as an independent state agency to develop a Delta Plan. The co-equal goals of the Delta Plan are to provide a more reliable water supply for California and protect, restore and enhance the Delta ecosystem. The goals are to be achieved in a manner that protects and enhances the unique cultural, recreational, natural resource and agricultural values of the Delta as an evolving place.

Given that the river basins in the Sierra Nevada are the source of the water flowing through the Delta, mountain county water leaders are skittish about sacrificing their water rights to resolve problems in the Delta.

MCWRA Executive Director John Kingsbury said, “Mountain counties are not responsible for the problems in the Delta, and we receive no benefits from the Delta. We do not want to be used to solve the problems in the Delta.”

A trio of water rights experts

A panel of three attorneys who specialize in water issues discussed some of the current risks to water rights in the mountain counties.

David Aladjem is a partner in the law firm of Downey, Brand, Seymour & Rohwer, Sacramento, and represents clients in the acquisition and exercise of water rights. He talked about D-1644, the Lower Yuba River Decision adopted by the State Water Resources Control Board in 2001. D-1644 established long-term instream flow requirements for the Yuba River. Aladjem said that under the decision water rights took second place to the public trust doctrine. In 2008 the State approved the Lower Yuba River Accord, the result of years of negotiations among 17 stakeholders. The Yuba Accord allows the Yuba County Water Agency to operate its Yuba River Development Project for hydropower, irrigation, flood control, recreation and fisheries benefits. The accord also reaffirms the water rights of the Yuba County Water Agency and its member irrigation districts.

Aladjem cited an opinion by California Appellate Court Judge Ronald Robie in 2006 that calls for a balance of appropriative water rights and the public trust doctrine.

An important case on area-of-origin rights is the Tehama-Colusa Canal Authority v. U.S. Department of the Interior. Downey Brand represents the plaintiff. In August 2011 Judge Oliver Wanger, U.S. District Court, Eastern District of California, ruled that that Central Valley Project contractors in the Sacramento Valley are not entitled to a priority of water allocations in dry years over exports to water contractors located south of the Delta. The plaintiff appealed to the Ninth Circuit Court of Appeals. Oral argument was held Dec. 5, 2012. No ruling has been made.

El Dorado Irrigation District General Counsel Tom Cumpston described a lawsuit the district won on appeal that protects its area-of-origin rights. El Dorado Irrigation District v. State Water Resources Control Board tested EID’s priority appropriative water rights. Cumpston said the State Board violated the core principle of senior rights by imposing Term 91 on the district without imposing it on all holders of junior water rights.

Term 91 was developed and made a condition to permits issued after 1965. Term 91 requires the appropriator to curtail diversion of water when the U.S. Bureau of Reclamation and/or State Department of Water Resources are releasing stored water from the CVP or the SWP to meet water quality objectives in the Delta.

In 1991 EID and the County Water Agency (El Dorado) received an assignment of an application from the State Board to appropriate water from the South Fork of the American River using water rights that were granted to EID in 1927 as a reserve for future use. Cumpston said the application for the right to appropriate additional water was made in 1991 because El Dorado County was then beginning the General Plan process in anticipation of future growth.

The State Board included Term 91 in El Dorado’s permit even though other water users with appropriative rights based on applications filed after 1927 are not bound by this restriction.

The trial court found in favor of El Dorado. The State Board, joined by Westlands Water District and State Water Contractors, filed an appeal. Appellate Judge Ronald Robie, in an opinion dated Sept. 8, 2006, upheld EID’s senior water rights. The Court found that inclusion of Term 91 in El Dorado’s permit without conducting a proceeding to include similar restriction in the permits and licenses of junior appropriators in the Delta watershed violated the 1927 priority date of El Dorado’s permit.

Roger Moore, partner in Rossmann and Moore, San Francisco, said that California’s water culture has a “dueling vision of the future.” He described engineers as “technocratic optimists,” as opposed to “curmudgeons,” skeptics who see the natural state as arid. He said appropriation assumptions are in conflict with the political environment. We have “paper rights” and “paper water.”

Moore listed what he called sleeping giant legal principles: 1) area of origin rights; 2) the public trust doctrine; and 3) reasonable use. “Reasonable use can change,” he said.

He pointed out the water supply forecast from the Department of Water Resources that by the year 2050 the snowpack in the Sierra Nevada will be 25-40 percent less than today. “We will have a whole lot less water to serve an even greater population,” he said.

The next joint MCWRA and ACWA meeting will be held on March 15 in Auburn. For more information, visit mountaincountieswater.com.

LEAVE A COMMENT

Discussion | 6 comments

  • Michael J. PreszlerMarch 11, 2013 - 7:51 am

    I attended this meeting and this is a great summary article! Thank you!

    Reply | Report abusive comment
  • chrispytahoeMarch 11, 2013 - 12:44 pm

    The cycle life of water is infinite. As long as we have an atmosphere. Water does not just disappear from the planet. We are NOT running out of water, we are running out of water where the POPULATION is. So the POPULATION in those areas should close their golf courses for starters. We have plenty of water to service the OUR population here in Tahoe. It would take millions of years for us to deplete the lake.

    Reply | Report abusive comment
  • Jim RiordanMarch 11, 2013 - 1:01 pm

    Executive Director John Kingsbury said, “Mountain counties are not responsible for the problems in the Delta, and we receive no benefits from the Delta. We do not want to be used to solve the problems in the Delta.” Thank you John you have summarized my feelings exactly. Keep our water hear and the hell with the Delta.If the good Lord wanted Smelt living there, He would have provided for them. To the rest of you, Quit trying to engineer nature and get real lives.

    Reply | Report abusive comment
  • Jim RiordanMarch 11, 2013 - 1:06 pm

    oops, Sorry, "hear" s/b "here".

    Reply | Report abusive comment
  • Carol LouisMarch 13, 2013 - 9:44 am

    In reference to the 1928 amendment to the California Constitution mandates holders of water rights including riparian must use the water and do so reasonably and beneficially. Failure to do so results in loss of the right. EID continues to crank down water use thru ever increasing rate increases. There has always been a well known edict in water "Use it or Loose it". EID is putting EDC in collision of State Water Rights. If we do not use the water we generate the state will take it. When is EID going to "Get It"? EID has only focused on revenue generation which is extremely short sighted. The manipulation of our water supply for future developments has to stop. The water rights of El Dorado County belong to the residents and should be used for their benefit at a reasonable cost.

    Reply | Report abusive comment
  • Phil VeerkampMarch 13, 2013 - 11:21 am

    Carol, our brain waves must be synced up. Use it or lose it. EID’s long term debt assumes income from FCCs (facility capacity charges) generated through growth. But there exists a very strong sentiment to keep El Dorado County rural. Unfortunately the desire to preserve is at tension with our desire to maintain our water rights. We CANNOT simultaneously keep our water rights and halt development and halt water rate increases resulting from unrealized development. Use it or lose it. Preserving our rural character will almost certainly send our water rights south and our water rates north.

    Reply | Report abusive comment
.

News

Goodbye LUPPU, hello LRPU

By Chris Daley | From Page: A1, 2 Comments

 
Past due state taxes bring arrest

By Cole Mayer | From Page: A1, 1 Comment

 
Sanford trial: Prosecution, defense rest

By Cole Mayer | From Page: A1 | Gallery

Woman, dog back from Oso

By Wendy Schultz | From Page: A1, 6 Comments | Gallery

 
 
 
DA candidate to remain on ballot

By Dawn Hodson | From Page: A9

Dog talk with Uncle Matty: Benji and the Bickersons

By Matthew Margolis | From Page: A10

 
CPCSD seat unfilled

By Dawn Hodson | From Page: A14, 1 Comment

Lew Uhler backs Ranalli

By News Release | From Page: A14, 1 Comment

 
.

Opinion

Something to think about: Teach your children well

By Wendy Schultz | From Page: A6

 
Retain Bill Schultz as Recorder-Clerk

By Mountain Democrat | From Page: A6, 4 Comments

 
.

Letters

District 4 candidate

By Letters to the Editor | From Page: A7, 4 Comments

 
Open meetings

By Letters to the Editor | From Page: A7, 3 Comments

Volunteers and homeless camps

By Letters to the Editor | From Page: A7, 9 Comments

 
Bicycle events and traffic control

By Letters to the Editor | From Page: A7, 1 Comment

Evacuation

By Letters to the Editor | From Page: A7, 3 Comments

 
.

Sports

Jennings wins national title

By Democrat Staff | From Page: A11, 1 Comment | Gallery

 
Savannah Stephens can swing the bat

By Jerry Heinzer | From Page: A11 | Gallery

King of the West roars into Placerville

By Gary Thomas | From Page: A11

 
First and goal: Bunt etiquette

By Mike Bush | From Page: A11

Oak Ridge suffers tough 2-1 setback

By Mike Bush | From Page: A11

 
Roundup: April 17, 2014

By Democrat Staff | From Page: A12 | Gallery

.

Prospecting

Plantastic sale this Saturday

By Dawn Hodson | From Page: B1 | Gallery

 
Spring art brightens government center

By Democrat Staff | From Page: B2 | Gallery

Things to do: April 18, 2014

By Democrat Calendar | From Page: B2

 
Time out: A grand time at Grand China

By Earle Camembert | From Page: B3 | Gallery

Temple Kol Shalom hosts Passover Seder

By News Release | From Page: B3

 
Student art featured for Third Saturday

By News Release | From Page: B3

Promenade in high style

By Historic Old Sacramento | From Page: B4

 
Sac State Presents ‘Gypsy’

By California State Unversity, Sacramento | From Page: B4

Friday nights are engaging at the de Young

By Fine Arts | From Page: B5

 
Hats On For the Kids raises money for children

By Democrat Staff | From Page: B6

See what is inside the vault

By Center For Sacramento History | From Page: B6

 
Eggstravaganza

By Fairytale Town | From Page: B6

Gallery tips a hat to Dr. Seuss

By Democrat Staff | From Page: B7

 
Museum presents ‘Diesel Days’

By California State Railroad Museum | From Page: B7

Engagement: Adam Frega and Wednesday Bienusa

By Democrat Staff | From Page: B8

 
Duty: Air Force Airman Brian Polk

By Democrat Staff | From Page: B8

Cal Stage presents a season of challenging productions

By California Stage | From Page: B8

 
Duty: Army Pfc. Kyle W. Beasy

By Democrat Staff | From Page: B8

KVIE calls for artists

By Kvie | From Page: B9

 
A Couple of Blaguards tell tales

By Harris Center for the Arts | From Page: B9

America’s ClayFest II celebrates a rich history

By Blue Line Arts | From Page: B14

 
Fine Arts Museums feature two shows

By Fine Arts | From Page: B15

See wildflowers on train ride

By Railtown | From Page: B15

 
Easter at Northstar is family friendly

By Northstar California | From Page: B15

.

Essentials

Crime Log: March 28-30

By Cole Mayer | From Page: A2

 
.

Obituaries

Frederick Wilbur Heymann

By Contributor | From Page: A2

 
Arthur W. Cornell

By Contributor | From Page: A2

Frank “Bud” Kraus Jr.

By Contributor | From Page: A2

 
Roy Cluness Chaix

By Contributor | From Page: A2

.

Real Estate

Faster sales with spring staging

By Ken Calhoon | From Page: HS4

 
Coldwell Banker outsells the competition

Press Release | From Page: HS7

Handsome Redmond suits modern families

Press Release | From Page: HS11

 
Growing your own

By Marni Jameson | From Page: HS14

 
Fraud workshop scheduled

Press Release | From Page: HS21

HCD launches assistance program

Press Release | From Page: HS22, 1 Comment

 
EZ Mortgages Inc. opens Placerville office

By News Release | From Page: HS22, 2 Comments

.

Comics

TV Listings

By Contributor | From Page: A13

 
Sudoku

By Contributor | From Page: A13

Speed Bump

By Contributor | From Page: A13

 
Working It Out

By Contributor | From Page: A13

Shoe

By Contributor | From Page: A13

 
Rubes

By Contributor | From Page: A13

Tundra

By Contributor | From Page: A13

 
.

Home Source

Faster sales with spring staging

By Ken Calhoon | From Page: HS4

Coldwell Banker outsells the competition

Press Release | From Page: HS7

Handsome Redmond suits modern families

Press Release | From Page: HS11

Growing your own

By Marni Jameson | From Page: HS14

Fraud workshop scheduled

Press Release | From Page: HS21

HCD launches assistance program

Press Release | From Page: HS22, 1 Comment

EZ Mortgages Inc. opens Placerville office

By News Release | From Page: HS22, 2 Comments