Members of the El Dorado Water and Power Authority listened to a short history on state water rights at their meeting on April 9.
Related to current efforts by EDWPA to pursue an additional 40,000 acre-feet of water rights from the State Water Quality Control Board, the presentation, called “Water Rights 101,” was made by attorney David Aladjem.
Aladjem works for the legal firm that’s been hired to litigate the water rights application for EDWPA.
Noting that the subject of water is a complex topic, the attorney began by saying there are four classes of water rights in California: those based on ownership of real property; based on productive use of water (which are called appropriative rights consisting of pre- and post-1914 rights); based on contracts such as water service contracts; and complex rights such as settlement contracts, recycled water contracts and conjunctive use of surface and groundwater.
Appropriative rights are the bread and butter of water rights in California, said Aladjem. To have it means you take control of water at a certain point, put the water to productive use, use it on a specific parcel of land during a defined season of the year and only use a reasonable quantity of it.
One can acquire an appropriative right by applying to the State Water Qaulity Control Board for a permit, however, the permit is not a permanent right to the water. Once that right is “perfected” over time, one can apply for a license, which is a permanent right to the water. To be granted a license, it has to be demonstrated to the water board that the use is reasonable, beneficial and in the public interest.
Water rights can be lost, he said, adding that if the water is not used for five years, the right can be forfeited.
Water can also be transferred on a long- or short-term basis with approval from the water board. Those with a post-1914 appropriative right who do a transfer for less than a year are exempt from the California Environmental Quality Act process. Those proposing more than a year-long transfer with pre-1914 water rights have to go through CEQA.
But before a transfer can be approved, it has to be demonstrated that there’s no injury to other water right holders, no unreasonable impacts on fish or wildlife, no unreasonable impacts on the economy and that they are in compliance with CEQA.
Turning to the history behind the area-of-origin doctrine, Aladjem said it arose out of the building of the Los Angeles aqueduct and the transfer of water from the Owens Valley to L.A.
In 1930s that led the state Legislature to adopt a county-of-origin statute that says water originating in a county, but exported elsewhere, can be called back if the county develops a need for the water.
Since the 1930s the Legislature has passed other area-of-origin statutes, he said. At the same time, while agencies have promised to protect water rights, those don’t necessarily hold up. One example of this being where the Bureau of Reclamation promised to never send any water out of the Sacramento Valley.
The last topic Aladjem addressed was a discussion of the Bay-Delta Conservation Plan. That plan arose out of the dramatic decline in the population of open water fish species in the early 2000s, he said. As a result, environmental groups sued, which led to limitations on water exported south by federal agencies. A Delta-related task force and more water legislation followed in 2009 with the goal of protecting wildlife and habitat.
Recently an environmental impact report for the Bay-Delta plan was released. At over 44,000 pages, it is expected to draw 100,000 comments — more than any other previous document.
Included in the plan is a new North Delta conveyance (pumps) and 113,000 acres of restored habitat, said Aladjem. But it doesn’t mention the two tunnels that have been proposed for transferring water south. The real question is whether these measures will solve the problem and whether there is enough consensus among all the different parties to move it forward, concluded the attorney.
Also covered at the meeting was an update by General Manager Dave Eggerton on the agency’s plan to apply for 40,000 acre-feet of water rights based on area-of-origin statutes.
He told the board that two scoping meetings have been held so far — one in Sacramento and the other in Placerville. The draft Environmental Impact Report on the project is expected to be done by the end of 2015 and then circulated for review and comments. The final EIR is expected to be finished by 2016, with a request for a hearing with the state water board in 2017.
Supervisor Ron Mikulaco asked if EDWPA couldn’t ask for a hearing now before millions are spent on an application that may be turned down, calling the project a big gamble. Aladjem said the water board wouldn’t accept an application without an EIR and would tell them to either do one or they would do one at EDWPA’s expense. “Doing it in-house saves money,” said Aladjem, “and helps build consensus before going before the board.”
El Dorado Irrigation District Director Greg Prada then suggested asking Sacramento to put money into the project so they have “some skin in the game.”
Aladjem answered that a decision by the California Supreme Court said you can’t have those kinds of discussions until the CEQA process has been done. “So we have to work within these parameters,” he said.
EID Director Dr. Coco added that if EDWPA did go into partnership with Sacramento, they would want to share in control of the water rights. “These are our water rights,” he said. “If we don’t secure these rights we lose them … it is our obligation to the public to secure what belongs to us … These water rights will be worth a lot in the future and it’s the county’s obligation to continue its stewardship role.”
Contact Dawn Hodson at 530-344-5071 or [email protected] Follow @DHodsonMtDemo on Twitter.