Introduction

Priority: the right to precedence over others in obtaining, buying, or doing something – Webster’s New World College Dictionary 

First in time, first in right has long served as one guiding principle of water law in California. Simply put, this priority system generally holds that the first person to claim water and use it has a right superior to subsequent claims. In times of shortage, it is the most junior of water rights holders who must cut back use first.

In recent years, ever-growing urban and agricultural water demands and environmental regulatory restrictions on water systems have prompted some to call for a different approach to water rights; one of equitable apportionment in which all users - regardless of priority – “share the pain” of the disparity between supply and demand.

The importance of water rights was affirmed in a California Supreme Court ruling issued August 22 in City of Barstow v. Mojave Water Agency. In its unanimous ruling, written by Justice Ming W. Chin, the state Supreme Court found that “water right priority has long been the central principle in California water law.” Justices then determined that while a court can impose a “physical solution to achieve a practical allocation of water to competing interests, the solution’s general purpose cannot simply ignore the priority rights of the parties asserting them.”

It was the state Supreme Court’s first major water rights decision since the 1983 landmark ruling on the public trust doctrine. Some view the Mojave ruling as a victory for senior water rights holders in not only the Mojave River Basin, but throughout the state.

“The Supreme Court affirmed that the priority system in California is alive and well. Essentially, equitable apportionment is dead,” said attorney Robert Dougherty. Dougherty represented the seven farmers (the Cardozo Group) who contested a Mojave River Basin groundwater pumping plan imposed by a lower court.

Despite the apparent victory for these farmers, attorney Jim Markman, who represented one of the parties (the city of Hesperia) that endorsed the groundwater management plan, does not see the state Supreme Court’s opinion as a defeat. “I think everyone won,” he said. “They all accomplished what they set out to do. We do have groundwater management in the Mojave River Basin and the farmers have convinced the court that the physical solution can’t be imposed on them because of their overlying rights.”

The Mojave River Basin adjudication is complex, with many layers of legal issues. Its foundation, however, offered a straightforward question: Can a judge require groundwater users to comply with a management plan based on a formula of universal cutbacks but without establishing individual pumping limits?

The trial court said yes: It approved a negotiated settlement to reduce groundwater overdraft that did not include a well-by-well determination of who had rights to pump what amount, and imposed it on all users – even those who had not agreed to the settlement. That decision was rejected by the 4th District Court of Appeals, and the state Supreme Court’s decision to hear the case set the stage for a judgment with the potential for far-reaching impact.

“The Supreme Court ruling is far more significant for what it didn’t do,” said Brian Gray, a professor of law at the University of California’s Hastings College of Law. “It did not uphold the trial court, which would have turned water rights in California upside down.”

The significance of the state Supreme Court’s possible decision is why so many other farming organizations and cities – many with senior rights – filed amicus briefs as the case moved from the trial court to the appellate court to the state Supreme Court.

Many believed the pending decision could hold ramifications for the ongoing Bay-Delta water rights hearings before the State Water Resources Control Board (State Board). In recent years, the State Board has expressed interest in an “equitable apportionment” approach to resolving competition over the Delta’s water in which all users – not just the junior water rights holders – would be asked to cut back their diversions.

“In a general sense, the ruling could have implications for the State Board and Bay-Delta water rights hearings,” said Ed Tiedemann, of Kronick, Moskovitz, Tiedemann and Girard. “It gets away from the idea of equitable apportionment, which the State Board has tended to favor in its ‘share the pain’ approach to Delta water quality standards.”

But attorney Art Kidman, who represented the city of Barstow, argues that the decision does not rule out equitable apportionment as long as water rights are taken into consideration first. “The doctrine of equitable apportionment may be OK,” he said, “but first you have to adjudicate the priorities of the rights. The trial court’s equitable apportionment in Mojave did not define those overlying rights. If it had done that first, then it could have gone on to a number of possible methods of applying reasonable use, equitable apportionment and a physical solution.”

The state Supreme Court ruling resolved many outstanding questions related to groundwater management in the Mojave River Basin, located in the rapidly growing High Desert region east of Los Angeles. But not all the implications of the ruling for the Mojave Basin are clear at this point; several issues raised by the case will return to the trial court judge for disposition. How those issues are decided could lead to further legal wrangling. As for the ruling’s statewide impact, questions linger.

The legal system is known for its slow, methodical approach to change, and, at times, the most important impact of a case can rest on the meaning of one sentence or one footnote in an intricate ruling. Already, there is interest in a phrase contained in footnote 13 in the Mojave ruling and what it may mean in future water rights cases.

The footnote discusses implications of a 1979 ruling, In re Waters of Long Valley Creek Stream System. In Long Valley, the state Supreme Court found that while unexercised riparian rights, in most circumstances, were not lost by non-use, such an unexercised right could be assigned a lower priority in a streamwide settlement compared to active appropriative and riparian rights. Footnote 13 suggests that such a principle could be applied to overlying groundwater rights, concluding with this sentence: “If Californians expect to harmonize water shortages with a fair allocation of future use, courts should have some discretion to limit the future groundwater use of an overlying owner who has exercised the water right, and reduce to a reasonable level the amount the overlying user takes from an overdrafted basin.”

Some attorneys, such as Markman, theorize that this footnote would allow for a reduction in an unexercised groundwater right - especially in an overdrafted basin like the Mojave. “Agricultural pumping alone in the lower subarea would consume the safe yield of the Mojave Basin,” he said. “Remember, at the time we started the case we had some 250,000 people living in this area in these small towns and cities. For those of us who had to serve water to them, you don’t have a choice. You can’t just say, ‘Well, it’s too expensive, we’ll stop serving the people.’ You have to find a way to serve water to the people.”

Other attorneys do not believe the footnote is that significant; believing its call to reduce extractions “to a reasonable level” refers only to the state Constitution’s existing Article X, Section 2, which requires that all water resources must be put to beneficial use. This, they say, simply means this clause applies to all users – including those who hold overlying groundwater rights.

This issue of Western Water discusses the Mojave River Basin case, its background and history, the proposed physical solution, and what the state Supreme Court Mojave opinion may mean for the Mojave Basin and the rest of California. Many of the quotes were drawn from the American Ground Water Trust’s September 29 conference in Anaheim, which included a panel discussion of the Mojave adjudication. For more background information, please refer to the Foundation’s newly revised Layperson’s Guide to Water Rights Law and the Layperson’s Guide to Groundwater.

NOTE: A complete copy of this 16-page magazine is available from the Foundation for $3. Visit our on-line store and add the September/October 2000 issue of Western Water to your shopping cart.

Editor’s Desk

In a normal year, groundwater supplies about one-third of California’s urban and agricultural water needs. In a drought year, that figure jumps to almost more than one-half (about 60 percent.) Half of all Californians rely on groundwater for at least a portion of their drinking water. Yet few Californians know anything about our groundwater resources.

Groundwater is a hidden resource, relied upon by growing cities and thirsty farms. Groundwater is a renewable resource that is intensely managed in some places and hardly managed at all in other places. Recent popular movies like A Civil Action and Erin Brockovich have brought groundwater to the surface in the public’s mind. As a result, people have become more interested in learning about this source of drinking water and they have questions about its quality.

With students, water rate payers and elected officials all wanting to know more about groundwater, the Foundation offers many educational programs including the California Groundwater Map, the Layperson’s Guide to Groundwater, videos on groundwater management and conjunctive use, student curricula on groundwater and MTBE, slide cards on groundwater pollution and water tours.

Speaking of tours, we’re planning a new Southern California Groundwater Tour for 2001, to be held September 12-14. Our previous groundwater tours have traveled around northern and central California. This tour will begin in Ontario and travel to Orange, Los Angeles, Kern and San Bernardino counties and the Oxnard plain. We will visit dairy farms, recharge facilities, air stripper sites, wells and the area that is the subject of this magazine – the Mojave River Basin.

Also in southern California we will assist the Association of California Ground Water Agencies (AGWA) with its conference on conjunctive use April 11-12, 2001 in Ontario. We recently joined with Montgomery Watson Americas, Inc. to develop the AGWA report Groundwater and Surface Water in Southern California: A Guide to Conjunctive Use. This policy and technical booklet details the vast amount of groundwater storage available in southern California groundwater basins. The guide is now available from the Foundation.  

To further promote the protection of groundwater in California and the West, the Foundation has assisted the Nebraska-based Groundwater Foundation in developing and promoting Groundwater Guardian. This program supports, recognizes and connects communities protecting groundwater. It is designed to empower local citizens and communities to take voluntary steps toward protecting their groundwater resources. In California, the Water Education Foundation is an affiliate member supporting groundwater education work in Atascadero, Desert Hot Springs, Lompoc, Murrieta, and Orange and Yolo counties. If you would like to have your community’s good work on groundwater resources recognized, contact us at the Foundation and we will help you get your community designated as a Groundwater Guardian community.

As you can see, the Foundation is dedicated to keeping the invisible water beneath our feet clearly in our view!

– Rita Schmidt Sudman

In the News

New Settlement to Yield More Dollars for Mine Cleanup

With drainage water described as “more caustic than battery acid,” how to clean up Iron Mountain Mine – and who should foot the bill – has long been a major pollution remediation problem. For decades, rain runoff from the mine, located near Redding, caused heavy metals to spill into creeks and waterways and on into the Sacramento River, killing salmon and other aquatic life far downstream.

The mine, a fractured 4,000-acre mountain that once yielded copper, zinc, gold, silver and the mineral pyrite, used to produce sulfuric acid, was declared a federal Superfund site in 1983 – some 20 years after it closed.

A treatment plant in operation at the site since 1994 is credited with removing more than 5 million pounds of heavy metals, including copper, cadmium and zinc, that would otherwise have flowed down Spring Creek and into the Sacramento River. (Lime is used to neutralize the runoff.) But the treatment does not come cheap; the plant costs about $5 million a year to operate. Nor does the Spring Creek Debris Dam/treatment system capture all the drainage that leaches into other creeks around the mine.

These acidic discharges will be further reduced thanks to an innovative settlement reached by governmental agencies and the company that now owns the mine, Aventis CropScience USA Inc. Terms of the public-private partnership were released in October, ending nine years of litigation and three years of settlement negotiations over the mine’s cleanup costs.

The settlement calls for Aventis (formerly known as Rhone Poulenc Inc.) to pay $160 million into an insurance fund that will ultimately generate some $800 million for long-term water treatment at the mine. Without such a settlement, clean up costs would have been borne by the federal government and, ultimately, taxpayers. Aventis, in turn, will be absolved of future liability at the mine. The company also agreed not to try to recover the $150 million it says it already has spent on mitigation at the mine.

“This agreement is an excellent example of government and the private sector working together to develop a solution to a serious environmental problem,” Winston Hickox, secretary of the California Environmental Protection Agency (Cal-EPA), said in a prepared press release.

Money generated by the fund will pay for the continued operation costs of the existing treatment plant that captures runoff from the three main mines at Iron Mountain. It also will fund construction of a new debris dam on nearly Slickrock Creek so that drainage from that portion of the mine site can be routed through the treatment system. Once that project is completed, officials with the U.S. Environmental Protection Agency estimate that 95 percent of the runoff from the mine will be captured and treated.

State officials estimate there are some 39,000 old and abandoned mines in California, a legacy of the state’s rush to riches history. At least 130, including Iron Mountain Mine, are known to discharge heavy metals into California waterways. According to the U.S. Geological Survey, drainage waters from Iron Mountain are the most acidic waters ever measured. The pH value of the water is negative 3.6, below the normal pH scale of zero to 14. On this scale, 7 is neutral, the lower the number, the more acidic the substance.