Ray AmRhein asks the Pajaro Valley Water Management Agency “Who owns the groundwater in a farmer’s well” and finds the answers, and the agency’s practices, violate the law — and the private property of Santa Cruz County residents. In this Watsonville Register-Pajaronian article (4/30/2003), AmRhein uses his 49 years of experience in water law to compare PVWMA practices with the law, and finds that “for over 10 years the [PVWMA] directors have been acting under the false premise that the state owns the water.”
By [post_author] –
I have long challenged the agency’s directors and the Pajaro Valley Water Management Agency’s attorney at public meetings to answer the question: “Who owns the groundwater in the Pajaro Valley groundwater basin?” Before and after the “approval” by the voters of Measure N on Much 5, 2002, I warned the directors at public meetings that the augmentation charge on water pumped in the basin was not a fee, but a tax, and that the approval of the currently assessed augmentation charge required a two-thirds vote of the voters. Measure N received but barely a simple majority of the vote.
At a board meeting on May 1, 2002, I asked the board of directors with the agency’s lawyer present: “Who owns the groundwater in a farmer’s well.” The lawyer spun an answer, but the only director who responded was Mike Dobler. He said that he looked it up in the California Water Code and found the answer: “The State owns the water.” The lawyer sat mute, leaving Mr. Dobler’s answer stand!
In a letter dated May 7, 2002 to Charles McNiesh, the agency’s general manager, the agency’s lawyer put the spin in writing, saying: “At the board meeting, Mr. AmRhein asked the question, ‘Who owns groundwater in a farmer’s well?’ I [the lawyer] responded that pursuant to the California Water Code, the State of California owns all waters in the state, and that anyone holding a water ‘right’ simply holds a ‘usufructary right,’ or a right to the water to which he claims a right. At the board meeting I agreed to provide Mr. AmRhein with the citation for that statement. The citation is California Water Code Section 102, and following.”
In an e-mail communication on May 2, 2002, I tried to stop the spin with a more pointed question. In the next paragraph of the lawyer’s letter of May 7, 2002, she went into a dizzying spin: “Mr. AmRhein’s email contains a restated question, which is, ‘Who owns the water that a farmer pumps from his well to irrigate his crops… [pertaining] to the water as it exits the farmer’s well.’ Generally, under California water law, an overlying landowner has certain rights to use groundwater pumped from his property, subject to restrictions based on many potential factors. California law related to water rights is extremely complex.”
For over 10 years the directors have been acting under the false premise that the state owns the water. Allow me now to give some straight answers.
- First, in general, the State of California does not own the groundwater in California. Therefore, the State of California does not own the groundwater in the Pajaro Valley.
- Second, a landowner in the Pajaro Valley groundwater basin owns the groundwater under his land in common with all other owners whose land overlies the basin. The ownership of a landowner is not individual or private while the water remains in a natural state under his land.
- Third, the right of a landowner in the water under his land is the right to take possession of the water; for example, by pumping it. The law says it this way: The landowner has the right to extract the water. At the moment the water enters and leaves the pump, the water becomes the property of the landowner.
What does Water Code Section 102 really say? “All water within the State is the property of the people of the State, but the right to the use of the water may be acquired by appropriation in the manner provided by law.” Compare the code section with what the lawyer and Mr. Dobler spun it to say in the lawyer’s words: “… the State of California owns all waters in the state, and that anyone holding a water ‘right’ simply holds a ‘usufructary right,’ or a right to the water to which he claims a right.” The lawyer and Mr. Dobler while spinning made a great leap from the water is the property of the people of the State to the water is the property of the State!
A celebrated case, City of Barstow v. Mojave Water Agency, decided in 2000 by the California Supreme Court, confirmed that the interest of the State in ground water is not an ownership interest, but rather a nonproprietary, regulatory one. Until a landowner takes actual possession of water, the ownership is in the people, or at least that portion of the people who may own the surface of the soil within a basin.
The courts hold, as a general rule, that groundwater, while it is under the ground, is not property, but is held in public or common ownership. As a common owner, an owner of the overlying land has the right to take the water, and when he takes possession of water, it becomes his property; he owns it. Neither the State of California nor the Pajaro Valley Water Management Agency owns the water in the Pajaro Valley groundwater basin.
May the State regulate groundwater? Of course it may, but the State does not have an absolute right to regulate groundwater; that is, its right to regulate is not self-executing. An overlying user of groundwater may only use the water for any reasonable beneficial use. The State may step in when there is abuse. The PVWMA, as an agency of the State, has not yet undertaken to regulate the use of groundwater.
The water that a farmer in the Pajaro Valley uses to irrigate his crops is the property of the owner of the land from which the water is pumped. When the farmer takes possession of the water as it comes from his pump, it is his water; it is his property.
The Pajaro Valley Water Management Agency does not own any part of the water, and the Agency cannot sell that which it does not own. It is even more ludicrous that the farmers in the Pajaro Valley should pay for water they already own. See the Measure N voter pamphlet (March, 2002) wherein the POWMA approved this false statement as being the truth: “You pay for the water you use.” Two directors of the Agency, Frank Capurro and Mike Dobler, signed that statement. Never during the campaign did the lawyer inform the voters or the directors that the statement was untrue. The farmers of the Pajaro Valley are like the many people who throughout history have bought and paid for the Brooklyn Bridge.
I rest my case. Is it so “extremely complex”?
The board is now considering a measure to increase the tax to suck even greater amounts of money out of the agricultural economy of the Pajaro Valley. How long before the people have had enough?
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Ray AmRhein is a retired lawyer who has been involved with water law on the Central Coast for more than 49 years. He served on the committee that helped write the Pajaro Valley Water Management Act and served as the agency’s first lawyer serving pro bono.
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