CA: Water: Who owns the groundwater in a farmer's well? It is time for straight answers from the PVWMA, says AmRhein

by Ray AmRhein
Freedom 21 Santa Cruz

posted on 5/23/03

SUMMARY: Ray AmRhein asks the Pajaro Valley Water Management Agency "Who owns the groundwater in a farmer's well" and finds the answers, and the agengy'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."

Full Text:

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?

Raymond AmRhein was instrumental in the formation of the PVWMA and served as its original legal counsel

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RELATED STORY:

Augmentation fee increase questioned

May 16 2003 12:00AM By

By MICHAEL SEVILLE

OF THE REGISTER-PAJARONIAN


Watsonville, CA - A robust audience crammed the Watsonville City Council Chambers Wednesday night to address the Pajaro Valley Water Management Agency Board as it considered increasing augmentation charges for water used in the Pajaro Valley Basin, with many questioning the timing and legality of the issue.

Before the board could open up the forum for public discussion, Raymond AmRhein, who was instrumental in the formation of the PVWMA and served as its original legal counsel, began to voice concerns of conflict of interest in the augmentation charges. He claimed that three individuals on the board would unfairly benefit from the decision.

During public comments a large number of local farmers took turns blasting the board for its decision to implement the increase in charges for groundwater in such a dire economic situation.

"I have been farming in this valley for 45 years and we farmers have endured and survived floods, droughts and heat waves," said Guy George, a local farmer. "I am not sure that the Pajaro Valley farmers can survive the increase in fees that is being proposed."

The PVWMA has made a proposal to increase its augmentation fees from $80 to $120 per acre-foot effective July 1. The meeting held Wednesday night was the second of the required public hearings on the matter before the board votes on the proposal at its next meeting scheduled for May 28.

George contended that at $80 per acre-foot, which is the current PVWMA charge, times the 75 acres that he farms, his annual bill equals $18,000. Should the increase occur and charges be raised to $120 per acre-foot, he would in turn be charged $27,000 annually.

"This is going to destroy farms in the Pajaro Valley when nothing else in the past could," he said.

PVWMA Chair Frank Capurro addressed the audience at one point, stating the decision was going to affect everyone who lives in the valley.

"You need to understand that this is going to affect everyone up here (on the board) just as much as it affects you," said Capurro.

Capurro is a coastal farmer who stated that he is currently left with only one well that has not been affected by overdraft salt water intrusion and that the decision to import water from outside the area would be beneficial to the entire region.

Charles McNiesh, general manager of the PVWMA, said that the decision was being made because of the need to bring in supplemental water to battle the current water shortage.

"We are in a unique opportunity to acquire an outside supply of water that might not be there should we put off this decision to a later date," said McNiesh, addressing questions of why the decision had to be made now and not put off until a later date when the economy was more favorable and farmers better situated to foot such increases.

The PVWMA is currently looking into acquiring water through the Broadview acquisition, an area in the Central Valley that's owners have agreed to sell the water to the PVWMA. The agency will in turn use the water to replenish the groundwater that is used to irrigate the agricultural fields in the Pajaro Valley Basin.

Local farmer Dick Peixoto questioned the board as to how much water was pumped last year. He specially questioned why the board was continually using the number of 69,000 acre-feet when new meters being used suggest the number is closer to 57,000 acre-feet being pumped annually.

"Things that would give your agency credibility are not being considered and I question why actual numbers are not being used," said Peixoto.

He went on to say that not only have most of the lettuce growers been forced out of the Pajaro Valley by increasing costs, but that strawberry farmers are beginning to leave as well.

John Eiskamp, the most outspoken board member against the augmentation increase, questioned whether Measure N, which was passed in 2002 increasing the charge from $50 to the current $80 per acre-foot, needed to garner a two-thirds majority to pass. It ended up passing with a simple majority - by approximately 200 votes.

In 1998, Measure D was passed by local voters. It rolled back augmentation fees from $75 to $50 per acre-foot. This hurt the agency, which lost a substantial amount of potential capital over nearly four years.

The issue is now up for the board to decide. Board members will make their final vote on the matter during next meeting scheduled for May 28 in the Watsonville City Council Chambers.