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Paso Robles property owners win water rights battle

September 3, 2015
Supervisor Bruce Gibson is an advocate for lessening the public's water rights.

Supervisor Bruce Gibson is an advocate for lessening the public’s water rights.

By KAREN VELIE

A group of Paso Robles property owners won a major court battle in their war against several water purveyors who contend they have notoriously taken water from the Paso Robles Basin for at least five years and now have greater rights to the water than the property owners.

In response to the San Luis Obispo County Board of Supervisors enacting an urgency ordinance that limits water use over the basin, more than 200 property owners, called Protect our Water Rights, filed for quiet title. The plaintiffs allege the ordinance limits water usage “regardless of the priority of their California overlying property rights,” according to a ruling by San Clara County Superior Court Judge Peter Kirwan.

California state law provides overlying property owners the right to pump underground water for reasonable and beneficial uses. Those purveyors selling water have lesser rights to the water during an overdraft.

However, if the water purveyors – San Luis Obispo County, City of Paso Robles, San Miguel Community Services district, Atascadero Mutual Water Company and the Templeton Community Services District – can prove that the basin was in overdraft for the past five years and that they then openly and notoriously took water from the basin, they may get prescriptive rights. Prescriptive rights would provide those agencies a greater right to pump water from the basin than the property owners.

According to Kirwan’s ruling, the property owners requesting quiet title only need to prove they have title to the property and that it lies over the basin. The burden then shifts to the agencies claiming prescriptive rights to show the validity of their claim.

“An appropriative taking of water which is not surplus is wrongful and may ripen into a prescriptive right where the use is actual, open and notorious, hostile and adverse to the original owner, continuous and uninterrupted for the statutory period of five years and under claim of right,” the ruling says.

In a May 31, 2010 email from then SLO County Director of Public Works Paavo Ogren to SLO County Supervisor Bruce Gibson, Ogren explains prescriptive rights and notes that the Paso Robles basin is not in overdraft.

“Our current studies do not indicate that the Paso basin is in overdraft,” Ogren writes. “Even issues of well interference do not provide direct evidence of overdraft, and damages do not exist just because someone has to drill deeper to get water because others have installed wells to satisfy their overlying uses.”

On, Aug. 28, Kerwan ruled that none of the water purveyors have sufficiently proven that they have prescriptive rights. He gave each of the purveyors 10 days to amend their defense.

“Judge Kirwan affirmed the law,” said Cindy Steinbeck, spokesperson for Protect our Water Rights. “The law is clear, purveyors such as the county and cities only have a right to extract surplus water from the basin. To gain a prescriptive right, the defendants must openly and notoriously, illegally continue pumping for a period for five years during a time of overdraft. There has never been an official claim or finding of an overdraft condition in the Paso Robles Groundwater Basin. Without that, there can be no prescription.”

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This ruling doesn’t give anybody the right to squander the resource. The wholesale ” in your face” development of previously un irrigated land for vineyards is way out of line.


The following is an excerpt from:


A PRIMER ON CALIFORNIA WATER RIGHTS Prepared by Gary W. Sawyers, Esq.


Found here:

http://aic.ucdavis.edu/events/outlook05/Sawyer_primer.pdf


“Regardless of the nature of the water right in question, two very important principles will always apply. First, under the California Constitution, water must be put to reasonable and beneficial use. No water right grants any party the right to waste or make unreasonable use of water, and any water right can be curtailed or revoked if it is determined that the holder of that right has engaged in a wasteful or unreasonable use of water. Second, no water user in the State “owns” any water. Instead, a water right grants the holder thereof only the right to use water (called a “usufructuary right”). The owner of “legal title” to all water is the State in its capacity as a trustee for the benefit of the public. The so-called “public trust doctrine” requires the State, as a trustee, to manage its public trust resources (including water) so as to derive the maximum benefit for its citizenry. The benefits to be considered and balanced include economic, recreational, aesthetic and environmental; if at any time the trustee de termines that a use of water other than the then current use would better serve the public trust, th e State has the power and the obligation to reallocate that water in accordance with the public’s i nterest. Even if the water at issue has been put to beneficial use (and relied upon) for decades, it can be taken from one user in favor of another need or use. The public trust doctrine therefore means that no water rights in California are truly “vested” in the traditional sense of property rights.”


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First, nobody is claiming title to squandering water. Second, the public trust doctrine is vaguely just that. Private rights (possession & title) are on the 90% side of the equation while the public trust is on the 10% side of this equation. Good try, the best Gov can do is force a sale of private rights.


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So in your opinion, breaking new ground to plant permanent crops during a drought and declining ground water levels is a responsible farming practice because you own all of the water under your property? Overlying ground water rights are correlative which means you don’t have the right to dry up all of your neighbors wells just because you want to exercise your rights. Real farmers don’t dry up a resource just because they can.


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If you don’t want them to use their land, in order that you can continue to use yours in the manner you’ve become accustom, you need to buy them out. Chasing them out with regulations is bullshit.


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You just don’t get it. I don’t care what you do with your land and I don’t want any regulations! But you dry up my well because you are too stupid to realize there is a problem, you’re going to have one hell of a fight on your hands!


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Soooo, your water use trumps mine?


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How did you get that my water use trumps yours?? Where did that come from? Explain to me how you have the right to dry up all of the wells around you? I really want to hear your reasoning. You apparently feel you have the right to do what you want so let’s hear your explanation! How do you justify depleting a natural resource that many people rely on?


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You look over the fence at my water use (which might be newer than yours), you look at your declining water production, you want to regulate me.


I am one of the people that rely on the natural resource, too. You want to deny me the highest and best use of my land (which apparently is a vineyard). My case is that you do not have the right to make that denial.


(FWIW: I only have a hypothetical horse in this race.)


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Racket, at what point in deciding to plant a vineyard did you say to yourself that the declining groundwater table was no big thing. What is your back up plan if you run out of water? You can’t dry land farm a vineyard that has been brought up on irrigation. I spent 14 years in vineyard management with some of the biggest companies in the state. I planted many of the vineyards around Paso in the late 1990s and by 2002 the water table had dropped significantly. Vineyards talk about being sustainable. I got news for you, they are not sustainable if they continue to pump while the basin is in overdraft. If my groundwater usage was sustainable for many years and you decide to plant a vineyard and dry my well up, I would say we have a problem. What is your remedy to me? I am not talking about regulation, I am talking about being a good neighbor!


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My right to my portion of the aquifer existed before I began using it. The fact that I only just now began to use my right in no way diminishes my right.


In fact, from a fairness standpoint, a case could be made that YOU need to stop pumping, as you have been using our shared resource for 10/20/30 years and it’s now my turn.


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Well, my usage as a homeowner has been sustainable and based on the fact that your that the vineyard and wine business relies heavily on public image I suggest you rethink your practices if you plan on being around for the long haul. When the water is gone, game over. I wish you luck!


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Your use is only sustainable because it is being “underwritten” by the fact that I have not been using my portion of our shared resource.


How can you consider your use “sustainable” when you have not factored in the potential for my use?


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So what is your exact portion? What is my exact portion?When recharge matches the draw you have sustainability. When the pumping level starts dropping you have overdraft. The Paso basin doesn’t recharge very fast even on wet years. I guarantee a residential well is drawing no where near what you vineyard well draws and that is what can’t be sustained. It seems to me that the chance of running out of water would be factored into a decision to plant a vineyard. That appears not to be happening. I am eager to see this play out. With no new sources of recharge and vineyard development running wild this is going to get interesting. I can truck in enough water to live on. You have a lot more to lose than I.


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Interesting game of brinksmanship that doesn’t seem to yield any winners, but whatever.


Of course, in the end, you and the homeowners will win, because there are more of you, and as Ben Franklin noted “democracy is two wolves and a lamb voting on what to have for lunch.”


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If you want fare, then have a few homeless move into your house and share what you don’t need but if you want legal then the courts are what our system supports. As far as water rights go, legal is the finality of how it works. Protection from the masses that routinely take, after building a legal case to do so, is a constant threat to agriculture. The cities always need more and eventually will take with compensation, so yes perfecting ones water rights is a must OR the courts may determine that negligence to be the grounds for the taking without compensation.


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Bruce your 15 minutes are over. You need to recollect that you are elected to represent those you serve not dictate to them!


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San Jose is in Santa Clara County, not San Jose County.


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Do these agencies stop pumping now? If not, they should!


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Just what the public has been hungering for–a nice serving of humble pie for Gibson.

How sweet!


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If you want something to function effectively and efficiently…KEEP GOVERNMENT OUT!


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Are the people actually going to win won from the big guys for a change? It’s so obvious what is going on here that the judge even recognized it.


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Cindy Steinbeck should be running for Supervisor. She would be a perfect candidate.


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Run, Cyndy, Run!


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Clear as mud.


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