Articles - AN ESSAY ON CALIFORNIA WATER RIGHTS

INTRODUCTION

California water law is a complex subject, first because it is a combination of two basic and somewhat inconsistent doctrines, and second because it is a mixture of legislation and court interpretation. Furthermore, certain far-reaching decisions regarding ground water were made before important models of ground-water occurrence had been developed. Two roots of the California water law, the Pueblo Right and the right of appropriation, preceded statehood, and were incorporated as part of constitutional law upon California's admission to the Union. Certain elements of the English common law also were adopted to give California now what is a plural system of water rights. This system includes the riparian right and the right of appropriation, supplemented by those of prescription and adjudication. The Pueblo right which applies only to the cities of Los Angeles and San Diego, and the somewhat curious right to spring waters, are of no significance for the purpose of this essay.

Riparian rights to surface waters in Malibu at the time of Frederick Rindge's purchase included those along the lower reaches of all the streams draining the southern mountain slopes within Rancho Malibu, and particularly those of the five largest canyons from Flores Canyon on the east to the canyon of the Arroyo Seco on the west. However, only the surface flow of Malibu Creek impounded by the Rindge dam, and to a much lesser extent that impounded by a small dam roughly 2-½ miles up from the shoreline in Zuma Canyon, were considered worth developing by the Rindge interests. It is uncertain how long each of these sources supplied water, but neither has been in use for at least 50 years and probably longer.

Malibu's initial reliance was on ground water for residential development beginning with the formation of Rhoda May Rindge's Marblehead Land Company and subsequent land sales. That reliance was eliminated with the introduction of importation by County Waterworks District 29 about 1965 upon which there has since been almost total dependence for water in Malibu. More and more today however, drought, rising importation costs, and a historic lack of concern for water conservation beyond that of the shorter-shower/dripping-faucet approach, suggests that in Malibu ground water should be reconsidered a significant resource. In anticipation, an introduction to the subject of water rights in Malibu, seems highly desirable. The purpose of this article is to outline how certain principles of California water law appear to relate to the waters of Malibu based on the excellent work of Hutchins (1956), the "bible" of California water rights. It therefore does not necessarily represent the present state of affairs regarding decisions or statutory modifications since publication of that work. Rather, it only refers to how those principles, as treated by Hutchins, appear to relate to Malibu today. It is intended only as a point of departure for the research needed to cover the water law of today before the issue of water conservation in Malibu can be addressed.

WATER RIGHTS DOCTRINES AND RELATED CONCEPTS

The doctrines of riparian and appropriative rights extend far back in history. The idea of a riparian right may have originated with ancient Egypt's dependence on the Nile, and the idea of appropriation was at least as early as the Roman aqueducts. Shorn of the power of kings that persisted through the Middle Ages, the concept of water as private property probably began as part of the English common law. It therefore was part of the law in post-colonial America. However, it remained for the leap in continental development to California to bring the water laws there into the modern era. It was there, with the necessity of water for the Sierra placer mines during the 1849 gold rush, closely followed by that for agricultural development in the Great Valley, that the riparian and appropriative rights became incorporated in the matrix of the California water law of today.

The wisdom of past experience led to California's constitutional declaration that waters of the state belong to the people, i.e., the body politic. Unless reduced to personalty by artificial containment, water in California cannot be owned by individuals. Rather than possessing water flowing in surface streams, Californians are considered to have only usufructuary rights to the water, with the proviso that the use must be reasonable and beneficial. In the natural course of events, legal principles initially concerning the riparian and appropriative rights to surface waters eventually were applied by analogy to ground waters. The laborious dug and driven techniques were employed for water well construction through the latter half of the nineteenth century. The first reasonably efficient rotary method, now mostly used in water-well drilling, was not introduced until 1901 and then only for oil wells. Furthermore, aquifer testing, which provides the most reliable ground-water data upon which to base legal decisions, did not become available until the development of the Theis (1935) nonequilibrium equation which models the unsteady flow state characteristic of aquifers yield. Aside from early doctrinal interpretations, the more meaningful legal decisions regarding ground water in California have been based on data developed from the Theis equation and its subsequent modifications.

RIPARIAN RIGHTS DOCTRINE

Riparian water is that flowing in natural streams or contained in natural water bodies such as lakes. The right is that of the owner of land to which the stream is contiguous for use on that land, or to subdivisions of that land if so intended. But it is limited to the water that reaches the land. The riparian right does not permit water to be diverted for use on non-riparian land. Furthermore, due to variations in natural streamflow, the riparian right is limited proportionally among the various riparian proprietors of a particular stream. In the case of flow cessation, the right is not lost but merely suspended until flow again occurs.

The riparian right can be reserved from a conveyance of part of the riparian land, such right remaining in the unconveyed part of the riparian land. Further, the total riparian right may be vested in another while retaining the fee vested in the grantor. But a conveyance of a part of riparian land in such a way as to sever it from the stream does not carry with it the riparian right unless specifically reserved in the deed. The riparian right can be lost by appropriation and prescription, but not by non-use or abandonment.

The riparian right is tied to land within the watershed to which the stream is tributary. Where land riparian to a stream in watershed A that extends to a part of watershed B, only the part of the land in A has the riparian right. As between riparian owners, there is no priority in terms of the time of use. The use must be reasonable and beneficial, and it is apportioned on a percentage basis among all riparian proprietors as a matter of equity. There can be no riparian right to a specified quantity of flow because of the natural variation in flow. The point of diversion may be above the riparian owner's land if such diversion does not reduce the flow so as to adversely affect the proportional shares of downstream riparian owners, but a riparian owner can contract his riparian right for use on non-riparian lands so long as not adverse to the rights of downstream riparian owners.

These and many other nuances concerning the riparian right constitute a highly detailed, if not especially complicated body of law. They are presented here merely to show the scope of the matter rather than for any particular application to Malibu.

APPROPRIATIVE RIGHTS DOCTRINE

The appropriative right was introduced in California during the 1849 gold rush by miners taking waters from streams in the public lands of the Sierra Nevada Mountains. As such, it could be argued, the taking could be adverse to the riparian rights of a downstream landowner but not to the public at large. The more important principles concerning appropriation are those of: [i] priority, i.e., "first in time, first in right;" [ii] the appurtenant character of the right, i.e., the appropriation as a part of the property of the land of the facility it serves; [iii] alienability; and [iv] export to "distant lands," i.e., lands beyond the watershed. In the case of surface flow, such a diversion is permitted so long as not adverse to "prior or superior" diversionary or riparian rights. In the case of ground water, such export is permitted so long as it is deemed "surplusage," i.e., water not developed by overlying landowners. However, as in all situations, the basic principle without which there can be appropriative right is that the use must be reasonable and beneficial.

CALIFORNIA CORRELATIVE RIGHTS DOCTRINE

The doctrine of correlative rights in California was developed to meet disputes relating to the demands for ground water collected in enclosed basins. Essentially, the idea of correlative rights is based on the principle of equity and the fact that much of such water is needed for agricultural use. As a consequence, the disparity in acreage of different owners of land overlying the same aquifer is without significance since by law the proportionate usage by all owners must be both reasonable and beneficial. From this, the fact that, generally, one landowner can pump water that may come from under a neighboring owner's land is acceptable. This is because all owners have an equal, correlated right to the water, and when so lawfully used provides the most economic use of the basin lands which is equated with the public good. It is to be noted that the correlated right is to use the water in the basin rather than to transport it beyond the watershed tributary to the basin.

DERIVITIVE WATER RIGHTS

The riparian, appropriative, and correlative rights doctrines are sui generis, born of the necessity for the need to acquire and use water in certain specific ways. However, rights to water also can be derived under certain other specific conditions. One is by way of prescription and another by way of adjudication. A prescriptive right can be obtained in much the same manner as that, for example, of a easement born of a trespass over the land of another to reach one's landlocked parcel. Under certain conditions, such an "open and notorious" trespass for the statutory prescriptive period can ripen into a prescriptive easement of access. Similarly, a claimed prescriptive water right to, say, an appropriation of ground water for distant use, lawfully permissible only if the water is surplusage, may be upheld against an overlying landowner's right if such appropriation is more than surplusage so long the prescriptive requirements are met.

Adjudicated rights result from the determination in either a civil suit or by governmental action to meet the problem of demand by users which is greater than the supply. With regard to riparian rights, a court-determined percentage is allocated to the various riparians based on records of their reasonable and beneficial uses. In the case of basin "percolating" waters (see below), a similar allocation is based on the total volume of which is keyed to the basin's safe yield.

RIGHTS TO WATER IN MALIBU

The California law of water rights applies to both riparian waters and ground waters in Malibu. However, there is no known exercise of riparian rights there at this time. Nevertheless, they do exist and could be invoked at any time. Locally in Malibu, ground water rights are exercised but currently they are of little significance. Generally, because of the almost exclusive reliance on imported water, the manner in which such rights have been exercised in Malibu is now only of historical interest. However, with periodic droughts, increasing population, and rising costs, water rights may become a matter of importance, especially in terms of conservation.

RIPARIAN RIGHTS TO WATER IN MALIBU

Almost all streams in Malibu are either ephemeral or intermittent. However, with the essentially constant effluence from the Tapia plant, Malibu Creek is certainly now a perennial stream. But regardless of the flow periods, the developed riparian right can be exercised so long as flows, when they do occur, are used. In other words, failure to exercise the riparian right is not an abandonment which extinguishes that right. Waters from both the Rindge dam and the dam in Zuma Canyon were appropriated, because neither was within the boundaries of Rancho Malibu. The long period of non-use amounts to an abandonment, and therefore those appropriative rights which at one time accrued to the Marblehead Land Company were extinguished long ago. It is of special interest to recognize that the law distinguishes the abandonment of an appropriative right and the abandonment of facilities for diverting or conveying the water. In the Sierra the question involved the significance of abandoned facilities such as flumes.
In Malibu, the reverse comes to mind. The Rindge dam was a diversion facility. Does the Malibu Water Company's abandonment of its appropriative right carry with it the abandonment of the dam? Or did the period of appropriation result in a prescriptive easement for the presence of the dam itself - say as a candidate for historical monument status or as a valuable facility for possible future diversion?

In any event, to the extent the work of Hutchins remains authoritative, there is ample opportunity for exercising riparian rights along streams in Malibu - either those that pass by or through private lands or those in any public lands such as that of the Santa Monica Mountains Conservancy. However, their high energy and generally ephemeral character, together with costs of surface storage and the lack of nearby spreading grounds, probably makes developing such rights impractical. All flows in Malibu streams currently are almost entirely surplusage since they are lost to the ocean. In private lands such as those in the lower reaches of Malibu's streams, and particularly Malibu Creek, riparians could appropriate water for export or use on those lands, and in public lands, anyone has the right to appropriate water either for use in riparian lands or for export beyond the limits of the related tributary areas.

On the other hand, recent recognition of the value of instream flow would work to prevent any volumetrically significant appropriation of Malibu Creek flow for "outstream" use such as irrigation. Although not referred to as such, Public Resources Code Sections 10000 - 10005 in effect creates a new kind of water right in California - a right to maintain a certain rate of flow in a stream as opposed to the riparian right to remove water from a stream. This has come about because of a perceived environmental value for such flows. In Malibu, steelhead trout spawning and a widely asserted ecologically valuable biodiversity an area at the mouth of the Malibu Creek commonly referred to as "Malibu Lagoon." However, also to be considered in this regard is the currently proposed surface-runoff treatment plant for the Civic Center which, presumably could be converted to handle local septic-system effluent. The effect of this certainly would be to increase instream flow beyond that which has been historically operative, because such effluent would be imported water.

Although the law of riparian rights in California applies mainly to surface waters, it also applies to ground water flowing in a subterranean "known and definite channel," and also to ground water occurring as the "underflow" in the alluvium of surface streams. Such flows of ground water are subject to the laws of surface waters and are regulated by the State Water Board in the same manner as with surface riparian rights. To the uninitiated, this may be confusing because of the natural inclination to distinguish surface water from ground water. By way of clarification, it may be found useful to refer to ground waters feeding streams or stream alluviums simply as "riparian ground water."

BASINAL PERCOLATING GROUND-WATER RIGHTS IN MALIBU

It was for the lack of any doctrinal basis that the California courts came to recognize, in addition to riparian ground waters, that of "percolating" ground water, enshrined in the legal literature as "... vagrant, wandering drops moving by gravity in any and every direction along the line of least resistance..." from the 1909 case of Los Angeles v. Hunter (156 Calif. 603, 608, 105 Pac. 755), drawing from the 1899 case of Los Angeles v. Pomeroy (124 CA 507; 617,636-637, 57 Pac. 585). The use of percolating ground water in California is largely regulated by the courts in addressing disputes. Although somewhat wanting from agronomic, botanical, and hydraulic points of view, this definition has served since to distinguish all non-riparian ground water - a doctrinal basis for which still is developing.

So far as the record thus far reviewed indicates, California water law relating to percolating water applies only to that which collects in the fill of enclosed basins. There is authority that if the basin has an outlet through a known and well defined channel, the ground water which certainly collected as percolating waters throughout the basin is nevertheless regarded as riparian ground water (op cit., pp. 607-608). As to ground water in contained basins, it has been established in the landmark case of Katz v. Walkinshaw (141 Calif. 116, 136-137; 70 Pac. 663, 1902; 74 Pac. 766, 1903) that the rights to percolating ground water apply to percolating waters of two kinds - that of the overlying landowner and that of an appropriator, and further that the principle of correlative rights applies to both.

Overlying Landowner Right to Basinal Percolating Water

The phrase, "overlying landowner right," is applied to ground water beneath land in an enclosed basin. The character of that right is explained above with regard to the California correlative rights doctrine. In Malibu, it may be deemed applicable to the alluviums of the various streams, and in particular those in the lower reaches of Zuma Creek and Malibu Creek. If so, it would be because a court has found: [i] that there is no well defined, known channel through which there is an outlet to the ocean and hence that an enclosed basin is involved; or [ii] that despite alluvium underlying the existing surface channel, its structural character is such that local ground-water flow in adjacent areas is not related to the surface channel alluvium in the sense that it directly recharges it. Three aspects of this matter argue that such an issue would not arise. One is the questionable quality of the water because of local septic system recharge. Another is the limited use that might be made of the ground water in what are developed areas which because of their residential or commercial character are suitable for only for boutique irrigation uses. Still another is the cost to prove the existence of a known and well defined channel of which a court could take cognizance. However if Pomeroy (op. cit.), which, astonishingly, determined all ground water in the San Fernando Valley riparian to the Los Angeles River, has not be overturned or otherwise distinguished, there seems little doubt that ground waters in the alluviums of Malibu's streams would be deemed similarly riparian. Alternatively, the various parcels in these floodplains would have overlying landowner rights subject to whatever appropriative rights might exist, and also subject to the correlative rights doctrine.

Appropriative Right to Basinal Percolating Water

All ground waters in Malibu are subject to appropriation. So far as is known, there presently are no appropriative rights to ground water perfected in Malibu. This appears to be due simply to the fact that with demise of the Rindge interests there has been no need for stock watering or large-scale irrigation projects. Rather, water usage in Malibu since Waterworks District 29 importation began has been almost entirely domestic or commercial.

NON-BASINAL PERCOLATING GROUND-WATER RIGHTS IN MALIBU

What is especially interesting from the point of view of the hydrogeologist, or at least this hydrogeologist, is that California water law takes cognizance of only percolating waters that collect in enclosed ground-water basins. Nevertheless, much ground water does not occur in basins but rather in bedrock sections. Perhaps the most well known is the St. Peter Sandstone which contains various aquifers over a number of mid-western states. California has no such well defined bedrock formations unless one regards certain poorly consolidated Pleistocene formations as bedrock. Rather, some bedrock formations such as the basalts of northern California, yield copious amounts of ground water whereas others, particularly the finer-grained Tertiary sections, yield relatively little. In the Santa Monica Mountains, the Conejo Volcanics Formation is the best source of ground water, but little of it crops out in Malibu.

There is in Malibu locally recoverable ground water in faulted sections. Such sections are considered to have "secondary" permeability, because the water moves through fractures rather than the interstices of granular aquifers. Water wells in such materials commonly are referred to as "bedrock wells." The highest yielding water well in the Santa Monica mountains of which I am aware is a bedrock well that is capable of production in excess of 500 gallons per minute (gpm) from a fault zone between Tertiary sections of sandstone and basalt of the Conejo Volcanics about a half-mile north of the shoreline in Little Sycamore Canyon. Equally highly fractured sections probably are quite common along other faults in Malibu and particularly the Malibu Coast fault. On the other hand, probably none involves the Conejo Volcanics. Generally, wells in many sedimentary sections in the Santa Monica Mountains probably produce no more than 1 to 2 gpm and some almost none.

Such ground water cannot generally be regarded as percolating in the legal sense, because in its descent, although moving as "... vagrant and wandering drops..." under the influence of gravity, it does generally not do so in "... any and all directions ..." but rather in certain preferred directions dictated by geologic structure. Courts would find application of the appropriative and correlative rights doctrines impossible, because unless there are numerous wells penetrating the same aquifer section, no flow continuity could be determined. Furthermore, because aquifer boundaries would be practically impossible to determine, recharge and safe yield could not be calculated. In short, the doctrines upon which the California law of water rights is founded simply cannot be applied to bedrock aquifers except under extremely rare conditions. Furthermore, although a doctrinal basis could be developed, that is unlikely because ground-water disputes, the warp and woof of legislation and legal wrangling, have not occurred concerning bedrock aquifers and are unlikely to do so, at least in Malibu.

The single principle of California water law that appears practical to apply to non-basinal percolating ground water is that of the overlying landowner right. Similarly, the single applicable principle of water well regulation is that concerning proper construction and abandonment procedures. Also, as between owners drawing from the same bedrock aquifer, which in some cases could be demonstrated through well interference and tracers, application of the underlying criterion of reasonable beneficial use certainly seems appropriate if for no other reason than as a proscription against waste.

OWNED WATER IN MALIBU

Water temporarily stored in Waterworks District 29 tanks is owned by the District because California water law allows ownership of water contained in artificial structures. As a practical matter, such ownership has no particular significance, because its withdrawal from the natural hydrologic cycle is temporary and merely to implement usage. There is, however, the interesting question regarding the status of ground water stored in the stream alluvium that has collected behind the Rindge dam. Rindge dam ground-water storage reasonably can be regarded as artificially stored water and hence personalty. Presumably it is the property of the dam owner, but that ownership is in question. Title to the dam, its original reservoir, and by extension the alluvium deposited behind it must once have been in the Rindge estate. Most likely, it was in the Malibu Water Company formed to supply water to properties sold by the Marblehead Land Company. Further, title probably was obtained through appropriation. If so, such a right almost certainly has been lost by abandonment. Nevertheless, it appears that the ground water stored in the impounded stream alluvium behind the dam remains personalty of either the owner of the land upon which the alluvium is situated or perhaps the owner of the dam which is part of the artificial storage facility. In this regard the following quotation from the above-cited link is of interest:

The ground water impounded by the Rindge dam is of especially questionable quality because its source is partly effluent from the Tapia treatment plant. Nevertheless, if the recent Corps of Engineers estimate of 780,000 cubic yards of alluvium trapped behind the dam is correct, the ground-water storage there should be in the range of 97 to 145 ac-ft assuming porosity in the range of 0.2 to 0.3. This implies a value in the range of $194,000 to $290,000, cash on the barrel head, but much more, if used, because of recharge by Tapia continually, and by storm runoff periodically. The great advantage of recovering storage from the Rindge dam alluvium is that it can be accomplished simply by tapping through the dam near its base. Clever, wot? In effect, the Rindge dam alluvium acts as a gigantic storage tank. If that storage were to be developed as a water source, it would constantly receive cost-free in-flow. Absent heavy metals and other deleterious substances that it is claimed Tapia does not transmit to Malibu Creek in significant concentrations, the storage would need only chlorination for potable use, and even at its present level of quality it should be suitable for irrigation.

CONCLUSIONS

The California law of water rights has long been a matter of minor consideration in Malibu because the luxury of imported water has rendered such rights of little moment. However, those rights do exist, and with the growing cost of imported water, increased demand, and periodic droughts, the local control of water, particularly ground water, needs consideration. It has been shown elsewhere that there are two modes of ground water occurrence in Malibu of significance. One is that in the alluviums of lower stream reaches, especially Zuma Canyon. Whether the courts would consider such areas water courses and hence subject to the riparian rights doctrine, or closed basins and hence subject to the correlative rights doctrine, in this case is the threshold issue. In either however, appropriation almost certainly would apply.

The other mode of ground water occurrence is the artificial storage in the alluvium retained by the Rindge dam. This presents the peculiar state of affairs in which ground water, presumably owned by whomever has title to the dam, is not being used. This flys in the face of the underlying principle of all California water law - that any right to water depends on its reasonable and beneficial use. Temporary storage in tanks and reservoirs is one thing; but the witholding, intentional or otherwise, of ground water from any use whatsoever is quite another.

Less important, but certainly worthy of consideration, is ground water in non-basinal areas that include most of Malibu. Current California water law does not seem to apply to this resource except to the manner in which wells are constructed or abandoned to prevent contamination. Development of this resource has only begun. Although permissible, it currently is hindered by the inclusion of water well construction in Malibu's Local Coastal Plan. The effect of this is to increase development costs unnecessarily and possibly illegally.

The relevance of current water law, beginning with the general basic principles outlined here, extended by research through current relative statutes and case law decisions, is a necessary first step in considering the feasibility of water conservation in Malibu.

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