INTRODUCTION

The basic principles of water rights in California are quite straightforward if sometimes difficult to apply. Water in California is the property of the people of the State, and if obtained in accordance with established doctrine, everyone has a right to use it. Generally, all uses however obtained must be "reasonable and beneficial." In the case of ground water, each owner of land in an enclosed basin where ground water accumulates has an equal or "correlative" right t to pump water for such use. In this particular circumstance, this is the right of an overlying landowner, and the manner in which the water collects in the subsurface is referred to as "percolating." In the case of percolating ground water, certain specific rules regarding the rights apply. In instances where the ground water can be demonstrated to be sufficiently hydraulically connected to a "known and well defined" subsurface channel, other ground water rights analogous to those of the riparian right apply. Both of these kinds of rights could apply in Malibu, but they are to be distinguished from whatever rights there may be to ground water that collects in non-basinal materials having no connection to any sort of subsurface channel. To such ground water, much of which collects in bedrock, the settled California law of water rights does not appear to apply. So far I am aware, if a dispute concerning rights to ground water in non-basinal materials reaches the courts, it will be a case of first impression.

LOCAL CONFICT OF LAWS

So far as an initial perusal of the major environmental laws of California, notably the Coastal Act and the Environmental Quality Act, they do not specifically or generally obviate in any way the law of California water rights. This immediately raises the threshold question of the extent to which planning requirements such as those contained in the Malibu Local Coastal Plan (LCP) should take precedence over the right of an individual to exercise his, or her, right to ground water by installing a water well. In other words, does environmental law in California trump the California law of water rights?

It is to be noted in this regard that perhaps the earliest state legislation concerning the environmental protection, the prevention of fouling streams by outflows from hydraulic mining, concerned not so much a water right but rather an exercise of that right. As such, it is a far cry from the question of the extent to which the individual who wants to construct a water well should be made to jump through environmental hoops that, applied to such construction, serve no apparent environmental purpose other than to raise local governmental fees.

At the present time, certain specific LCP requirements for obtaining a water-well permit in Malibu are either unnecessary to good environmental planning or are in conflict with the California water rights.

MALIBU PLANNING DIVISION PACKAGE ITEMS IN CONFLICT WITH WATER RIGHTS

City planning people, bless 'em, have developed a "package'' to guide the unwary, the planning-wise uninitiated, the babes in the planning woods, through the planning permit labyrinth. The way it works, you sit down with a planning person who hands you this package which is a series of forms. If, before the planning person starts to explain, you thumb through them, you will immediately realize that you are no longer in Kansas. The heart of the package is a series of 23 questions designed, it seems, to investigate the environmental effect of any proposed project not just in Malibu, but also the known universe. This brings us to the following comments regarding specific package items.

Item 1. Uniform Application - OK as unavoidable

Item 2. Submittal Checklist - As herein modified, OK.

Item 3. Application fee. Of course.

Item 4. Proof of Ownership. No. The appropriation doctrine water of rights does not require ownership, and it is not the business of the City to police against trespass.

Item 5. Letter of Authorization. No. From whom? Why? See Item 4.

Item 6. Declaration Regarding Issued Coastal Development Permits, yada, yada, yada. No. Irrelevant. There is no apparent relationship between the purpose of the Coastal Act and a water well unless the Coastal Commission has come out with a blanket proscription of water wells within the Coastal Zone. So far it has not, but stay tuned.

Item 7. Archeological survey - Even if a proposed well is located in an archeological site, neither the well itself nor the necessary construction procedures requiring the temporary presence of heavy equipment, offers much in the way of site damage. If some archeologist wants to look at the initial 10 feet or so of cuttings, fine, but a survey? Hardly. Even if the cuttings bring up a bunch of tomahawks or something, its difficult to see, absent some further erosion of private property rights, how archeological interests outweigh the individual's right to reasonably and beneficially use ground water to which the individual is legally entitled.

Item 8. Complete Set of Plans - No. Why are plans of any sort required if the well location is fixed by hydrogeologic analysis? Generally, no view issue is involved, and well drillers are licensed. If view is an issue however, the requirement of an underground power line seems reasonable. They are required to seal the surface casing annular space to prevent aquifer degradation which seems to be the only legitimate planning concern except to be sure the permit specifies that the well driller is licensed.

Item 9. Color Coded Slope Analysis yada, yada, yada. Such maps presumably are relevant to the LCP for siting buildings. A water well is not a building, and it can be located wherever there is access for a drilling machine. In rare cases where access might require significant grading, the question of a permit might legitimately be of concern, but it does not seem equitable that a proscription on grading is more important than the right to water, so long as the site is based on hydrogeologic analysis.

Item 10. Detailed Landscape Plan/Hardscape/Fence Plan. OK. Wells do not require such plans.

Item 11. Will Serve Letter. No. Irrelevant. Waterworks District 29 has nothing to say about a water well on a property the District serves, although it might like to.

Item 12. Public Notice yada, yada, yada. No. Irrelevant. The public has no environmental grounds to object to the water rights of anyone. Drawdown is not an issue. As among landowners with overlying rights, neither can object to well interference due to pumping of another's well so long as the use is reasonable and beneficial.

Item 13. Feasible Alternatives Report. Alternative to what? The right to have a water well is invested every individual Californian, and an alternative source such as the availability of imported water does not vitiate that right. Absence some special circumstance, the location of a water well has no particular planning significance.

Item 14. Grading Verification Certificate. No. Irrelevant. Generally, such a certificate is needed for building site grading - not grading that might be required for a water-well site. Environmental law concerning grading necessary for property development has a legitimate planning purpose, but grading necessary for preparing a drilling site should be permitted without reference planning or environmental effects. The right to have a water well does not depend on its environmental effect. In the rare case of a large amount of grading, however, the necessity for a particular site should be based on hydrogeologic conditions.

Item 15. Environmental Health Review. There is no relationship between health and well construction except as required by the State construction standards to be implemented by the well driller. The quality of ground water is very important, especially in terms of biological contamination, but the only restriction in this regard is the well location with respect to a septic system a matter addressed by the City Health Code. Otherwise, the safe construction of a water well is solely within the purview of the driller. Anything else the environmental health specialist could contribute would be simply duplicate the duties of the driller who knows drilling fluids and other possible contaminants must be kept on site. Specified package fees from $148 to $950 range from reasonable to outrageous.

Item 16. Biology Review. Generally none should be required. Two issues of biological concern have been suggested. One is whether trees might be adversely impacted, and the other is whether some other "biological resources" would be so affected. In the rare case where a well must be located so as to interfere with a tree, a brief letter of explanation in geologic or topographic terms might be required. Beyond this, a site where the introduction of a water well would be environmentally adverse, even to the extent of destruction of a true ESHA, brings into conflict water rights and environmental concern. But in any case, it is difficult to see how package-specified fees as high as $1,722 could be justified. The City biologist visits the site and sees that the proposed well site will destroy an ESHA. Upon recovering from the shock, he returns to City Hall and reports. How much would that cost?

Item 17. Completed City of Malibu Water Quality Check List. This check list involves eleven items of which numbers 8 and 11 are relevant. These concern the effects a water well might have on wetlands or a riparian habitat. It is conceivable that a water well sufficiently close to a wetland might affect it adversely by intercepting ground water upon which the wetland depends. Such a condition is unimportant for a well near a shoreline because of sea-water intrusion. In canyons however, the problem might arise either with regard to a wetland or a stream or water body to which riparian rights apply. In either case, this would bring into direct conflict environmental concerns and water rights.

Item 18. Public Works Review. Not apparently relevant. There seems to be no relationship between the manner in which a water well construction would come within the purview of the City building and grading codes over which Public Works has primary jurisdiction.

Item 19. Geology Review. Not apparently relevant. Whether an individual wants to exercise his or her right to install a water well is no business of the City geologist who, as in the case of Public Works, is concerned with building and grading.

Item 20. Geology fee handout. What? See Item 19.

Item 21. Coastal Engineering Review. Not relevant. Anyone dumb enough to install a water well near the shoreline has a right to do it.

Item 22. Public Beach Access. Not relevant. See Item 21.

Item 23. Written Evidence of Review yada, yada, yada. Not relevant.

Item 24. Written Statements Justifying EACH Additional Request. What?

CONCLUSIONS

Research is necessary to determine whether in California there is major case authority for a defense based on some water right that has prevailed over a complaint based on some violation of environmental law and vice versa. On this point, a review of the more recent litigation between the City of Los Angeles and the Owens Valley interests might be instructive. However, the local issue at hand is whether an applicant for a water well permit can be compelled to meet standards established in Malibu in the interests of City planning based on its LCP, the authority for which is postulated on environmental legislation, particularly, the Environmental Quality Act and the Coastal Act. Underlying this is the fact that as matters now stand in Malibu, the planning procedures require thousands of dollars in reviews and consultant reports that are meaningless because a water well does not present any adverse environmental impact or nor any harm to the Coastal Zone such as current planning requirements are designed to avoid.

It is possible to conceive of circumstances where current planning principles could be applicable - say where a power pole to a well interferes with a view, or where the applicant insists of mounting a noisy 100-horse turbine pump motor outside a neighbor's bedroom window. But generally, a water well by its very nature does not present a planning problem, and to make it the object of a costly planning application makes no sense. On the other hand, as now conceived in Malibu, it makes a lot of cents, but not for the applicant.

RECOMMENDATIONS

Generally, water wells are to be encouraged, because otherwise the ground-water resource is wasted. An alternative and more rational approach to that represented by the Division's current "package" would be to require notice only to adjoining neighbors to allow for any specified, technically described complaints to the City. After expiration of a reasonable notice period, a City specialist with a working knowledge of water wells should be dispatched to examine the site. A report of that specialist's examination should address, in writing, any complaints or the need for necessary investigation to determine impacts perceived to be adverse to City planning policies. The written description of such adverse impacts should be substantiated with facts, not just offered as the unsupported opinion of the specialist. If the report proves meritorious, the applicant should be charged a fair fee, correction should be required, and then a permit issued. If challenged by either the applicant or a neighbor, the matter should be referred to the Planning Commission.

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