Water rights for property owners

This is the second in a series of articles exploring a water rights case (Fallbrook Utilities v. United States) involving the Santa Margarita Watershed now before the 9th U.S. District Court. The case is affecting development in the Anza Aguanga valleys. 

The 9th District Federal Court in San Diego for almost the last decade has been trying to decide who has the rights to water in the Santa Margarita Watershed, including the thousands of residents living in the Anza Valley and those living in two area Indian Reservations. The next conference on the case is scheduled for Aug. 17.

The Ramona and Cahuilla Tribes claim they should have substantial water rights because of their treaties with the United States Government. The surrounding unincorporated county residents and businessmen in the watershed want a fair share as well and need to know what they have so they can pursue needed development and more jobs in the valley.

Just what are the American citizens’ water rights under federal law? Federal and State Courts have long been competing with each other on these rights.

It is the basic right of every individual to have equal access to water in this nation, as it is essential for life. Who controls that water is the key legal issue.

The summary of those rights and some definitions as published on the Internet by the “National Paralegal College/National Juris University” shed a little light on this question. They are as follows:

Watercourse: An external source of water, such as a river, stream or lake.

Riparian: On the banks of a body of water

Riparian Doctrine: The rule, followed by many states, that provides that all properties on the bank of a water source have equal rights to use and enjoyment of the water.

Prior Appropriation Doctrine: A rule that considers all water sources to be initially owned by the state that can be appropriated to the use of a person through usage or permission from the state.

Ground Water: Water that is present within or underneath the ground.

Surface Water: Water that collects on the surface of the ground.

The three issues regarding these rights and duties of land owners are spelled out by the University.

They are:

1.) The right of landowners to waters that are in watercourses that border on the landowners property

2.) The rights of landowners regarding ground or well water.

3.) The right of landowners to use surface water, such as standing rainwater and melting snow or to divert such water that would otherwise prove harmful to their property.

In the Anza and Aguanga Valleys there is only one free-flowing river and it is the Santa Margarita River. The river itself during the hot summer months almost dries up on the surface but still flows below the ground. It is fed by the snow and rain runoff from the Thomas and Cahuilla Mountains. Most of the two mountains are owned by the United States Forest Service and Bureau of Land Management. Other lands below the mountains have also been set aside by the U.S. Government by the Endangered Species Act of 1973. Development of these lands and its water is under the control of the U.S. Government. The southernmost portion of the Santa Margarita Rivers is owned by the United States Marine Corps base at Camp Pendleton.

The groundwater rights to the lower portion of the Santa Margarita River and watershed were mitigated through the judge’s interlocutory decrees, designating who can use its waters and how much they can use. This is not the case with the upper portion of the lake above the Rancho California Water District’s Vail Lake and part of the attorney’s conference scheduled for next week. Vail Lake has been filled over the years by the excess water runoffs from the River and permitted wells below it.

When it comes to the Riparian Appropriation Doctrine, it is much different from east to west. There are far more water sources in the east than there are in the west. Our founding fathers didn’t consider major drought conditions we see in the western United States nor the problems it would bring.

The Riparian Appropriation Doctrine is most in question in the west. The local waters, under the Riparian Appropriation Doctrine are controlled by the state and not federal government, yet much of the property along the Santa Margarita Watershed is owned by the U.S. Government. The Indian Reservation Lands and its water rights are separated and under the control of the Bureau of Indian Affairs. Therein lies some of the areas’ legal water rights problem.

“Just as with watercourse water, there is split among jurisdiction, mostly based on geographical lines, as to how to deal with the ownership of, and rights to, ground water. The majority rule is to allow each property owner ‘reasonable use’ of the ground water beneath his or her property. Essentially, this means that the owner can use the property to whatever extent in reasonably necessary for the use and enjoyment of that property. The Indian representatives say the Santa Margarita Watershed is the only water they have and should have the right to control all of it to insure each continuing life on their reservations.

The Anza and Aguanga residents claim they too have rights to the water under their own property below any groundwater. The wells most Anza residents have in the Watershed are well below groundwater level of 100 feet. Water they have a right too despite government efforts to take it away.

The Aug. 17 conference may weigh heavily on how much water, and what water the residents are entitled too, if no other issue arises from other sources claiming they too have rights to the water.

More information about this critical issue will be discussed in the next issue of the Anza Outlook.

One Response to "Water rights for property owners"

  1. Robert Kinkade   August 14, 2017 at 9:53 pm

    THE Cahuilla Indian reservation was established in 1875 by a presidential executive order not a treaty approved by U.S. Congress, their reservation could be enlarge or reduced in size by a presidential executive order to this day. This has happen to this reservation in the past, it was made smaller due to the number of indicants living on it was so small. Thus, there is no treaty approved by congress that established this reservation, any such notion is nonsense.

    Further, the Anza Valley was settled under the land of 1862, other parts were established by the federal government for the early railroads by act of congress (Laws not executive orders) which extinguished Indian claims to the land. Further the chullia Indians reservation was not recognized until 1874 much after these laws went into effect.

    passage from the 1862 homestead act
    “That nothing contained in this act shall be so construed as to impair or interfere in any manner whatever with existing preemption rights : And provided, further, That all persons who may have filed their applications for a preemption right prior to the passage of this act. (none were, since they were not recognized by the federal government until 1875, 13 years later)

    Why haven’t the federal court taken this into account? Here the land was purchased from the federal government with all property rights in place, now the federal government wants to take these property rights back and give them to someone else?

    Reply

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