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Extraction Rights Don't Equal Storage Rights, Court Determines

The right to pump groundwater does not equate to the right to store water in the same groundwater basin, the Second District Court of Appeal has ruled. In perhaps the first published ruling of its kind, the court held that unused groundwater storage space is a public resource that must be managed for the public benefit. The court ruled against seven cities, four water companies and an irrigation district, which collectively control the right to half of the water pumped annually from the Central Basin in metropolitan Los Angeles. Those entities sought to apportion storage rights in the same proportions as pumping rights. The court rejected the plan and instead ruled that the Water Replenishment District of Southern California was authorized to manage groundwater storage. The decision could be a victory for public agencies and developers that need to prove that water is available for growth because a managed structure for groundwater storage adds more certainty to local and regional water analyses, according to attorney Edward Casey, the Weston Benshoof attorney who represented the water replenishment district. Under litigation initiated in 1962, the Los Angeles County Superior Court has apportioned water rights within the Central Basin, and the court has retained its jurisdiction. A total of 148 public and private entities now have adjudicated water rights in the basin. In 2001, 12 entities asked to amend the most recent court judgment to quantify and allocate the rights of water holders to use underground storage space. They proposed that the court divide up the usable storage space to the 148 entities based on annual pumping allocations. The dozen entities that filed the motion sought to amendment the judgment so that they could pursue conjunctive use projects, which rely on in lieu and artificial recharge of the groundwater basin. Superior Court Judge Reginald Dunn rejected the request. He found that the judgment at issue was limited to the right to pump water and that storage was a different matter. Judge Dunn also determined that the water replenishment district had statutory authority to replenish and store water for conjunctive use. The 12 water pumpers appealed, and a unanimous three-judge panel of the Second District, Division Eight, upheld the lower court. Before addressing the pumpers' arguments, the court first held that underground water storage space is a public resource under Article X of the state constitution. That article requires that water resources be used in the public interest, and Water Code §100 and § 105 reflect this policy. "Most significantly, under § 105, underground water resources must be developed ‘for the greatest public benefit,'" the court ruled. The court then considered the pumpers' argument that the doctrine of "mutual prescription" created their right to unused groundwater storage space at the same ratio that they may remove water from the basin. The court ruled that the pumpers' right is to use of the water — not to storage space. "The doctrine of mutual prescription applies only if the use of the claimed right was actual, open, notorious, hostile and adverse to the original owner and continuous for the statutory period," Presiding Justice Candace Cooper wrote for the court. "Appellants bear the burden of establishing such element, and have failed to demonstrate any one. The motion concerned unused property that by definition was not continuously used in an open, notorious and hostile manner." The pumpers also argued that correlating storage rights to pumping rights was correct because storage and extraction are "hydrologically linked." But the court said there was no legal basis for this argument. "If appellants' theory were correct, adjacent property owners would have more control over their neighbors than nuisance law affords them, easement owners would have more control over the dominant tenement than property law affords them, and end water users would have more control over water extraction than water law affords them," Cooper wrote. "Extraction and storage are different physical processes; establishing a hydrologic link between them is not sufficient to show that a legal interest in one creates an interest in the other." Furthermore, the court held, the proportional allocation of storage rights does not guarantee beneficial use of the water or public accountability. The water replenishment district "is expressly authorized to store water for the purpose of replenishing the district," Cooper wrote, citing Water Code § 60221, subdivision (e). "Storing water for replenishment purposes is similar to storing water for conjunctive use." The court found no support for the pumpers' argument that the district's authority was limited to replenishing an annual overdraft. The Case: Central and West Basin Replenishment District v. Southern California Water Company, No. B155143, 03 C.D.O.S. 5079, 2003 DJDAR 6434. Filed June 12, 2003. Modified July 9, 2003 at 2003 DJDAR 7591. The Lawyers: For Water Replenishment District of Southern California: Edward Casey and Paeter Garcia, Weston, Benshoof, Rochefort, Rubalcava & MacCuish, (213) 576-1000. For the water pumpers: Robert Saperstein and Russell McGlothlin, Hatch & Parent, (805) 963-7000.
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