Thursday, September 28, 2000
No one should be surprised that it''s come to this. For at least five years, the community has known that too much water is being drained from the Carmel River, jeopardizing the river''s sensitive ecological web of flora and fauna. We also know that the Seaside Basin, the Monterey Peninsula''s only other source of potable water, is potentially in trouble. According to a recent staff presentation to the Monterey Peninsula Water Management District Board of Directors, parts of the basin have dipped dangerously below sea level, leaving it susceptible to spoil by dreaded seawater intrusion.
It''s against this arid backdrop that the water district is poised to pass Ordinance 96, which would regulate--some say prohibit--private, single-connection water distribution systems, what most of us call wells. It would also affect desalination plants and imported water, but it''s wells and the right to drill them that are at the heart of the debate.
Wells have always been a sort of insurance policy against regional water problems for the ruggedly self-sufficient. So what if the price of water from the water company skyrockets or Cal-Am has no more water credits to parcel out? If you own a piece of land you can dig a well and provide for you and yours at no cost after installing the thing. And the scent of a governmental hold on the God-given right to do so has some people howling.
Currently, the water district does not interfere with single-connection water systems that serve only one household or business. Ordinance 96 would change that by requiring official approval from the water district approval before anyone on the Peninsula could drill a well. Not only would a property owner wishing to provide her own supply of drinking water have to apply to the district for a permit, but she''d have to be prepared to prove that she held the water rights to the property--potentially an expensive bit of research to fund.
"By putting this ordinance in place, who would even go down that path?" queries Michael Waxer, chair of the water district''s advisory committee, which opposed the ordinance. "You have to spend all that money, and may not even get a permit."
As with just about any issue the district takes on these days, Ordinance 96 can trace its roots back to 1995, when the Peninsula''s perceived "water shortage" essentially resulted from Cal-Am''s failure to establish its full rights to the Carmel River. Order 95-10, leveled against California-American Water Company that year, ruled that Cal-Am is pumping about two-thirds more water out of the Carmel River and its underground aquifer than it has a right to take.
Yet, while most residents are cutting back water use or paying higher water bills because of Order 95-10, other property owners continue to tap into the Carmel Valley aquifer or into the Seaside basin, which also provides water for Cal-Am customers. In fact, 313 private wells (although some of those may be replacements of existing wells) have been drilled on the Peninsula since 1995 in a kind of gold rush for water. In light of the current water crunch''s vise grip on the community, some folks say it''s high time to regulate those wells.
"I believe that all users need to be held to the same standard," says water district chair Molly Erickson. "The district''s job, our mandate from the state, is to protect the public trust resource and manage the water supply. Exempting some users does not accomplish that goal."
But water rights can be a tricky game. In California, rivers and underground water flows such as the Carmel Valley aquifer are considered a "public trust resource," which means they are subject to control and regulation by the state. Supporters argue Ordinance 96 is needed to protect the Carmel River and the aquifer beneath it and necessary to the district''s mission of stewardship.
"The real issue is we have too many straws in the glass with more straws going in daily," says attorney Fran Farina, an activist with the group Save Our Carmel River. "What impact does that have on the river?"
At the same time, the California Constitution guarantees property owners the right to the water directly beneath or adjacent to their land unless those rights have been sold. Critics of the ordinance say it''s too restrictive and stomps on basic private property rights guaranteed by the California Constitution.
"The California Constitution clearly guarantees that, if you want to sink a well on your property, you have the right to do that, unless somewhere along the line you have sold that right," says public affairs consultant Bob McKenzie, who represents the Monterey County Hospitality Association, the Monterey Peninsula Chamber of Commerce and the Monterey Peninsula Citizens for Water Solution.
The water board does have the power to reasonably regulate water distribution systems, and currently it does just that with multi-user systems like Cal-Am; nobody is questioning its authority to do so. But critics contend that the board does not have the right to sit as judge and jury when it comes to water rights, which often constitute complex and convoluted legal questions.
In the past, individuals who hook up to water systems serving only their own property have not been asked to prove their rights; it''s assumed that the individual''s water rights have remained intact. However, that''s not always the case. In the late 1800s and early 1900s, many property owners sold or gave away their water rights or part of their rights to Cal-Am''s predecessor, but it''s unclear which parcels'' water rights were swallowed and which were not--Cal-Am doesn''t even know.
Ordinance 96 would shift the burden of proof of water rights onto property owners. If anyone challenged those rights, property owners would have to research old deeds and present them at a public hearing before the board. The seven boardmembers would determine if the rights were valid or not. "I believe it needs to be determined what the specific rights are on the specific parcels," Erickson says. "I think it''s a reasonable and logical thing to do."
However, critics say the board lacks the authority to determine water rights, which is a fundamental property right in California. "Who are they to judge?" questions McKenzie, who argues that, according to state law, there are only two entities that can determine water rights: the state Water Resources Control Board and the courts. "No one else is authorized to make any determination of water rights. Therefore it is presumptuous and arrogant for this district to presume to judge these matters."
Opponents also say the ordinance goes beyond being reasonably regulatory and becomes prohibitive because the burden of proof is undefined, meaning the board can arbitrarily set the bar as high as it wants.
"I would argue Ordinance 96 is a de facto moratorium," says Waxer. "The hurdles are either too difficult or impossible to meet because they''re not defined...It would be very difficult to reach any point in time where you can say you have absolute, 100 percent unchallengable water rights."
The sheer cost of researching one''s water rights, which can entail extensive research of documents going back 100 years or more and possibly legal counsel, could be prohibitive. District staff estimates the ordinance would cost applicants $1,700 to $4,750 per permit application in permit processing costs to prove water rights, and that''s in addition to the $750 application fee; others put the cost upwards of $10,000. Either way, the cost of the permit process may leave the little guys high and dry--the ordinance would predominantly affect single-family residential users--while "the ones with the bucks will find their way around the restrictions," says water boardmember Ron Chessire.
However, Erickson defends the right of the water district to pass such an ordinance and refutes that it''s intended to outright prohibit wells. "The intention [of Ordinance 96] is to regulate, clearly," she says. "No one has proven any dollar figure as to what [the permit process] would cost. If it''s about [protecting] the public trust resource, appropriate investment and due diligence needs to be made."
Nevertheless, when private property rights collide with the rights of the state, it''s never a pretty sight. Often it takes judge and gavel to decide whose rights take precedence. "How do you work out the problem between this individual right, which is guaranteed by the state Constitution, and the public trust resource rights, which are also guaranteed?" ponders McKenzie. "If they do adopt an ordinance that regulates single-parcel, single-use wells, I have no doubt that''s going to the [state] Supreme Court."
The Monterey Peninsula Water Management District is scheduled to vote on Ordinance 96 on Thursday, Oct. 26 in the Monterey City Council chambers.