OCR Text |
Show However, the court apparently was concerned with the disorganized, happenstance manner in which the basin had been developed and overdrawn, and noted that many of the uses were illegal in that they impaired prior rights. The court compared appropriation and prescription rights in the following language: An appropriative taking of water which is not surplus is wrongful and may ripen into a prescriptive right where the use is actual, open and notorious, hostile and adverse to the original owner, continuous and uninterrupted for the statutory period of five years... To perfect a claim based upon prescription there must, of course, be conduct which constitutes an actual invasion of the former owner's rights so as to entitle him to bring an action... Appropriative and prescriptive rights to ground water, as well as the rights of an overlying owner, are subject to loss by adverse user. This is in accord with the rule announced in cases dealing with water in a surface stream. ( 207 Pac. 2d. 17 et seq.). In a rather complicated maneuver, the court then adopted a theory of " mutual prescription" which effectively destroyed priorities between users, and put everyone on a rather equal basis. While that characterization is an over- simplification, it accounts for the fact that the court's decision marked the way for effective and efficient management of groundwater basins in California. The California Supreme Court reached similar decisions in other cases, and the legislature took cue by enacting various statutes to facilitate groundwater management. In 1951 the legislature provided that use of water to replenish or recharge a groundwater basin was a beneficial ( and therefore legal) use of water ( Cal. Water Code, sec. 1005.2), further provided that existing rights could be satisfied with imported water ( Cal. Water Code, sec. 1005.1), and also conferred authority on the Water Resources Control Board to enjoin harmful pumping which would allow salt water intrusion into basins which were subject to water rights adjudication ( Cal. Water Code, sec. 2020). Thus, it may be said that general management and administration of groundwater basins in California are perhaps further advanced than in any other State in the Union- and water- use fees are undeniably a key feature in the success of the system. But it also must be said that the system was made possible, at least in major part, by the doctrine of mutual prescription as adopted by the state supreme court. No other state supreme court has applied that doctrine so effectively to groundwater basins, and there is no way that legislation could accomplish the same result. This is so because the adjudication of existing rights in groundwater basins is exclusively within the province of the judiciary, and the legislature cannot constitutionally adjudicate or define the limit of existing property rights. In short, the success of the California system cannot be exported to other States unless their supreme courts adjudicate a result similar to that reached in the Pasadena case, supra. It must be emphasized, however, that these observations relate to developed ( or over- developed) groundwater basins, and not to basins which have unappropriated water. In the latter event, imposition of water- use fees would present fewer problems, but, as will be noted below, might not be as simple as with surface watercourses because of the hydrostatic pressure problem. 2. Present " Retail" Water- Use Fees Purely by way of comparison and illustration, it is to be noted that there are no legal impediments to the imposition of water- use fees by those who have acquired appropriation water rights. While water rights cannot be acquired for speculation or monopoly, public and quasi- public entities are allowed to acquire appropriation water rights and then sell the water in various ways to the users. These entities include towns, cities, water improvement districts, water conservancy districts, metropolitan water districts, federal agencies ( notably the Bureau of Reclamation, but also the Corps of Army Engineers), and even private companies operating for profit who have obtained certificates of convenience and necessity from the State ( see, generally, E. W. Clyde and D. W. Jensen, Administrative Allocation of Water, p. 77 et seq. ( National Water Commission, NTIS PB- 205- 249, 1971). The entities mentioned above sometimes enter into long- term water delivery contracts for specific annual charges, sometimes charge monthly or periodic rates for household and culinary use, and sometimes " wholesale" the water to other entities for subsequent retail sales to users ( most typically the case with the Bureau of Reclamation on large projects). While most of these charges are designed to recoup the cost of construction of facilities and operation and maintenance costs, in some instances the fees are designed to produce a profit ( as is the case with private companies operating as public utilities with certificates of convenience and necessity). The only difference between the fees charged by these entities, and potential fees to be charged directly by the State for use of previously unappropriated water, is that the agencies and entities mentioned above have gone through the procedure of acquiring appropriation water rights ( without cost, other than payment of a modest filing fee), and have thus acquired a " right" to the use of the water that they sell. The related question is whether the State, which created the water rights in favor of these agencies, has an initial right to sell the water or impose fees for its use- as distinguished from the present practice of simply creating rights of use in applicants. 3. Analytical Position of Utah Division of Water Resources The Utah Division of Water Resources, as governed by the Board of Water Resources, is authorized to acquire water rights through filings made with the Utah State Engineer ( see section 85 |