Water law in the state of California can best be described as one of those incredibly complex multiple level chess games, with varying and not necessarily consistent rules for each level. In the crazy California water game different norms control, depending on whether ground water, riparian rights, appropriative rights, or prescriptive rights are involved (and this is short form-there are many other variations), and even whether rights were acquired before or after 1914. Add in all the various water projects, which divert water far away from its mountain origins, and its one-time inevitable flow towards the sea, to provide water for agricultural interests and urban needs, and you get an even more layered, confusing system, with consequent over appropriation of surface waters, and overdraw of groundwater.
There are many who feel the current system of water allocation in California is unfair, inefficient, and sadly broken. This year’s collapse of the salmon fisheries, and the precarious situation of the Delta underscore the need to reassess how California’s water is used, abused, and wasted. The debate promises to be heated, with, on one side, those who are convinced dams, and canals are a magic bandaid, and on the other side, those who favor protection of the environment, and who emphasize conservation and wise use of water over building yet another dam, and who think it’s absolutely profligate to ship water to places like Westlands Water District to grow thirsty crops and forage, when that water is taken at the expense of protection of instream uses, such as keeping endangered fish out of the maws of the vast water project pumps.
There is a basic core of rationality in California’s water system, though. The Public Trust Doctrine requires a balancing of consumptive and instream uses. This doctrine was successfully applied to water appropriation through the vigilance of those who fought for more than 20 years to prevent the siphoning away of Mono Lake to slake Los Angeles’s thirst. Further, the California Constitution prohibits waste and unreasonable use of water. The terms “waste” and “unreasonable use” are a virtual full employment act for attorneys specializing in water law, but I’ll spare you a treatise on “legally correct” usage. What I’d like to talk about is a real-life, shameful waste of water in the Sierra Nevada, up near Donner Summit.
Royal Gorge LLC, the bay area consortium of developers who purchased Royal Gorge Cross Country Ski Resort, and surrounding lands in 2005, had been in the news lately because they had actively opposed an ordinance, and a resolution, now passed by the Sierra Lakes County Water District (SLCWD) to prioritize service, and to set a “basement” level for Serene Lakes’ drawdown that they will endeavor not to go below. Last year’s bathymetry study demonstrated that if too much water is drawn from the two conjoined Serene Lakes, the lakes will become disconnected, with large portions of lake bed exposed, harming water quality, and environmental, recreational and aesthetic values, as well as making it impossible for SLCWD to bypass summer water, as required by their state water rights permit.
Royal Gorge LLC, represented by not one, but two law firms, and a water consultant, had flooded SLCWD with arguments, both written and oral, as to why, among other things, SLCWD shouldn’t consider environmental and aesthetic concerns when passing ordinances and resolutions. Homeowners, by and large, came away from water board meetings with the feeling that there was no depth too low for Royal Gorge LLC when it came to procuring water to enable them to build up to 1000 units on what is yet still a world class cross country ski resort.
Did I say no depth was too low?
Royal Gorge LLC (aka Rainbow (Lodge) Holding Co. LLC), as part of their purchase of the cross country ski resort, also purchased Rainbow Lodge, a charming old roadhouse built in the mid-twenties on the banks of the South Yuba River, in the Big Bend Area. The acquisition of the vintage lodge (now unfortunately closed for the entire summer) also included some state rights to use water from a spring that, if not diverted, would flow to the South Yuba River. This spring also supplies water to a group of cabins, through their Rainbow Mutual Water Company. Over the years there had been some tensions relevant to sharing water from the spring, which were exacerbated when the former owner of Royal Gorge, in 1988, began selling, without Placer County permits, bulk water to boutique bottled water firms.
Royal Gorge LLC, the new owner, needed to get back-permitted by Placer County, as they had continued the bulk sales without permits (there is now a negative declaration noticed, and permits are supposedly in process), so the small Rainbow Mutual Water Company used the lack of permits question to help negotiate more secure access to water. To the best of my knowledge they came to a mutually satisfactory solution, with assurances given by Royal Gorge LLC that the 10 or so tanker trucks a day hauling away spring water would endeavor to exit downhill, instead of grinding through their gears uphill.
However, other long-time cabin owners in the same Big Bend area haven’t been so lucky. They get to hear the trucks hauling off water, but despite requests, Royal Gorge LLC will not contract to provide these Big Bend neighbors water that they now desperately need. Royal Gorge LLC has chosen instead, to sell water to Granite Construction Company to be used to dampen down dust on the construction job on HWY 80. Yes, you read that correctly- instead of providing water, at a fee of course, to neighboring cabins who have a pressing need for potable water, they’ve opted to sell pure, clear spring water to dump on the freeway.
It should be noted that Donner Summit Public Utility District (DSPUD), a short jaunt up HWY 80, stands ready, willing, and able to sell recycled water for freeway construction uses, as they have done in the past. Several things come to mind here. First, does Caltrans, and county road maintenance services, when they select contractors for various jobs specify that recycled water, if available, be used to dampen dust? If not, considering our water situation in California, regulations to that effect should be put in place immediately, as this is a shameful waste of water- here water that should either flow to the South Yuba, or, allow somebody to make a cup a tea, or run a bath. Second, why would a large construction firm contract to purchase drinking water, when recycled water is available nearby? I would imagine recycled water would be much less pricey than water suitable for filling boutique bottles.
Third, and here’s where we plumb the low depths, what is Royal Gorge LLC, in their collective capacity thinking? A Royal Gorge LLC employee, when questioned why they wouldn’t sell water to their thirsty neighbors, indicated that they wanted to save the water for use up at their proposed development at Donner Summit– their impracticable “Plan B” which would entail pumping water almost 10 miles, and 1000 feet up in elevation, with force mains, to water 1000 units. Aside from the fact this plan is only marginally feasible, it would amount to some of the most expensive water in California, and would entail ripping up 10 miles of historic Highway 40. This excuse for not obliging neighbors is questionable, moreover, as Rainbow Lodge is currently advertised for sale with the bulk water operation included as part of the sale, which is inconsistent with plans to pipe the water up to the Summit.
Remember those state water rights? Royal Gorge LLC has post-1914 state water rights, and it is unclear the extent of those rights. Underlying those rights, though, is the prohibition against wasting water, and, whether or not watering highways is considered a beneficial use of water, I can’t think of a much bigger waste than selling drinking water that your neighbors need to a construction company to spray on freeways, when recycled water is readily available for that purpose.
And as to water wrongs–the water in the state belongs to the people of the California–Royal Gorge LLC merely has the right to use it. It doesn’t get much wronger than this—selling it to a contractor to keep dust down, when neighbors need potable water. Situations like this indicate that perhaps the system for doling out water in California needs a serious rethink. Perhaps it’s time, in the interests of fairness and practicality, as well as the protection of rivers and fish, to look at water distribution in a whole new way.
Royal Gorge LLC, who of late spends so much time with lawyers, especially lawyers specializing in water, should take note of that old legal maxim, “He who seeks equity must do equity”, substitute the word ‘water’ for ‘equity’, and send some of that Rainbow Springs water to their needy neighbors. They’d come up fathoms in everyone’s estimation.
Kathryn Gray is a graduate of the School of Social Ecology, University of California at Irvine, and Boalt Hall School of Law, University of California at Berkeley. She and her husband, Joseph Gray, founded a specialized semiconductor company in 1989. Now retired, they spend their time on environmental causes, including monitoring the large development proposed on Donner Summit. More information on this development may be found at www.saveoursummit.org