O’Melveny Worldwide

Daily Journal: Novel Water Rights Opinion Says Use it or Lose it

April 7, 2021

O’Melveny counsel Heather Welles and Russell McGlothlin, both authorities on water law based in California, provided commentary to Daily Journal for this article reporting on a recent 5th District Court of Appeal decision “that effectively bar[s] nonpumping landowners from accessing their water rights.”

The case at hand was first filed in 1999—over 20 years ago—and concerns access to an Antelope Valley water basin in Los Angeles county that is in danger of running dry from overuse. The appellate court’s affirmation of a previous 2015 lower court ruling requires “dormant landowners,” identified as those who have not utilized the basin’s water since 2001, to seek permission from groups who have been active extractors.

Welles told the publication that there has typically been a distinction between groundwater and surface water in the eyes of the court, where groundwater rights have previously been granted based on land ownership and surface water rights based on usage. Priority access for users “has been talked about as a potential doctrine that could apply in the groundwater context, as well, but it has never been done," she said. “So this case is particularly important because the court is upholding the trial court’s decision to basically apply that doctrine here to groundwater.”

McGlothlin added that California water laws are murky due to their simultaneous application of rights to land-owners and appropriators, a combination of two previously distinct systems. “Our Supreme Court in 1886 decided that we were going to meld those two very fundamentally different legal doctrines together,” he said. “That hybrid has made a terrible mess in part because the folks that are serving water to our cities and our industrial users—arguably some of the highest utility value uses—are appropriators, so they sit there, junior in priority to landowners. So the court has. . .since 1886, been trying to put that genie back in the bottle through the use of various equitable doctrines.”

Daily Journal subscribers can read the full article here.

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