Paso’s Dry Vineyards – What Exactly is the Law?

May 4, 2014Articles

Paso Robles has been a water battleground. Following last year’s moratorium by Paso Robles on allowing any new vineyards to use existing water supplies, the fight has only become more intense, moving into the courts and into the public awareness. Paso Robles may be at the leading edge of what is an increasing fight for existing – and diminishing – water.

Before last summer, existing wells could be pumped as much as the owner wanted. That all changed when wells started to go dry and many vineyard owners trucked in water or waited on drillers to become available to drill deeper wells.

So, who owns the increasingly scarce water supply? Properties have water rights – but the holders of the rights do not own the water. Instead, they can merely use it. Much of that use requires that property owners have a permit or license from the State Water Resources Control Board. That board is charged with insuring that water resources are protected and not wasted.

California employs two types of rights. Those living in the east have a system of “riparian” water rights Those rights allow the property owner to use the historic share of water flowing through the property, regardless of how many property ownership changes there may have been. Most states do not require people to have a permit for this type of use.

California recognizes this system, but also uses an “appropriative” system. These systems originated with the gold miners who posted their claims to water rights. They could divert water because they found it first!

Both types of rights were recognized when California first became a state in the 1850s. Naturally, these rights clashed. And led to a Constitutional amendment requiring that the use of water be “reasonable and beneficial.” In 1914, the Water Board became the first “referee” of water rights.

Under the system that developed, during times when water is short, the most recent person to assert a right becomes the first to be required to discontinue its use. Timing of uses are normally determined by date of the permit. When the right is riparian and historical, those water rights get elevated – but all riparian users must reduce their usage equally.

There are many types of water disputes in a system that recognizes different kinds of rights. Establishing riparian rights can be hard when you have to depend on history that may not be well documented. Also, the timing of rights and proving those rights can be a complex challenge.

But, there is more than that. The Water Board has to consider multiple types of water use. Should a farmer’s agricultural use trump the need to have adequate water flow to rivers? This becomes critical in a state that has had to ban some of the commercial fishing of salmon due to dwindling water. In fact, at least two of the seasonal salmon runs is predicted to become extinct due to water loss.