By Lloyd Lowrey
The simple truth that people need both food and water, and plants need water to produce food has long been recognized in California. Water Code section 106 provides “the use of water for domestic purposes is the highest use of water and that the next highest use is for irrigation.”
This declaration of policy seems clear but it was not intended to exclude further policies.
Since codifying the policy in 1943, the California Legislature has adopted other water use policies. All policies are read together so that none can claim an “absolute” priority. Nevertheless, Section 106, the statement of priority for domestic and irrigation uses, has remained unchanged. Looking ahead, whether irrigation for food crops maintains its second-highest priority or competing uses erode irrigation’s status remains to be seen.
Title 23 of the California Code of Regulations, governing the State Water Resources Control Board and Regional Water Quality Control Boards, defines “irrigation use” as including “any application of water to the production of irrigated crops or the maintenance of large areas of lawns, shrubbery, or gardens.” Under this definition, golf greens have equal priority with lettuce fields, both being higher than non-domestic, non-irrigation, commercial use.
First priority “domestic use” is defined as “the use of water in homes, resorts, motels, organization camps, camp grounds, etc., including the incidental watering of domestic stock for family sustenance or enjoyment and the irrigation of not to exceed one-half acre in lawn, ornamental shrubbery, or gardens at any single establishment.” The use of water at a camp grounds or resorts for human consumption, cooking or sanitary purposes is a “domestic” use. “Commercial use,” such as the watering of commercial livestock, is not a domestic use.
Judicial interpretation of the policy in section 106 is not extensive, but does provide some guidance. Domestic priority has strong, but not exclusive, support. In a dispute between domestic and irrigation use, section 106 has been applied to enjoin all agricultural use of a small creek by one landowner to satisfy an existing reasonable, domestic use of a neighbor. On the other hand, the section has been interpreted as not requiring a district to grant priority or preference for potential domestic water users over current irrigation and other non-domestic users.
The domestic use priority has been bolstered by the adoption last year of Water Code section 106.3, the “guarantee” of water for human consumption. Section 106.3 is too new to provide much guidance on what, if any, impact it might have on the irrigation priority. To date, cases interpreting section 106.3 include an assessment dispute between a city and a water district. Section 106.3 has also been cited in opposition to a challenge of the Pajaro Valley Water Management Agency’s groundwater augmentation “change.”
Section 106.3 requires “all relevant state agencies” to “consider (106.3) when revising, adopting or establishing policies, regulations and grant criteria” when “pertinent to the uses of water described in this section.” Thus it may have significance primarily for funding and regulation of water systems, proceedings involving water quality, and water planning. The Safe Water Alliance claims that the policy stated in section 106.3 only “refines” the domestic priority stated in section 106 and will have no significant impact on agriculture.
Regarding the irrigation priority, in a dispute between irrigation and non-domestic users, a district was not allowed to adopt a fee structure that charged commercial users less than farmer users. In the important area of water conservation regulation, however, the California Supreme Court held section 106 did not invalidate water district contracts which imposed greater reductions on water deliveries for agricultural uses than for all other non-domestic uses during drought periods.
Other policy considerations may affect the priorities stated in section 106. In the National Audubon Society case, the California Supreme Court read section 106 to allow reallocating water rights to take into account environmental considerations. In another case, the court rejected a city’s attempt to use the domestic priority under section 106 to justify using eminent domain power against an irrigation district. Special Acts may also provide competing priorities. There are three such acts in Monterey County. The policies stated in these special acts must be considered and may outweigh the general policy for irrigation priority after domestic use.
The priority stated in section 106, both for domestic and for irrigation uses, can be helpful when it aligns with or is supported by other public policies. However it is not likely, by itself, to win the day for farmers. The statutory priorities likely will have the greatest influence in regulatory decisions involving water quality and water conservation and in planning. Domestic priority has been underscored by the adoption of section 106.3.
Farmers’ irrigation priority remains the law as second only to domestic use. Interpretations of the priorities by the courts over the years indicate that irrigation use will not be subordinated to non-irrigation commercial uses. Thus irrigation use will be protected from discriminatory fees, assessments and regulations imposed by municipalities and counties to favor non-agriculture commercial uses. Agriculture needs to remain vigilant to ensure that irrigation’s second priority use is maintained.
Lloyd Lowrey is a shareholder of Noland Hamerly, Etienne & Hoss, a professional corporation of attorneys at law. His practice emphasizes real property, water, public agencies and business and nonprofit organizations. He advises and represents clients in transactions, operational issues, and resolving disputes through negotiation, mediation, arbitration and litigations.
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