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With Growth, Northern Cities Stake a Claim to More Water

Resources: Invoking the 70-year-old 'area-of-origin' statutes could shrink Southern California's supplies.


FAIRFIELD, Calif. — This city to the east of San Francisco Bay is trying to cash in on a promise made a lifetime ago.

Invoking a 70-year-old law that was passed to keep one region from drying up another, Fairfield and two neighboring cities are seeking rights to water that for decades has been shipped south. Experts say their application could inspire others in the north to do the same, eventually shrinking Southern California's water supplies.

The Bay Area cities argue that they have priority over Southern California to take water from Barker Slough, which drains into the Sacramento River. As justification, they point to a state law passed not long after Los Angeles commandeered the water of the Owens Valley and doomed its farms to dust and desolation. The law was designed to ensure that growth in cities and counties along major rivers would not be stymied by projects that diverted water hundreds of miles away.

Fairfield, Benicia and Vacaville have asked the state Water Resources Control Board to grant them rights to enough water to supply 155,000 people for a year--water that would otherwise be channeled to San Joaquin Valley farms and Southland cities.

"We're growing, we need the water and we don't have other sources," said Rick Wood, Fairfield's assistant director of public works.

The cities' application is one of the first to push the boundaries of what are known as California's "area of origin" laws. And it won't be the last, many experts predict.

These laws will get more attention, some say, because little water is left for the taking and a new law requires builders of 500 or more homes to prove they've got adequate water supplies. That requirement, which took effect in January, will force many communities to legally quantify their water rights instead of simply assuming the water will be there when it's needed. Applying for more water under the old area-of-origin statutes might be the easiest way for some cities and counties to expand their supplies and justify growth.

"We're going to see more and more petitions under these statutes, because the Sacramento River is over-appropriated and the San Joaquin River is over-appropriated and people are running out of water for growth," said Michael Jackson, a Plumas County attorney for the Regional Council of Rural Counties.

Southern California water officials acknowledge that growth to the north will cut into their supplies--planners decades ago assumed as much--but nobody knows to what degree.

The only recent application under such statutes to reach a final decision by the state water board involved El Dorado County's request to take more water--enough to supply nearly 90,000 people for a year--from the American River east of Sacramento. The board granted the county the water last year, with some conditions. Environmentalists concerned that the increased diversion of water will harm Sierra lakes and trigger explosive growth have challenged the decision in court.

Area-of-origin laws date to 1931, only a few years after desperate Owens Valley farmers dynamited the Los Angeles aqueduct. Government engineers at the time were plotting to shift the flow of northern rivers south in schemes even more audacious than Los Angeles' tapping of the Eastern Sierra.

The 1931 law and several that followed decree that even though huge quantities of water could be pumped hundreds of miles from California's major rivers, communities near those rivers would get priority to take more water when they grew enough to need it.

The law does not guarantee the communities more water. They still must apply to the state, show a need for it and, if necessary, build a system to capture and move the water--a proposition too expensive for many rural Northern California counties. The law simply gives these "areas of origin" the opportunity to get higher standing in terms of water rights than those cities and farms served by state and federal water projects.

"The whole logic of the statute is that, even though the water's been exported to other areas for many years, if the water is now needed in the area of origin, it should be possible to recapture what's needed," said Harrison "Hap" Dunning, a retired UC Davis law professor.

For decades, the statutes have been fairly passive protections. Many Northern California irrigation districts and cities had locked up generous water rights long before the federal and state governments built the dams and canals that serve Southern California. For many years, those rights have ensured enough water for new farms and subdivisions in the north.

But now, in some places, that slack is disappearing. In the last few years, water seekers have begun to lean on the area-of-origin statutes.

"What's happening is what you'd expect," said Fairfield's Wood. "On the fringes of the Bay Area, where the development is occurring and reaching out into the Central Valley, that's where you're going to see this applied first."

Largely untested by courts, the statutes may be tricky to apply.

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