There hasn’t been an old-fashioned, bareknuckle water-rights battle in this historic mission town since 1931, but suddenly a new dispute is turning friends into enemies and sending officials digging through centuries-old records.
Prompted by the high cost of state water and a desire to become more self-sufficient, the city is laying an unusual claim to a murky underground water basin, a move that water officials from neighboring communities around the Capistrano Valley charge is an outrageous water grab.
The dispute may be settled by examining the history of one of the oldest corners of civilization in the state, a community that existed long before the band of Spanish explorers led by Gaspar de Portola arrived here in 1769.
On Jan. 27, San Juan Capistrano petitioned the State Water Resources Control Board to grant it special “pueblo rights” to the underground water based on the city’s history as a nearly 250-year-old community once ruled by the kings of Spain.
Founded in Roman law and considered one of the most powerful water rights in California law--and, so far, one granted by the courts only to the cities of Los Angeles and San Diego--pueblo rights dictate that all waters passing through an ancient community are owned by its residents and controlled in trust by the town’s council.
The city’s angry neighbors say San Juan Capistrano has no special rights, especially if it means hogging water they believe should be shared with them. Regardless of what the final decision will be, the dispute is becoming lively--as water battles usually do.
“What is the old saying: ‘Whiskey is for fighting, and water is for killing,’ ” said Susan M. Trager, an Irvine-based water-rights attorney who has been working on the case for San Juan Capistrano. “Water is always an emotional issue. It’s irrational, it’s religion. It’s the history of the West.”
Upon that point, one of Trager’s adversaries, lifelong San Juan Capistrano resident T.J. Meadows, is willing to agree.
“There were two things you didn’t mess with in the old days--a man’s horse or his water,” said Meadows, general manager of a joint powers agency of four Capistrano Valley water districts from Laguna Niguel, Mission Viejo and Rancho Santa Margarita that are at odds with the city.
“People got shot for that,” Meadows said.
This latest unpleasantness with San Juan Capistrano, said Meadows, has left him feeling “betrayed.”
For years, particularly since the early 1960s when cheap, good-quality water arrived in this valley via new pipelines that imported water from the Colorado River, no one was willing to die for the water that collected in the San Juan Basin.
The water drifts down from the Santa Ana Mountains through the housing tracts of Mission Viejo and the hardscrabble canyons, the sand and gravel mines, and the leased farmland of 40,000-acre Rancho Mission Viejo. It flows in three creeks--the San Juan, Trabuco and Oso--and has been virtually ignored for decades.
But because of the lingering drought and other limitations on the availability of imported water, the water loaded with iron and manganese that collects in the underground basin has suddenly become a precious commodity.
As enticing as the underground water is, nobody really knows how much is down there. Even old farmer’s logs and records from Mission San Juan Capistrano going back to 1776 don’t reveal how much water has collected beneath the valley.
“Until you start pumping water out, and see how the basin reacts, you just don’t know,” said Meadows, who was San Juan Capistrano’s director of public works for 30 years.
It was curiosity about that unknown and the anticipation of drought that led to the creation of the San Juan Basin Authority in 1972. Members of water districts representing the new communities of Mission Viejo, Laguna Niguel and Rancho Santa Margarita got together with San Juan Capistrano to decide how to manage the valley’s underground water.
Two long-range and costly projects have been discussed for decades--dams and desalination plants. But as long as the cheap and dependable water from other sources has been available, little planning was done.
At least until now, as seven years of drought and talk of water prices rising to $500 per acre foot have rekindled interest.
In the first step to secure funding for desalination plants, the authority has applied to state to tap the underground water basin on behalf of all its member agencies.
The authority has asked for a minimum appropriation of 12,500 acre feet of water annually from the basin, an amount that San Juan Capistrano officials argue is too much.
That sparked the battle, as San Juan Capistrano protested that under of its ancient pueblo rights, it is entitled to top priority in taking the basin’s water.
Not only that, but it should be San Juan Capistrano parceling the rights out to the other authority members, argued Ray Auerbach, the manager of the Capistrano Valley Water District, the city’s water agency.
“We know it is not real popular with the others in the agency, but we have to protect our rights,” Auerbach said. “We are the major (water) pumper from the basin and we have to make sure there is enough water there for our interests.”
What’s more, recent state case law seems to support the fact that when it comes to water rights, you must use it or lose it, attorney Trager said.
“While the city probably wouldn’t lose its pueblo rights for non-assertion, the actions of the state water board are not as clear anymore,” Trager said. “The board tends to like the ‘don’t use it and lose it’ approach. The thinking is that’s one way to create new water for environmental purposes. And the board also doesn’t want people hoarding water rights.”
But frustrated directors of the basin authority say that unless members present a united front, the authority won’t qualify for funding to build the water desalination plants, said William W. Knitz, an authority director and longtime general manager of the Santa Margarita Water District.
His district oversees water for the city of Mission Viejo, the privately owned Rancho Mission Viejo and the new developing community of Rancho Santa Margarita.
“We are not going to go down there and spend $30 million or $40 million (for desalination plants) without having secure water rights ourselves,” Knitz said. “You couldn’t get a bank or anybody to lend you the money. It doesn’t make sense.”
Meadows is even more direct: “What the hell is going on?” he demanded.
Standoffs over water are nothing new in San Juan Capistrano or throughout the dry Southwest.
It is the historic volatility of water rights battles that prompted the creation of the office of the state engineer in 1878, shortly after California became independent from Mexico.
William Ham Hall, the state engineer, wrote a landmark treatise in 1886, “Irrigation Development,” stating that by Spanish custom, taken from earlier Roman laws, waters were held in trust by municipalities, called pueblos, as common property.
Hall wrote of visiting San Juan Capistrano and finding villagers still following the old Mexican customs of distributing water through man-made ditches and aqueducts called zanjas, some of which still exist today in the mission and other parts of the city.
As was the custom, the villagers would gather early in the spring after the rains and select a boss, called a zanjero, who would oversee the peaceful distribution of the city’s water, Hall wrote.
Trager, who is busily dredging through old documents to prove San Juan Capistrano qualifies for pueblo rights, claims Hall’s notations of the zanjas provide the key to the city’s case. The zanjas winding throughout the city show that a water distribution system has been used in the valley for more than 200 years.
“Those zanjas prove it,” she said. “That’s why there is this right, because (the villagers) did it.”
Trager is pinning her hopes on a landmark California Supreme Court ruling handed down in 1975 in a case pitting the city of Los Angeles against the city of San Fernando.
After 20 years of legal haggling, the high court for the first time recognized pueblo rights. It held that the city of Los Angeles indeed has the rights to all the waters, above ground and below, that flow through the city, by virtue of its history as a Spanish pueblo.
Despite Trager’s arguments, other water rights experts are not so sure that pueblo rights are binding.
Pueblo rights have been asserted by San Juan Capistrano before, as back in 1931 when a temperamental old Orange County speculator named Louis Robinson took on the town in his fight to divert a portion of Trabuco Creek.
Robinson, a short, full-bearded man with a wiry head of salt-and-pepper hair that looked like a clump of steel wool, owned the rights to 182 acres land upstream of the city. He raised the ire of San Juan Capistrano ranchers by asking the state to grant him the right to divert water from Trabuco Creek and to store it in nine small reservoirs to irrigate his property.
Although he took on the richest ranchers in south Orange County, all of whom claimed they had pueblo rights to the water, Robinson won.
“He was involved in water cases all around the county and was nobody’s fool,” said Orange County historian Jim Sleeper. “He was an avid defender of his own potato patch.”
Finally, the state water board ruled that the water uses suggested by Robinson were “useful and beneficial” and that there was “sufficient unappropriated water in Trabuco Creek to justify approval.”
A similar argument will be made by the San Juan Basin Authority, according to Meadows.
Not only that, but the authority will argue the city has no pueblo right because it was never officially recognized as a pueblo.
“The king of Spain gave the Catholic Church a grant of 44 acres to build a mission. That’s how all the missions were built,” Meadows said. “Neither the word pueblo nor water rights were ever mentioned.”
Water Turns Gold: With the price of water imported from around the state rising rapidly, the long-ignored underground water basin beneath the Saddleback mountains, fed by the three major South County creeks, has turned into an increasingly precious source. A dispute over the rights to that underground water has led to a tug of war between San Juan Capistrano and its neighboring cities, one that may be ultimately settled by the mission city’s history as a Spanish pueblo.