Town’s Water Rights Claim Stirs Up Torrent of Anger

There hasn’t been an old-fashioned, bare-knuckled 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 basin, a move that water officials from neighboring communities in the Capistrano Valley charge is an outrageous water grab.

Ultimately, the dispute may be settled by examining the history of one of the oldest corners of civilization in the state, the community that existed long before Gaspar de Portola’s band of Spanish explorers arrived in 1769 at the site that was to become Mission San Juan Capistrano.

On Jan. 27, San Juan Capistrano petitioned the State Water Resources Control Board to grant it special “pueblo rights” to water, based on the city’s heritage as a nearly 250-year-old community once ruled by the kings of Spain.

Based 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 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 when such rights would mean the city owns water they believe should be shared with them. Regardless of what the final decision will be, the dispute is getting 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.”

On that point, even 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 local water districts that are at odds with the city. “People got shot for that.”

For years, particularly since the early 1960s when cheap water arrived in this valley 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 twin Saddleback mountains--at nearly 6,000 feet, the highest peaks in Orange County. It flows in three creeks--the San Juan, Trabuco and Oso--and has been virtually ignored for decades.

But because of the recent 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.

The city of San Juan Capistrano should have the right to parcel out the water, argues Ray Auerbach, manager of the Capistrano Valley Water District, the city’s water agency.

“We are the major (water) pumper from the basin and we have to make sure there is enough water there for our interests,” he said.

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.

In 1886, William Ham Hall, the state engineer, wrote a landmark treatise, “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 custom 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 claims Hall’s notations of the zanjas provide the key to the city’s case. The zanjas throughout the city show that a water distribution system has been in place in the valley for more than 200 years.

Despite Trager’s arguments, other water rights experts are not so sure that pueblo rights are binding.

Rival water officials plan to argue the city has no pueblo rights 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.”