This is a question that comes up all over California, every day. It usually comes in one of two ways:
- I’m about to buy some land. Will I have a water right if the previous owner did not use it for X years ?
- My neighbor hasn’t used his right in X years. He lost it, so I can use it, right?
The short answer is yes, an appropriative, post-1914 water right can be lost. Court-decreed water rights, riparian rights, and pre-1914 are major exceptions, usually – we’ll discuss those cases later in the post. What most people are thinking of is the provision from WATER CODE SECTION 1240-1244:
1241. If the person entitled to the use of water fails to use beneficially all or any part of the water claimed by him or her, for which a right of use has vested, for the purpose for which it was appropriated or adjudicated, for a period of five years, that unused water may revert to the public and shall, if reverted, be regarded as unappropriated public water. That reversion shall occur upon a finding by the board following notice to the permittee, licensee, or person holding a livestock stockpond certificate or small domestic use, small irrigation use, or livestock stockpond use registration under this part and a public hearing if requested by the permittee, licensee, certificate holder, or registration holder.
“Board” means the State Water Resources Control Board. The emphasis on “may” and “if” is mine, and it is important. Loss of a water right under this provision is not automatic. It takes a complaint by someone to get it started, just as it takes a complaint for someone to get a water rights case heard by the judge of a Superior or Federal Court.
Then, if the water right holder protests that yes, he or she has diverted water during the last 5 years, it’s up to the complainant or the Board to prove that water was not diverted. This might be from yearly photos of the land in question (rare), testimony by several neighbors;, or a lack of records from the water right holder, showing that there was indeed pasture with cattle, or hay, or some other beneficial use; or some other evidence.
Let’s consider riparian rights and then put that discussion aside. A riparian water right cannot be lost for non-use, since it is established by the Constitution of the State of California. Riparian rights are not being considered here.
How does someone know that their water right may be on the chopping block? They will have already had phone calls and probably visits from Board staff. There should be no surprise at this point. Then, the Board will send a letter that starts something like this:
There is an opportunity to dispute the assertions in the letter, and a water right holder can request a hearing (or hearings) before the Board. If the alleged non-use is not a watertight case, the process can take a year or longer.
What if the water is a pre-1914 water right? Can it be lost? The answer used to be a fairly solid “no”, but the Board’s authority has increased in recent years. It is harder to lose a pre-1914 right but the best defense is having used it at least once in the past five years, and having some proof it was used.
What if the water right is part of a State Superior Court or Federal District Court decree* or adjudication? Interestingly, very few decrees have ANY provision for expiration of water rights. In addition, courts usually maintain jurisdiction of these cases, so that any following petitions or lawsuits over decreed water rights must go back to court. In essence, this makes decreed rights “eternal” or permanent, unless the rights are changed in a subsequent lawsuit. *Statutory adjudications where the Board issued an Order of Determination, and then took it to the Superior Court to be adjudicated, might be easier for the Board to bring before the court for a revocation action.
What does the Water Board think about that? Board staff assert that they have “concurrent authority” with State Superior Courts. That means they have equal power over water rights.
Some at the Board say they have authority over the same water rights that the court does. Is that true?
Let’s say that it is true. Has the Board ever asserted its authority over decreed water rights in court? The last few times I asked Board staff, the answer was
“no”. So it may be true, but as far as I have heard, it has not been tested. So, no, decreed rights cannot be revoked by the Board without going to court.
Summarizing the subject of losing post-1914 appropriative water rights for five years of non-use, then, they can be lost if the water right holder admits it, or if there is good evidence that water has not been used. Pre-1914 rights are harder to lose but it can happen. The Board cannot revoke riparian rights because they are defined in the State Constitution. Court-decreed rights cannot be revoked by the Board without going to the court with a petition or as part of a lawsuit.