What do you do if your water right has never been recorded with the State Water Resources Control Board? Or, if your property was split from a larger farm or ranch, and you are handling your smaller water right on your own? After all, every water right has to be filed with the Water Board, except most of those that are uniquely listed in Superior Court Decrees. This is true regardless of whether the water right is riparian or appropriative (pre- or post-1914).
You’ll need to file an Initial Statement. These are 4 pages unless cannabis is grown with the water right – that adds page 5. The forms are downloadable, fillable PDFs. If you have your information together and you are handy
with Google Earth, you might have your form done in a few hours. As with any property description, the better it can be explained, the easier it is to defend your water right if someone has a complaint.
With the Water Board, it’s better if you file before the Water Board comes looking for you. I have not seen folks get fines for filing even when water rights have been used for 50 years, or 100, or even since 1850 (or earlier). The Water Board folks are good to work with and they would much rather that people become compliant with the law, than write nasty letters and issue fines. That may not always be true as regulations get tougher, so get your filing done soon!
How is an Initial Statement different from filing a Water Right Application? An Initial Statement is filed if the water right is already in use. The Water Board is careful to point out that an Initial Statement is not the basis of, nor is it proof for a water right. It is just the way to report if diversion or storage has taken place for some time.
What if your storage or diversion began after 1914, since that is when the Water Board was created and when its authority began? Except for riparian rights, this is a gray area. I think the official answer from most folks at the Water Board is that appropriative water rights after 1914 are only established by a water right application, obtaining a Permit, and hopefully perfecting that Permit into a License.
In reality, there have been many Initial Statements filed for post-1914 water rights. It seems that these stand if there isn’t already a complaint against the filer, and if the water right is not in an already over-appropriated stream where there are obviously more water rights than water. The presence of chinook salmon or steelhead trout might put a post-1914 Initial Statement in question, too.
The problem with filing a Water Right Application is that you have no idea what the outcome may be. It might be denied, or have restrictive conditions imposed, and you won’t know until you have spent some thousands of dollars. Even if your water right is senior to some rights that were filed decades ago, the outcome is unknown. Also, the Water Board folks are extremely busy, and some applications are never completed.
So, many folks take the safe action to protect their water right and comply with the law: they file an Initial Statement. Better to do something not exactly right, or even wrong, than nothing at all.
