Write It Down (Or Possibly Lose A Water Right)

I got a call from a distraught diverter.  “My grandfather has irrigated this land since at least 1910, from _______ Creek.  Everyone knew about it at the time, we get 1.2 cubic feet per second for 105 acres of pasture up here.  Nobody was worried about filing on water rights back then, so we didn’t file at the Water Board until a few years ago.  But a new guy moved in next door and he says we don’t have a water right, it’s all his water.  We do have a well but we don’t use it until late in the season when the creek flow drops way down.  The neighbor claims we only use the well and never use the water from the creek.  Then he went and filed a complaint with the Water Board saying we never used water, which is a lie.  We got some letters from the state, we figured they were just the regular reminders and we were really busy.  It turns out one of the letters said the Water Board wanted to come to the ranch and see if we really divert water.  Now we have a letter that says we have to ‘cease and desist’ within 30 days or pay $500 per day fines!  What can we do about this?”

I asked, “Did your grandfather, parents, or you write down notes when you were irrigating?  Do you have photos at the diversion showing you were taking water?  Did you measure the flow somehow?”

“No, we don’t have anything like that.  But everyone around here used to know who used the water!  It wasn’t a problem until there were new owners.”

Have you heard the saying, “Write it down, or it never happened.”?  That is true in everything – conversations, phone calls, purchases, 

From one legal website, here is a list:

What Types of Contracts are Required to be in Writing?   Contracts that are for the transfer or sale of land, are for the sale of goods over $500, cannot be fully completed within one year of signing (according to the contracts terms), are related to marriage, involve a promise to pay another person’s debt (“surety contracts”), or will continue beyond the lifetime of a party performing the contract.

Water rights definitely belong on the list!

When I was a bureaucrat, I learned early on to document the work I was doing, document processes so I and others could do some technical process faster next time, and document all important conversations.  When email came around, I learned to email things to myself to have a record.  Then, 5 or 10 years later when questions came up, I had a dated electronic document to answer with.

So what happened with that diverter who called?  The diverter called the Water Board staffer who wrote the letter and arranged a visit to the property.  I went out and took photos, measured the diversion, put in a temporary measurement device, and wrote a report detailing all that the diverter told me.  Two Water Board engineers visited and wrote up a report.  Then nothing happened for three years.  The diverter is still using water from the creek, and now is measuring the amount of water and reporting it every year.  Hopefully the state won’t take any further action, but we don’t know.

The lesson is, keep records!  Even if something happened 100 years ago, write down now what you know about your water right, the diversion rate, the acreage irrigated, number of livestock.  When a complaint comes, it’s a lot easier to refute when you can just hand over a written account.