Solving Diverters' Headaches To Provide Peace Of Mind And Help Stay Out Of Trouble
Category: Future Rights
Water rights have changed from Statehood in 1850 until now. What can we expect in the future? More data on precipitation, water use, and groundwater levels point to increasing difficulty in protecting the full use of historic surface water rights.
At Don Wright’s WaterWrights news, his July 20 article explains that there is some hope for amendments to bills SB 389, AB 460, AB 1337.
“Legislative committee consultant Alex Dominguez said he has been attending many, many meetings and has seen the opposition to the three big water rights bills: SB 389, AB 460 and AB 1337. He said AB 460’s author Assemblywoman Rebecca Bauer-Kahan or RBK, has dug her heels in and isn’t willing to work with the water community. That’s what I’ve been hearing also. It sounded to me like there is some hope for SB 389 being amended in a way that could actually be helpful. Let’s see what happens with that. Attorney Lauren Layne added there is some indication AB 1337’s author Assemblywoman Buffy Wicks may be willing to amend the bill to make it more palatable.“
Three water rights bills are headed to the floor for votes, as of May 18, 2023. These bills propose to make water right holders prove their claims whenever the Water Board demands, inspect your diversion without your permission if the Water Board says it’s for public health and safety, and make senior (riparian and pre-1914) water right holders curtail their water rights. Your Farm Bureau, Cattlemen’s Association, and other groups are working to reduce these bills, and to encourage legislators to vote against them.
I summarize bill information below, and you should read the bill text yourself. Each bill name below is linked to the bill text at https://leginfo.legislature.ca.gov/. There are a few good newspaper articles; one is at the Modesto Bee.
SB 389 would make you have to prove your water right, regardless of whatever information you or previous holders of the right have submitted to the Water Board. Then the Water Board would decide whether you have a right at all, and what kind of water right you have. The Water Board would demand information including your use of the water including your measurement device, calibration, accuracy, photos, maps, quantities, all diversion data, etc.; the basis of the water right claimed; patent date claimed for the place of use; notice date of the appropriation and the date of actual delivery of water to beneficial use; prior diversions and use, including direct diversions and diversions to storage; and diversions and use of transferred water.
AB 460 would let the Water Board inspect your property with no warrant if they decide that public health and safety are at risk, and if you don’t voluntarily let them inspect. The Water Board could now issue you an interim order to stop diverting or take some other action, whether or not there is a complaint. The bill language is not clear on this, but it looks like the daily fines for violating “a term or condition of a permit, license, certificate, or registration issued by, or an order or regulation” would increase from $500/day to $1,500/day, up to $10,000/day. You could request a hearing within 20 days after being served with the complaint, but the Water Board could make an interim order before the hearing if they think that “immediate compliance is necessary to prevent imminent or irreparable injury to other legal users of water, or to instream beneficial uses.”
AB 1337 would let the Water Board curtail any water right at any time for any reason. This would include pre-1914 and riparian water rights. Also, it would let the Water Board continue its current practice of permanent curtailment, in which the Water Board lets you know each week that it’s okay for you to divert. The Water Board would continue to make you go check your curtailment status online each week.
What Can You Do?
Get all of your paperwork together. Whatever you have related to your water right, get it all in one place. Do this now, don’t wait for a call from the Water Board.
If you have a pre-1914 water right, you will need to have a copy of the original claim and any other related records from the Recorder at the county. Most have water right books with one or more indices to look up the original claim. Prior to 1910, most of them will be written in cursive, so they can take awhile to read and understand.
Make sure you have records of your water use. Ideally, there will be a diary, log book, or other notes recording what was grown each year and an estimate of the quantities. If you know the previous owner, ask for a note on when and how water was used. It is important to have documented water use at least every 5 years; this used to apply only to post-1914 water rights and the Water Board is now looking for this with pre-1914 water rights.
Upload digital copies of your most important records with your last Supplemental Statement (for pre-1914 water or riparian right) or Report Of Licensee (for post-1914 water right). Make things easy for the Water Board to find.
The Water Board posts your Initial Statement Of Water Diversion And Use on their website, along with the following Supplemental Statements. You may have more important records in your hardcopy water rights folder at the the Water Board. You can either go to Sacramento to review your folder, or request that your folder be scanned by a third party that you make arrangements to pay.
This is a question that comes up all over California, every day. It usually comesin 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 cannot be lost – 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 theState 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 a crop, pasture with cattle, 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, and they are discussed in greater detail in the post Riparian Rules by Chuck Rich.
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 orFederal 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.
Courthouse. Photo Credit: Pixabay
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.
What if a water right is managed by a water district, irrigation district, or other agency? It boils down to, who owns the water rights? If the district or agency owns them, then they can usually reassign them because of non-payment, and for some other reasons, too. If the landowners own the water rights, then all the preceding paragraphs of this post apply. The agency or district just wheels the water, for which they can collect fees for operation (labor) and maintenance if their bylaws allow.
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.
Update: I wrote this post for property owners NOT in a municipality, water company, water district, irrigation district, community services district, or other organization that has its own bylaws regarding the rights to and distribution of water. For property that gets its water this way, water rights depend on how the bylaws allow redistribution, sale, temporary reassignment, or other transfer. There may even be an original court decree that specified rights to individual owners, but the agency passed bylaws later that assigned water rights to the agency instead. With the exception above considered, here is the original post:
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When a farm or ranch subdivides, what happens to the surface water rights? We already got part of the answer from the State Water Resources Control Board, in Post # 82:
The answer is well defined when a Superior Court Decree is under State of
California Watermaster Service: Water Rights Reapportionment Method. This document describes what is done under nearly all decrees with defined areas for water rights, whether or not under state service…unless some other method is specified. The State subdivides water rights whether or not new owners of subdivided parcels notify the Department of Water Resources; the requirement falls on the State instead of the water right holders. Owners of land are notified at least once a year, since a charge for watermaster service is included on their tax bill.
What ACTUALLY happens with the water, when a subdivision is built on what used to be a farm or ranch? Does water always go with water rights?
New Subdivision On Ranch With Water Rights – Photo Credit: Pixabay
How do the owners of smaller parcels go about getting their water right? In some cases, new owners have invested in pipelines to keep using the water right on the smaller parcels. When the original owner subdivided the land, he or she made it clear that water rights were split up, or may have paid an attorney or engineer to split them up in advance. These owners are well aware of what their rights are. In other places, some new owners use water, others don’t, which is fine as long as a new owner doesn’t complain loudly.
In still other locations, none of the new homeowners wanted to use the water, either because there was a built-in municipal supply of pure or treated water, or because one or more private or community wells were drilled. The water right probably was not advertised as being available when the homes were built, and once the new owners were in, it became a lot more expensive to arrange pipelines across several neighbors’ properties to get a share of the surface water right.
What happens when nobody uses the water, or less water is used? The answer is, of course, “It depends.” If it is a decreed right, then the right stays with the
Subdivision On Old Farm – Photo Credit: Pixabay
land unless the decree specifies another method. It would take another court order to change the rights from what was originally decreed. If it is a riparian right, then unless the owner was very careful to reserve riparian rights when subdividing the ranch, the only remaining rights are with those new parcels still adjacent to the stream. Owners rarely think about reserving riparian rights in these cases, and so the riparian right is lost. That is, unless:
The right was filed with the Water Board, either as a pre-1914 water right or a post-1914 application and the owner was subsequently issued a permit or license
…and the water continued to be used, and that use documented by the owner or with the Water Board
…and the water is used reasonably and beneficially, either for the original purpose of use, or for one of the many other appropriate purposes of use the Water Board considers reasonable and beneficial
…or, the right is part of a Superior Court adjudication, in which case the right is “eternal” because, for all the adjudications I have seen, there is no provision for expiration of rights. Another court case is needed to change rights defined in the original decree.
I know this is not a neat, tidy explanation of what happens to water rights when a farm or ranch is subdivided. Not surprisingly, water rights are well-understood by maybe 1% of California’s population. No offense intended – only a few percent of the population lives on farms and ranches, and a fair number of those are in water or irrigation districts where the board and manager deal with the actual water rights.
In summary, this is an accurate description of what happens, as opposed to theoretical cases. Water right subdivisions have a legal side, and a practical/applied side. Sometimes the legal water right persists whether or not the water is used, as with riparian and court-decreed water rights. Other times the reasonable, beneficial, and mostly continuous use of the water is what protects the existence of that right, for appropriative pre-1914 or post-1914 water rights. Even if a pre- or post-1914 water right is not used for some years, when the owner does start using the water, if nobody complains, there is nothing to trigger action by the Water Board, or a lawsuit by neighbors. After a few years of use, it will be hard for a complaining party to make the case for loss of the right because of the previous gap in time.
By the way, except where courts have decreed what the groundwater rights are, they are most like surface water riparian rights. Regardless of the size of subdivided parcels, all of them still overlie groundwater and have a right to use it. Control of their use is increasing with the Sustainable Groundwater Management Act, and priorities (effective or actual) will be established, but that is a discussion for some later post.
California water rights are complicated, which you already know if you have spent an hour trying to figure them out. From the November 2015 post Water Rights – Why Do They Exist? Which Kinds Are There?, here is the summary list of types:
Riparian – a parcel that touches a stream, spring or lake may use a ” reasonable and beneficial” amount, quantity and rate undefined, per the California Constitution, Article X, Section 2
Rancho rights granted by the government of Spain or Mexico, prior to Statehood in 1850
Pueblo rights, the one belonging to Los Angeles being famous
Appropriative in 1913 and prior, aka “pre-1914”, for parcels not touching a body of water, which started with gold mining and is now mostly for agriculture
Appropriative post-1914, issued by the State Water Resources Control Board (Water Board)
Adjudicated, or decreed, from Federal District or State Superior Court
Groundwater from a well, similar to surface water riparian but for the overlying land
Prescriptive, which isn’t a definite right until decreed by a court
Contracts, which are not rights but rely on some already-existing right
Photo Credit: morguefile.com
From conversations with a reliable source, I found out that the Water Board made two runs at standardizing water rights in past decades. Water right holders would have had 20 years to prove their rights, then all of them would have been rolled into one class or type of water right. There would still be dates of first use, priorities, and so on, but the Water Board would have authority over all of the rights.
So what happened? It didn’t work. The leaders of a large water organization contacted their legislators and said, “Hey, this standardization process might affect our rights. We don’t want that, so please yank the Water Board’s funding for this effort.” And that was that, and perhaps that was best for most water right holders in the state.
Besides that, the Water Board has tried a few times to cancel riparian water rights, as part of adjudications of all water rights in a watershed. The resulting lawsuits undid the Water Board’s actions, and riparian water rights are still the law today.
Worried about SB 88?That’s what this blog is for! Here is where you will find information you need, and can put to use, on selecting and installing flow measurement devices. If you need help,Rights To Water Engineeringcan help you meet the law quickly and at a relatively low cost. (530) 526-0134
California Senate Bill 88 is effective as of January 1, 2016. Here is the part that affects private or small agricultural diverters the most:
Here is a convenient table that summarizes the Water Board‘s more specific regulations. I added the two columns on the right to give folks an idea of how the volumes relate to water rights:
SWRCB Measurement and Recording Requirements for 2017 (diverters exempted where Watermaster reports)
When a farm or ranch subdivides, what happens to the surface water rights? We already got part of the answer from the State Water Resources Control Board, in Post # 82:
The answer is well defined when a Superior Court Decree is under State of
California Watermaster Service: Water Rights Reapportionment Method. This document describes what is done under nearly all decrees with defined areas for water rights, whether or not under state service…unless some other method is specified. The State subdivides water rights whether or not new owners of subdivided parcels notify the Department of Water Resources; the requirement falls on the State instead of the water right holders. Owners of land are notified at least once a year, since a charge for watermaster service is included on their tax bill.
What ACTUALLY happens with the water, when a subdivision is built on what used to be a farm or ranch? Does water always go with water rights?
New Subdivision On Ranch With Water Rights – Photo Credit: Pixabay
How do the owners of smaller parcels go about getting their water right? In some cases, new owners have invested in pipelines to keep using the water right on the smaller parcels. When the original owner subdivided the land, he or she made it clear that water rights were split up, or may have paid an attorney or engineer to split them up in advance. These owners are well aware of what their rights are. In other places, some new owners use water, others don’t, which is fine as long as a new owner doesn’t complain loudly.
In still other locations, none of the new homeowners wanted to use the water, either because there was a built-in municipal supply of pure or treated water, or because one or more private or community wells were drilled. The water right probably was not advertised as being available when the homes were built, and once the new owners were in, it became a lot more expensive to arrange pipelines across several neighbors’ properties to get a share of the surface water right.
What happens when nobody uses the water, or less water is used? The answer is, of course, “It depends.” If it is a decreed right, then the right stays with the
Subdivision On Old Farm – Photo Credit: Pixabay
land unless the decree specifies another method. It would take another court order to change the rights from what was originally decreed. If it is a riparian right, then unless the owner was very careful to reserve riparian rights when subdividing the ranch, the only remaining rights are with those new parcels still adjacent to the stream. Owners rarely think about reserving riparian rights in these cases, and so the riparian right is lost. That is, unless:
The right was filed with the Water Board, either as a pre-1914 water right or a post-1914 application and the owner was subsequently issued a permit or license
…and the water continued to be used, and that use documented by the owner or with the Water Board
…and the water is used reasonably and beneficially, either for the original purpose of use, or for one of the many other appropriate purposes of use the Water Board considers reasonable and beneficial
…or, the right is part of a Superior Court adjudication, in which case the right is “eternal” because, for all the adjudications I have seen, there is no provision for expiration of rights. Another court case is needed to change rights defined in the original decree.
I know this is not a neat, tidy explanation of what happens to water rights when a farm or ranch is subdivided. Not surprisingly, water rights are well-understood by maybe 1% of California’s population. No offense intended – only a few percent of the population lives on farms and ranches, and a fair number of those are in water or irrigation districts where the board and manager deal with the actual water rights.
In summary, this is an accurate description of what happens, as opposed to theoretical cases. Water right subdivisions have a legal side, and a practical/applied side. Sometimes the legal water right persists whether or not the water is used, as with riparian and court-decreed water rights. Other times the reasonable, beneficial, and mostly continuous use of the water is what protects the existence of that right, for appropriative pre-1914 or post-1914 water rights. Even if a pre- or post-1914 water right is not used for some years, when the owner does start using the water, if nobody complains, there is nothing to trigger action by the Water Board, or a lawsuit by neighbors. After a few years of use, it will be hard for a complaining party to make the case for loss of the right because of the previous gap in time.
By the way, except where courts have decreed what the groundwater rights are, they are most like surface water riparian rights. Regardless of the size of subdivided parcels, all of them still overlie groundwater and have a right to use it. Control of their use is increasing with the Sustainable Groundwater Management Act, and priorities (effective or actual) will be established, but that is a discussion for some later post.
At last! The Department of Water Resources (DWR) is seriously considering
Tulare Basin, Photo Credit: usgs.gov
planning for flooding the Tulare Basin and other San Joaquin Valley fields in the winter for groundwater recharge! I worked at DWR for 30 years, and there were proponents of recharge when I started in 1986…actually, since the 1977-1978 drought. I kept waiting for a pilot program to test it. Stony Creek in Glenn County was put forward in the 80’s and 90’s…and then nothing. The meadow restoration crowd said another 100,000 acre-foot “reservoir” could be made in upper Stony Creek just by building check dams, deepening and widening meadows. Between the top and bottom of just one creek, maybe 160,000 AF of new storage per year!
I worked on the proposed Sites Reservoir and personally, I am all for it. However, it’s dumb not to include every increment of winter-time storage possible. When the floods come then put some of them in the ground.
And about time, too, since OTHER bureaucrats want to take some water from Northern California diverters and leave it in the Sacramento River for fish. When I was watermastering, and in fact throughout my 30-year career, that was the top accusation/complaint I got: “The State of California just wants to take away our water and send it to Southern California and fish.” I was always able to say, “No, that’s not it, we’re just looking for ways to get the water that already flows downstream across the Delta, and time reservoir releases better for fisheries.” I sure can’t say that anymore!
Bull. I call cow pies (I try hard not to cuss). The Water Board is part of the California Environmental Protection Agency now, including the Division of Water Rights. Has been for some years, and many of the more balanced staff have retired, as they hire more environmental activist enforcers. From what I have seen, a majority of the non-Water Board part of Cal/EPA executive, managers, and staff believe non-humans have more right to the water than humans.
As many of you diverters have predicted for years, now the troublesome proposal is nearly a reality – an anguishing, changing world for you who work at least half-days (6 A.M. to 6 P.M.) to grow our food in businesses that get thanks from a small percentage of Californians.
It was getting hard for ME to go back and find the posts I had written, so I added a Table Of Contents (TOC) to the left menu bar. As of this date, there are 86 posts! I like to put work into standard, documented procedures to simplify life and make it easier for me to do the same thing next time, and for the next person in my job to pick it up quickly. Why did I wait this long to do a simple TOC?
I wrote 5 times this much verbiage in emails as a bureaucrat, so it is not lack of ability. Of course most of my State emails were for everyday work and coordination. Little of it had public interest.
In this blog, though, every post is of interest to a few thousand water right holders. The TOC lets you scroll through every post at your leisure and pick out the titles you are most interested in today. Tomorrow you’ll have a different question, and the TOC and blog posts will still be here for your use.
Do you have a question or an idea you do not see in the TOC? Let me know and I’ll publish a post about it!
On the How Do I? page, I picked out the burning questions and the posts that provide the best answers. When I received phone calls in the Watermaster job from which I recently retired, this lookup format was most useful in helping someone solve an immediate problem.
Is there a water rights issue or flow measurement problem you can’t find an easy answer for? Let me know and I will write a post, then include the link on this page, too!
Do you think of Florida as short on water? I sure didn’t; I have been there a couple of times and got rained on every day or two. However, a University of Florida study on saving water concludes that if more conservation is needed, it’ll be easiest to get from those who already use less water. That study is summarized in this short article.
On the opposite coast, what does that mean for California? It means that voluntary conservation seems most likely to come from those who are reportedly conserving the most: farms and communities in the San Joaquin Valley, and agencies and homeowners in the Los Angeles Basin.
Black Butte Lake, Wikipedia
Does that mean that water districts and diverters in Northern California do not conserve? There may be less conservation, especially if diverters have a reservoir. Winter and spring flows are stored for later use. Those flows would have gone to a a river and usually, out to the Pacific Ocean. We’ll leave out the discussion of environmental uses of instream or stored surface water, except to say that they are one possible kind of use. There are usually some senior water right holders who have first call to the water, or who get a higher percentage during a drought.
How about irrigators who have little or no water storage? Since they depend on natural flows, droughts mean there is less flow available. It’s not voluntary, but the diverters share the losses, either
Pixabay, public domain
with lower priority water right holders shutting off first, or everyone taking a cut if everyone has the same priority.
The photo on the left shows flood-irrigation, which is the least efficient method and raises the hackles of downstream diverters, or just about anyone south of the Delta. Flooding allows less productive land in California’s mountainous areas, often with shorter growing seasons, to be used to for pasture to raise cattle and other livestock, or for hay which might be used anywhere in the Western U.S.
Pixabay, public domain
Even though not required, flood irrigation is being replaced over time with more efficient methods. Ranchers and farmers want to make scarce water stretch farther and irrigate more acres than flooding would allow. Land is being leveled right now to make
Pixabay, public domain
flooding go further. Sprinklers are increasingly used, so that less is diverted in the first place. Plain capitalism makes upgrades economical for the long-term. This isn’t an instant result, like voluntary conservation brings, but more water is available for instream and downstream uses every year.
These irrigation improvements are part of the reason that the State Legislators, Governors, and the State Water Resources Control Board have been careful about what laws to impose in the
Pixabay, public domain
upper watersheds. Many of the rights in the upper Sacramento River Basin are defined in Superior Court Decrees, and so are senior rights. However, the State has and still can make laws that reach back and change the rights in these old decrees. Many of you diverters on these streams have continually explained to politicians and bureaucrats that suddenly modifying or qualifying water rights can wipe out billions of dollars of agricultural production overnight.
So, yes, the fastest voluntary conservation will be had in the southern two-thirds of the state. And a lot of senior water right holders up where rain and snow fall, in the northern third of the State, may be experiencing the same or even greater percentage of involuntary reductions in diversions at the same time. “One size fits all” conservation may still not be equitable.
That’s enough on this for today. Let’s hope and pray that precipitation is higher than forecasts next winter!
of two ways:
rights, whether or not under state service…unless some other method is specified. The State subdivides water rights whether or not new owners of subdivided parcels notify the Department of Water Resources; the requirement falls on the State instead of the water right holders. Owners of land are notified at least once a year, since a charge for watermaster service is included on their tax bill.
In still other locations, none of the new homeowners wanted to use the water, either because there was a built-in municipal supply of pure or treated water, or because one or more private or community wells were drilled. The water right probably was not advertised as being available when the homes were built, and once the new owners were in, it became a lot more expensive to arrange pipelines across several neighbors’ properties to get a share of the surface water right.
