Can a water right be lost?

This is a question that comes up all over California, every day.  It usually comes in one Headgate on streamof two ways:

  1. I’m about to buy some land.  Will I have a water right if the previous owner did not use it for X years ?
  2. 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.

Diversion box to field“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 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:

Notice_proposed_revocation

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.

Diversion box from diversion

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.

Credit: Pixabay
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.

Advertisements

What Are The Surface Water Rights When Ag Land Subdivides?

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:

**********************************

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:

A018405_ewrims_lic_pg1_purpose_amtPermits And Licenses – What Are The Water Rights When Land Is Subdivided?  In summary, it is up to the water right holders to notify the Water Board that the land has subdivided and go from there.

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 New_Pine_Dec1stpg_1925 - Editedrights, 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
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.

Ex_2_Williamson_Parcel_Outline_on_DecreeMap_reducedIn 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
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! Can’t They Be Easier?

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:

  1. 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
  2. Rancho rights granted by the government of Spain or Mexico, prior to Statehood in 1850
  3. Pueblo rights, the one belonging to Los Angeles being famous
  4. 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
  5. Appropriative post-1914, issued by the State Water Resources Control Board (Water Board)
  6. Adjudicated, or decreed, from Federal District or State Superior Court
  7. Groundwater from a well, similar to surface water riparian but for the overlying land
  8. Prescriptive, which isn’t a definite right until decreed by a court
  9. 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.

Update – Worried about SB 88? That’s the problem I solve for you!

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 Engineering can 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:

SB88_Art3_Clip

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)
SWRCB Measurement and Recording Requirements for 2017 (diverters exempted where Watermaster reports)

What Happens To Surface Water Rights When Farms And Ranches Subdivide?

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:

A018405_ewrims_lic_pg1_purpose_amtPermits And Licenses – What Are The Water Rights When Land Is Subdivided?  In summary, it is up to the water right holders to notify the Water Board that the land has subdivided and go from there.

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 New_Pine_Dec1stpg_1925 - Editedrights, 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
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.

Ex_2_Williamson_Parcel_Outline_on_DecreeMap_reducedIn 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
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.

Finally, Moving On San Joaquin V. GW Recharge! Good Thing – Board Wants More Sac. R. Fish Flows

Delta Tunnel Alternative: Embracing Flooding for Water Supply

At last!  The Department of Water Resources (DWR) is seriously considering

Tulare Basin, Photo Credit: usgs.gov
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.

The recent news article on this quotes David Gutierrez of DWR as saying, “That will not solve everything. There will be no silver bullet,” said David Gutierrez, executive manager of the Sustainable Groundwater Management Program at the California Department of Water Resources. “But it’s a combination of these ideas together that will help us do better than we’ve been doing in the past.”  With due respect to Mr. Gutierrez, this is bureaucrat-speak for “We’ll add this in if the Legislature will get behind Delta Tunnels and above-ground storage first, and also stabilize DWR’s General Fund budget.”  As a former bureaucrat I get it; if DWR divides its focus, that’ll let anti-tunnels interests more easily short-circuit tunnels.  Come on though, bureaucrats, get behind some wins and get momentum going!  To be fair, state agencies work for the Governor and can’t lobby…but they do have some latitude to do pilot projects and steer some discretionary funds where they will do good.

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!

California eyes more Sacramento River water for fish, less for farms, cities

The article in the Sacramento Bee says in part: “Water board
Chairwoman Felicia Marcus cautioned that Wednesday’s staff report is merely a draft. She said her agency wants various groups to submit comments before it makes a decision, sometime next year. She said the board will take into account human needs before adopting any comprehensive plan.
swrcb_web_page-edited

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.

Quoting again from the article:  The water board first floated the concept of dedicating more of the Sacramento and San Joaquin watersheds to the environment in 2010, triggering feverish warnings from a coalition of water agencies that up to 1.7 million acres of farmland would be idled as a result. With the proposals now taking on greater urgency, water users are responding with renewed alarm.

It’s both predictable and troublesome,’ said Tim Quinn of the Association of California Water Agencies, which represents urban and rural districts. He argued that the state should also examine other measures to help fish, such as habitat restoration.

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.

Table Of Contents For All Water Rights!

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 totable_of_contents_page-edited 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 how_do_i_page-editedthat 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!

Save