Solving Diverter's 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.
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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:
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?
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
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
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.
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.
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
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.
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
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
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!
“All politics is local”, said U.S. Representative and House Speaker Tip O’Neill and water issues are local too, when it comes down to you and me using water.
There are also good regional and local blogs and news aggregators so we don’t have to pick through short, syndicated news articles to get the straight scoop.
I have had calls asking, “Where do I get information on California water issues and water rights? Is there a website that covers it?” California is too big and there are thousands of local water issues, so no one site could even try to cover it! Hundreds of blogs and news sites are hosted by groups and associations, for every imaginable location and use of water.
We’ll just look at blogs and news covering Southern, Central, and Northern California. That’s a diverse look at water issues in this highly varied state, and these three sites can give us a lot of detail (“granular” information in politispeak) about local goings-on.
The Southern California Water Committee does not actually have a blog, but they have a great mix of blog posts and news articles that function as a typical blog. SCWC’s Mission is on their home page which you can see to the left: “The Southern California Water Committee addresses our state’s most critical water issues in order to ensure continued economic growth for California, and a secure, reliable water supply for its people”. There is an Issues page to quickly read summaries of main concerns to Southern Californians. It looks like this blog is growing quickly so check it often for updates.
Southern California is so big, in population and in the importance of water, that a
savvy reader has to look at the blog of the Metropolitan Water District of Southern California. The professional H2outlook Blog can take up some hours or days of your time getting educated on MET’s perspective…and it is worth your time!
You will have to help me when we get to the middle; I could not find a specifically “Central California” blog. The Bay Delta Blog seemed promising for covering the Delta, the focus of Central Valley issues. Unfortunately, the last post was in 2012.
Northern California Water Association: From their About page, The NCWA Mission is “to advance the economic, social, and environmental sustainability of the Sacramento Valley by enhancing and preserving its water rights, supplies, and water quality.” This site covers issues in the wetter part of the State, where most of the snow and rain fall. It’s a busy blog and, like the H2outlook Blog for the South, you can spend days here catching up on issues in the North. Of course the issues covered by NCWA extend well into the Central Valley, too.
These sources are very good and will give anyone an in-depth understanding of each region’s main water concerns. Please let me know of other in-depth blogs and I’ll list them here.
That’s enough for now and I wish the best for you in the use of your water rights.
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 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 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 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 aState 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.
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.