Solving Diverters' Headaches To Provide Peace Of Mind And Help Stay Out Of Trouble
Category: Types of Rights
What type of water right do you have? Is it a senior right? Is it a higher or lower priority? If you have a permit or license, what is your right compared to other permitted and licensed users? Knowing the answers to these questions assures you that your water diversion is protected in the future.
SB 88 requires diverters to measure diverted water flow and/or volume, then report the measurements. For small to medium-sized diversions and reservoirs, there is a often transducer measuring and recording pressure. The pressure data has to be converted to depth and flow, or depth and volume. Data may be hourly, daily, weekly, or monthly. Whatever the frequency, the Water Board wants data files uploaded with annual Reports and Supplemental Statements.
Where’s the manual for how to do this, for any of several data loggers, and for meters, weirs, flumes, and orifices, and flumes? It exists in pieces and parts. Each data logger manufacturer has a manual for each product. Sometimes products are similar, and sometimes very different, as are the manuals. The long-existing measuring devices, weirs, flumes, and orifices, are described and general measurement instructions listed in the U.S. Bureau of Reclamation Water Measurement Manual.
When it comes right down to it, a person has to be a “data-head” to enjoy collecting the data, and going through all of it to find bad results, missing data, and odd trends. Then stage and flow have to be calculated and checked against periodic readings taken during visits to the reservoir or stream. Data have to be listed in a format to upload with the Report or Supplemental Statement to the Water Board, and summed monthly to fill out the online form.
If you enjoy educating yourself and taking on new tasks, then you can be a data-head. If not, then you’ll need to have an employee do it, or more likely hire an expert.
Who are the experts? There are engineering firms, manufacturers, vendors and others who can download data for you. It still comes down to the person helping you That person who does the work has to have done data reduction, calculations, checking, and quality control in the past.
Make sure you get help from someone who knows data inside and out! If the Water Board has any questions, your data-head can explain and defend every bit of it for you. He or she will already know the answers to any questions that come up.
Have you ever used an old-style complaint box? It made us feel better to write out a grievance, and then put it in the special box for that purpose. Often, there would be no response, so nobody knew if the complaint was read, or ignored, or some action taken but not communicated.
Now we air criticisms and accusations with much greater speed and efficiency. It’s called Email, generally directed to one or a few poeple, or the very public Twitter, FaceBook, Yelp, Foursquare, or 500 other online venues. This often isn’t better but it does get results! A thousand “Yeah me too”s, ten thousand “You’re an idiot”s, and a hundred thousand ugly troll comments. Have you successfully complained online and had a positive result? You’re in a small minority.
What if another water diverter on your ditch is taking all the water, or someone files a right for the water you have lawfully used for years, or the new neighbor bullies you and 4 others into not taking your water because he says he’ll file a lawsuit? Fortunately the Water Board has a way to complain about water rights. If you Google “Water Board Complaints”, the following page is usually the first result you’ll get:
Now what? You need to click the “CalEPAEnvironmental Complaint website” link, and then you’ll see the page to the right:
Click on the “Water” radio button, and click “Complaint Details at the bottom of the page.
This will take you to a series of web pages, shown here as the very long page shown on the left. The pages prompt for information, so enter all the details entered. What if you don’t know something? Put in the best information you have and move on to the next section.
What if you don’t want anyone to know who complained? You can file it anonymously. However, you can imagine that putting your John Henry on there would get a better response from the Water Board folks.
Once you do that, and hit “Submit”, you’re done. A web page will pop up with some information, and you’ll get a confirmation email:
Wonderful, your complaint is in the system! How long will it take for you to get a call or an email from someone at the Water Board? If your protest is about a large water right, in the Central Valley, and is well-documented, you may hear back in a month or two. What if your water right is small, you’re in Del Norte County, and you don’t have all the details? Well…it might be many months, and possibly never. Keep in mind, most Water Board staff have five times the workload than any of them can possibly do. Supervisors and staff have to pick and choose what they can work on that might result in an action, and which will have support from their supervisor or manager.
How can you best ensure that your complaint is addressed, and you get contacted by Water Board personnel? Document, document, document. Get right to the point of what you want the State employee to do. Speak bureaucrat. That’s a language similar to English, but which is much better understood by a state employee than standard English. I know, because I had to speak bureaucrat for 30 years! Now I speak bureaucrat to help solve diverters’ headaches to provide peace of mind, and help stay out of trouble.
Do you have a riparian water right? If your property borders or crosses a natural stream, then you probably do. If you are unsure, then read the best explanation I have seen, in plain language, in this short document:
A property split, if it results in a subdivided parcel that no longer borders the stream.
A Superior Court Decree, while it does not take away riparian water rights, can restrict how much and when that riparian water right can be used during irrigation season.
A stream can move through the process of erosion, so that a property no longer touches a stream. How much movement is enough? “It depends.” If it is gradual, and the diversion remains active, then the riparian water right is probably still secure. If a stream suddenly moves, so that it cuts through the property on the other side, and now there is a piece of that property between your parcel and the stream, this avulsion could very well remove a riparian water right. The water right would only be definitely lost through some action of the Water Board, state Superior Court, or federal court.
A person or agency can take a piece of property along the stream. A person might try and succeed in getting part of your property through adverse possession. So, always pay your taxes, and notify anyone who leases or regularly accesses your property that you retain full ownership. An agency might take it to build a levee, or create a corridor of riparian habitat. In either case, your parcel would be severed from the stream.
Put it in your property deed. How should that be done?
The best way would be to get the help of an experienced water rights attorney who has written riparian water right provisions for property. There are very few of these attorneys and they can be hard to find.
Put in plain English what you want to do. What might you include?
State that the property has a riparian water right, name the stream, and describe the diversion point, place of use, and purpose of use. Include an Assessor Parcel Map of your parcel(s). If possible, include photographs.
State that this riparian water right is retained even if the stream moves, gradually or suddenly, away from your parcel.
State that it is your intent, and it will be the intent of you, your heirs, and any other purchaser, to retain the riparian water rights for any subdivided parcel, whether adjacent to the stream or now.
If you have a parcel that was severed in the past, but that parcel has used the
same diversion point continuously from the time before the subdivision, state in your deed that the intent at the time of the subdivision was to retain riparian water rights for your parcel, and that you have continued to divert under riparian right of claim, and that you do have a riparian water right.
Back in 2005, Arnold and Eileen Williamson bought property near South Cow Creek in Shasta County. They live in San Bernardino and plan to retire early, and build a new house on their land. The parcel is part of an old ranch just off Highway 44.
The Williamsons paid $220,000 for the 3.55 acre lot. That seemed high compared to similar parcels in the area, but they were assured the land has adjudicated water rights from South Cow Creek.
Arnold and Eileen brought their travel trailer to live on the land while they are building a new house. Their savings account is in good shape so they are going to build a nice 2,200 square foot, single story ranch house with a garage and a shop. They talked to a well driller 10 years ago and he assured them it would be easy to put in a well, for a cost of around $18,000.
When Arnold and Eileen went to get a permit to drilla well, they ran into unexpected problems. Parcels on either side have their septic systems close to the common property lines, so their possible well locations are few. Maybe a bigger issue is the passage of the Sustainable Groundwater Management Act in 2014. Will their pumping rate be limited, and will their well-drilling permit application get held up?
Now the Williamsons are checking into their surface water right. Is it enough for some pasture for horses and a few cows, in addition to the house and garden? The Turings who live on the east side say there are no water rights. The Poulans, to the west, say they have lived here for 6 years and they have never had water – they think the water right was bought off the place, or lost because of non-use. Now the Williamsons are upset and headed toward just plain mad. The real estate agent said they had rights, and didn’t the title companies insure it?? After a few frantic calls, they found out that title companies don’t insure water rights. But, their realtor gave them the number of some folks over on the north side of the highway, and they have a “decree map”. Arnold and Eileen head over to the Winters’ place to look over the maps. Brad and Jenny Winters even have a web address where the decree and maps can be downloaded: https://allwaterrights.com/some-decrees-maps/ The Water Board’s web page has the decree, but no maps: http://www.waterboards.ca.gov/waterrights/board_decisions/adopted_orders/judgments/docs/cowcreek_jd.pdf.
It turns out that the Cow Creek adjudication does not have maps, but an engineering report done a few years before the decree was issued does have the maps. Brad and Jenny have that report, too, so they have Sheets 1 through 5 showing the “Diversions And Irrigated Lands” on Cow Creek. Besides that, they have the link to where they can get the South Cow Creek decree, and a link to a blog that has the maps not on the Water Board’s web site: https://allwaterrights.com/some-decrees-maps/ Sheet 5 covers the area including the Winters and Williamsonplaces. Sheet 5 has a lot of “irrigated lands”according to the legend – the green areas.
By looking at the maps, and their Assessor Parcel Map they have in their escrow package, it sure looks like their property is completely within the green area. Great! Now, how do they figure out if they actually have a water right?
Arnold and Eileen wonder, can they figure this out themselves? Brad and Jenny tell them, they sure can, and there is a document online that explains how to do it: https://water.ca.gov/-/media/DWR-Website/Web-Pages/Programs/All-Programs/Watermaster-Services/Files/Water-Rights-Reapportionment-Method.pdf. They take a look at it and see that, yes, the document fully explains the process, but it requires having either AutoCAD or GIS software. Also, it will take deep familiarity with the decree – and it is starting to look like a 3-day job just to understand it enough for their parcel! Arnold and Eileen don’t have the software or experience, so they decide it’s not worth their time to learn this…and they are not sure if they can do it right.
After asking around, Arnold and Eileen figure out they will need to see anattorney. They call around and find out there are a couple of engineering companies that can see them faster, and they might cost less. They picked Rights To Water Engineering to help figure out their water rights. Within a couple of weeks, they have a nice report in their hands and answers to their questions. So what did they find out? The map below is one of several from the report they got from the engineer, showing their property boundary on the 1965 decree map of irrigated lands:
The report cost $1,500. The engineer warns them that if it gets contentious and they can’t work out access to the water with their neighbors, they may end up having to get legal help. He recommends a couple of local water rights attorneys if it comes to that – there are some good lawyers who specialize in in water rights. For now, though, they have documentation they can discuss with their neighbors to work on getting their water right to their property.
Their property is on land that back in 1968 belonged to Howard and Gladys Leggett. It has an adjudicated second priority water right for irrigation equal to 0.063 cubic feet per second, or 28.5 gallons per minute, 24 hours a day, 7 days a week, from March through October. This 2nd priority right is less than the second and third priorities on the upper creek and tributaries, but it is the highest irrigation priority on the lower creek. Back when the property was flooded, that was usually enough to flood irrigate their entire lot to grow pasture or hay.That’s great news!
As natural flows drop during the summer that amount is reduced and everyone with a lower creek second priority has to reduce their diversion by the same percentage. In normal and wet years they could keep their pasture, hay, or whatever else they plant, irrigated for most or all of the irrigation season. And whether or not they use the water, the right does stay with the land and protect their property value; there is no provision for the expiration of water rights in the decree (the same as for nearly all surface water rights decrees).
What else was in their report? There was a cover letter, and next some excerpts from the decree. Schedule 1 lists the places of use for all the original owners. The Leggetts’ description takes up most of page 60; the Williamson’s property is on the 69.8 acres listed in the second paragraph for the Leggett land:
Schedule 2 lists all the points of diversion, whether gravity diversions or pumps. The Leggett property actually could get water from two diversions, a pump from the creek, and a proposed second, movable diversion on the creek. That’s convenient – per the decree they could already divert their water from someone else’s existing diversion, or pump their water from Diversion 95, or they could get it from anywhere they can get agreement from the landowner!
Schedule 6 lists the water rights for Lower Cow Creek – other schedules have rights for the upper creek and tributaries. This is interesting: there are four priorities of rights and this part of the Leggetts’ property has
a 1st and a 2nd priority right. What does that mean exactly? The decree explains that 1st priority rights are domestic – houses and gardens. It’s a very small right and it is not clear whether or how it should be divided up among the all the subdivided parcels that used to be the Leggett ranch. The engineer noted it in the cover letter.
How was the water right calculated for the Williamsons? Using a geographic information system, or GIS, the engineer used his training and years of experience to precisely overlay the Assessor Parcel Map on the decree map. Then he measured the acreage for both, and prorated the water right by area. The following screenshots of the Excel spreadsheet shows these calculations.
Time to fess up: this was a water right subdivision of a fictitious, made-up parcel of land, and the Williamsons don’t actually own it. However, this story is one that happens every day, when a landowner asks “How much is my water right, really? Can I divert for hay, stock, pasture, wildlife habitat, crops not mentioned in the decree, an orchard, ……… ?” Having information before arguing with neighbors, seeing attorneys, sending legal letters, and going to court, can help smart people who generally have good relationships work out happy and agreeable solutions. The Williamsons were smart and talked politely with their neighbors, the Turings and Poulens and Winters’s. Now they have a good basis to live peacefully in their neighborhood for many years, and Arnold can borrow Charlie’s lawnmower until he gets his own.
An oldie but still the best summary of riparian rights that can fit on both sides of an 8-1/2″ x 11″ sheet of paper:
Riparian Rules by Chuck Rich, State Water Resources Control Board, 2007
GENERAL RULES GOVERNING THE EXISTENCE OF AND USE OF WATER PURSUANT TO RIPARIAN CLAIMS OF RIGHT
A riparian right exists by reason of ownership of land abutting upon a stream or body of water and affords no basis of right to use water upon nonriparian land.
A parcel of land generally loses its riparian right when severed from the stream channel via a parcel split (i.e., “physical severance”) unless the right is specifically reserved for the severed parcel in the deed of transfer or other conveyance document. However, the California Supreme Court has held that where a physical severance has previously taken place, if the severed tract was receiving water from the creek at the same time the conveyance created the severance, that fact can be used in court to argue that the grantor and grantee did not intend any severance of riparian rights notwithstanding the physical severance, and the riparian right might be preserved as a result – if the court so decides. The riparian right also may be lost when transferred apart from the land by grant, contract, or condemnation. Once lost or severed, the riparian right can NEVER be restored.
Riparian water right holders may only divert a share of the “natural streamflow” of water in the stream. “Natural streamflow” is the flow that occurs in a watercourse due to accretions from rainfall, snowmelt, springs and rising groundwater. To the extent that flow in its natural state reaches or flows through their property, riparian right holders have a proportional right, based on need, to the use of the natural flow.
A riparian right does not allow diversion of water that is foreign to the stream source. Water that is: a) imported from another watershed; b) stored and subsequently released later in time into the stream system from upstream dams; or c) irrigation runoff generated from the application of percolating groundwater applied to upstream lands; is not available for diversion under a riparian claim of right.
Water diverted under claim of riparian right may only be used on the parcel of land that abuts the stream – – unless the severed parcel’s riparian status has been somehow retained (see #2 above), and then only on that portion of the parcel that drains back into that portion of the stream from which the water was originally diverted.
In order to divert water under claim of riparian right, the diverter must use the water on riparian land but need not own the land at the point of diversion. That is, the diversion may be made at a point upstream (or downstream) from the land being served so long as permission is granted to use that point of diversion and intervening land owners between the point of diversion and place of use are not adversely affected by such practice. However, water cannot be diverted upstream or downstream under a riparian claim of right if this water would not have reached the diverter’s land in the “natural” state of affairs. (In other words, the land is only riparian to the stream when the stream, in the natural state, would actually reach or touch the parcel in question.)
Riparian rights are not lost by nonuse of the water.
“Seasonal storage” of water cannot be accomplished under a riparian claim of right. “Seasonal storage” is generally defined as the collection of water during a period of excess flow for use during a period of deficient flow. However, water may be retained for strictly “regulatory” purposes. “Regulatory storage” of water means the direct diversion of water to a tank or reservoir in order that the water may be put to use shortly thereafter at a rate larger than the rate at which it could have been diverted continuously from its source. Regulatory ponds should generally be drained at the end of the season of use (e.g., irrigation season).
If there is insufficient water for the reasonable, beneficial use requirements of all riparian owners, they must share the available supply. Apportionment is governed by various factors, including each owner’s reasonable requirements and uses. In the absence of mutual agreement, recourse to a determination in the Superior Court may be necessary.
The riparian diverter is subject to the doctrine of reasonable use, which limits the use of water to that quantity reasonably required for beneficial purposes. The method of diversion and conveyance must also be reasonable and non-wasteful.
A diverter who possesses a valid riparian claim of right does NOT need to obtain a permit from the State Water Resources Control Board for the act of diverting water. However, any alteration made to a natural channel in order to divert the water will probably require acquisition of a “streambed alteration agreement” from the Department of Fish and Game and may require a Section 404 Permit from the Army Corps of Engineers or a waste discharge requirement from the appropriate Regional Water Quality Control Board. Compliance is also required with any other local, state, or federal requirements regarding construction and operation of the diversion facilities.
Water Code section 5100, et seq. requires that a “Statement of Water Diversion and Use” be filed with the Division for any diversion under riparian right if no other entity reports this use. As of 2007, there is no charge to file this document and forms are available upon request from the Division of 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 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.
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:
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.
This is updated from a previous post, which was an example for a stream with adjudicated water rights. However, it also works for any stream where there are water rights with legally defined diversion quantities, if all the diverters have headgates in good condition and/or measurement devices such as weirs, flumes, and pipe meters.
Is John Stealing Water?? John Casey has a cattle ranch near Adin, where he grows pasture and hay to raise about 70 Angus steers. His ranch is 240 acres with lower irrigated land and forest on the higher part. He has an a licensed water right of 2.00 cubic feet per second (cfs) from Preacher Creek, to irrigate 80 acres, from April 1 to November 1.
John’s downstream neighbors claim he steals water. He says he can show that he takes only 2 cfs, or less when the flow drops down in the summer. Can he prove it?
As we can see, he has a square headgate at the head of his ditch. It is 2.0′ wide, and can open up to 1.5′ high. Right now, John says he is diverting 1.05 cfs. His evidence is that his gate is open 0.15′, the water is 0.57′ deep on the upstream side, and the water is 0.20′ deep on the downstream side. Is that enough to check what he says?
The box in which the gate sits has smooth walls, and the gate closes flush with the bottom when John is not diverting. The water continues in a straight path from upstream to downstream. That means the weir has “suppressed” sides.
This is in contrast with, for example, a hole cut in the middle of a 2″ x 12″ weir board. The water on the sides has to make the turn to go straight through, so the hole in the board is an example of a “contracted” orifice.
Let’s look at the tables for orifices in the back of the Water Measurement Manual. Table A9-3 is for submerged, suppressed weirs.
We can’t see the downstream side of the weir, but the water is above the bottom of the edge of the gate, so it is submerged rather than free-flowing.
This table has flows calculated for a minimum area of 2.0 square feet (sq. ft.). However, the area of the opening at John’s headgate is 2.0′ wide x 0.15′ high, or 0.30 sq. ft. Fortunately, the equation, Q=0.70A(2g Δh)^0.5, is listed right at the top of the table. We can calculate the flow using that. Q is the flow in cfs, A is the area of the orifice hole, g = the acceleration due to gravity, or 32.2 ft/second^2 (feet per second squared), and Δh is the difference between the upstream and downstream water depth.
So the flow Q = 0.70 x (2.0′ x 0.30′) x (2 x 32.2 x 0.37′)^0.5 = 1.03 cfs. So far so good – John is taking 52%, or just over half of his right when 100 percent of flows are available. But, how much flow is actually available right now?
Let’s use the “sum of the boxes” method. Instead of measuring the amount of water in Preacher Creek at the top, before any diversions, and then estimating how much flow is being lost to evaporation, transpiration, and infiltration, and then estimating how much flow is subsurface above John Casey’s ranch and “pops up” out of the ground below, we’ll look at what each diversion amount is, plus the amount still in the creek after the last diversion. This is very useful because none of the instream losses have to be estimated – we just add the diversions and flow still in the creek, and that amount IS the available supply.
Water Board Permits and Licenses are usually not interrelated – they specify water rights without considering the other water rights on the stream. This is different from adjudicated streams, whether done by the Water Board or the Department of Water Resources. Some Superior Court judges in past decades were pretty smart and actually ordered that available flows be calculated by the sum of the boxes:
The paragraph above, from the Susan River Decree, defines available water supply as what is being diverted, plus the flow passing the last diversion.
There are 4 diversions on Preacher Creek, and here are the amounts being diverted:
Diversion 1 (John Casey) 1.03 cfs of a 1.60 cfs water right, 52% of his total right
Diversion 2 (Amy Hoss) 1.67 cfs of a 3.80 cfs water right, 44% of her total right
Diversion 3 (Mark and Cindy Sample) 0.55 cfs of a 0.88 cfs water right, 62% of their total right
Diversion 4 (Quint and Marcie Minks) 1.32 cfs of a 2.50 cfs water right, 53% of his total right
Flow still in the creek past the Minks Diverison – Quint estimates about 0.7 cfs
The total diversion-plus-bypass flow is about 5.3 cfs. The total rights on the creek are 9.48 cfs. Therefore, the total available flow = 5.3 / 9.48 = 56%.
So, John is right, he is not stealing water! He is taking 52% of his water right, when he could be taking 56% according to the “sum of the boxes” method. Not only that, but Amy could take more, the Samples should reduce their diversion, and the Minks’s could take a tad more. Well, that’s theoretical – Quint and Marcie Minks probably cannot seal up their dam completely, so there may be a little bit less flow actually available for diversion.
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
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.
Do you have a water right? Then that is the one you care about. General information is interesting, but not too useful or relevant. When it comes down to it, your water right is the one you have to understand eight ways from
Sunday, and your water right is the one you have to defend.
But look at rights from another angle. What rights do we as citizens of the United States all have, that we all really need to know? Every U.S. citizen wants to be able to say what he wants, go to church or not, and attend political and protest meetings. Where does it say that the federal government cannot prohibit or compel certain speech, church participation, and attend political meetings?
Of course you know that these rights are protected by the Bill of Rights, the first 10 amendments to the U.S. Constitution. Most of us learned this before we got
to high school. 482 short words protect your and my freedom of religion, speech, press, assembly, and petition; right to keep and bear arms; right not to be forced to quarter soldiers; freedom from unreasonable searches and seizures; right to due process of law, freedom from self-incrimination, freedom from being tried twice for the same allegation; rights of accused persons, (speedy and public trial); right of trial by jury in civil cases; freedom from excessive bail, cruel and unusual punishments; other rights of the people; powers reserved to the states.
Imagine having your house searched and not knowing what rights protect you. How could you demand that soldiers do not forcibly enter your home, without
any knowledge of the 3rd Amendment? Or, imagine being arrested during a traffic stop because you refused to let police search your vehicle. What if you didn’t know anything about the 4th Amendment, which protects you against unreasonable searches and seizures? How quickly life, liberty, and property can be lost when the accused does not know his or her constitutional rights!
How does this relate to water rights? Who knows, you or one of your family might buy land with a different kind of water right. If you have a summary understanding of water rights, you’ll be in a lot better place to know what the right is worth, how much water you might really get, and when. What if an attorney or a government agency tells you that your property lost its water right – how could you even know you have an argument without some basic understanding? Even when landowners get legal help, it can be pretty expensive…where knowing in advance could save hassle, time, and money.
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.
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.
Post-1914 appropriative rights issued by the State Water Resources Control 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(s).
Please leave a comment, correction, complaint, humor, or other message below:
For comparison purposes, here is the United States Bill Of Rights, conveniently available on the home page of the Bill Of Rights Institute:
Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the
government for a redress of grievances.
Amendment II A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
Amendment III No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Amendment VII In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.