But What About MY Water Right? I Don’t Care About Someone Else’s.

Senior Rights
  Water Rights Certificate. Photo: Los Angeles Daily News

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

http://www.educationviews.org/law-protect-free-speech-top-churchman/
Free Speech Protest. Photo Credit: educationviews.org

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

Warrant Sign, Photo Credit: 24hourbrowardbailbonds.com
Warrant Sign, Photo Credit: 24hourbrowardbailbonds.com

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.

One of my earlier posts has a bullet list that can be memorized, or printed on a card for a wallet or purse:

  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.
  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. Post-1914 appropriative rights  issued by the State Water Resources Control 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(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

U.S. Constitution, Photo Credit: constitution.org
U.S. Constitution, Photo Credit: constitution.org

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.

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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.

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!

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Permits And Licenses – What Are The Water Rights When Land Is Subdivided?

 Back in December, I posted on the place of use for water rights defined in A018405_ewrims_lic_pg1_purpose_amtpermits and licenses from the Water Board:  

allwaterrights.com/2015/12/16/a-place-for-permits-and-licenses/

Permits and licenses have a place of use – sometimes it is easy to locate on the ground, and sometimes it is so-many-acres within a larger area.  I have never found the maps with the online, downloadable documents available at eWRIMS.  To get the maps, staff at the Water Board have to be contacted, and a copy of the map must be requested separately.

If you have, or some other diverter has a water right and the land has never subdivided since the time that the permit or license was issued, then a new owner will easily be able to see where the water right is diverted and applied.  What if you own land subdivided from a larger farm or ranch with a permitted or licensed right?  Do you have a water right at all?  I asked Paul Wells at the Water Board, and he explained:

“When land with a water right is subdivided, the new owners are responsible for contacting the State Water Board to inform us of the ownership change. Additional information on filing a change of ownership may be found on the following webpage:

http://www.waterboards.ca.gov/water_issues/programs/ewrims/ownership/

For administrative purposes, we have one primary contact for each water right. If the land is subdivided, the additional owners should contact our office to record that they are now co-owners under the right.

There is also the option of splitting the right into two or more rights. Each part would then be treated as an individual water right.”

That’s good news if you want to keep your part of the water right!  This comes with a big caution – the Water Board will consider whether a permitted or licensed right has been used within the last 5 years.  If not, it is possible the Board may consider the right to have expired…although it is not automatic.  Also, if one person has been paying the costs associated with the water right, both physical maintenance and Board fees, as well as filing all the paperwork (now online forms), that person may contest a subdivision of the water right.  The decision is in the hands of the Water Board.

This is much the same as a water right described in a Superior Court decree.  If Ex_2_Williamson_Parcel_Outline_on_DecreeMap_reducedthe right is areal and is a certain flow or volume on certain acreage, then it is usually proportioned by acreage for subdivided parcels.  There are exceptions – if the rights are apportioned differently by written agreement, then this may be accepted by a judge later if a case comes before the court.  If the resultant parcels are too small, then state watermaster areas will give the tiny rights to larger parcels.  For example, at the Department of Water Resources, the minimum right is 0.005 cfs, unless a tiny piece added to one or more other pieces sums to 0.005 cfs.

As always, it pays to do your research before bringing this up with Water Board staff or your neighbor.  On the one hand, you don’t want to waste your time and money only to find out your property was never part of the place of use described in a permit or license.  On the other hand, if your property should have a right, you want to make your claim clear and then approach your neighbor(s) politely with plenty of evidence.  Having a right doesn’t mean someone else won’t take action before the Water Board or in court, costing you time and money even if you are right.  So, prepare your paperwork, maps, photos, and calculations ahead of time.

I hope you got some of the rain we have had at our place the last couple of days.  That’s enough for now, have a good night everyone!

What Does A Water Rights Report Look Like?

Williamson_Parcel_Outline_on_DecreeMap_reducedIn December 2015, I told the story of the Williamsons, owners of property near Cow Creek in Shasta County.  They wanted to know what their water right is.  After talking with neighbors, they decided their best option was to work with Rights To Water Engineering.  In a short time, and at a relatively low cost, they had a report explaining their water right, how much of their property it covers, where the diversion is, and other important information from South Cow Creek Decree No. 38577.

https://allwaterrights.com/2015/12/24/how-to-divide-up-a-decreed-water-right-part-1/

https://allwaterrights.com/2015/12/24/how-to-divide-up-a-decreed-water-right-part-2/

So, what does their report look like?  Most of it is shown in the posts above, but the report is not.  Click here to see the whole 14-page Shawn_Profile_Barn_Light_Circlereport.  Now you know what to expect to see in your water rights report!

How is a person supposed to figure out his or her water right, certify a measurement device, measure the diverted flow, and report it to the Water Board?  That is what I do for a living: help you get rid of headaches, upset, and trouble, to comply with State law, make sure you know your water right, and measure and report your diversions.  The phone call is free to discuss your needs,  (530) 526-0134, and email is also free at RightsToWaterEng1@gmail.com.

Arnold and Eileen Williamson Report 20151224_01

Arnold and Eileen Memo 20151222_02

Arnold and Eileen Memo 20151222_03

Williamson_Parcel_Outline_on_Aerial_reduced

TractMgmtSheet_20151222_Arial_12_03_reduced

 

How Do I …. ? (Determine My Water Rights, Measure Flows, Report Flows , Etc.)

See the new “How Do I … ?” link on the left.  There are so many posts on this blog, it is getting harder to find stuff.  Click on the link, or right-click then “Open link in new tab”, and the big questions are linked to the appropriate blog posts.

Another way to search is, as always, Google.  For example, googling “allwaterrights measure weir” brings up the following results:

ggl_awr_meas_weir

Tehama County Association of Realtors Water Rights Talk

TCAR
Tehama County Association of Realtors Office. Photo Credit: google.com

The Tehama County Association of Realtors graciously had me come speak this morning.  I enjoy public speaking, including spreading the word on water rights and flow measurement.  The TCAOR are a friendly and intelligent bunch.

In an earlier post, I had briefly listed the types of water rights, with short descriptions.  That list came from a 10-page document that Watermaster Kevin Taylor and I developed for a Northern California Assessors continuing education presentation.  We had not been able to find a comprehensive list small enough to hand out, and with enough information to actually understand the subject.  I mentioned the 10-pager during my talk this morning, and since I did not have them printed I directed folks here.  DWR handed that document out freely, but we did not put it online – so here it is:

 What_Kinds_Of_Water_Rights_Are_There_NorCal Assessors_Prsnt_20131113.pdf

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