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.
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!
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:
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 abig 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 the 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!
In 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.
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.
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.
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:
The results we get are all the names with the word “Metropolitan” in them, and first on the list are the Metropolitan Water District of Southern California:
We’ll scroll down the page until we get to Application Number A006406. By the way, if you have a Permit or License, or you are looking for one, that Application Number is important. It is the unique identifier for these documents, sort of like the Assessors Parcel Number is the true unique identifier for your property for tax purposes. A006406 is for an Appropriative Permit for with a face value of 1,085,950 acre-feet. If we click on the number A006406 in the left column, we get this summary:
The summary doesn’t have that much more useful information – what we really want to do is go look at the original document. Click on the “View Permit” text in the upper left-hand corner. Now you get to see a scan of the permit. You can see that document by clicking here: a006406 The first page of the permit is shown here. And this is the information you want to see for your application, permit, or license, the actual face value, purpose, place of use, and so on.
In the same way, we can view and download Statements Of Use (SOU). Clicking through the Summary is a little different – we scroll down the page and then pick the statement for the year we want. Here is the summary for SOUs for one of the City of Santa Barbara’s Permits:
Clicking on the year 2015 brings up the following report, showing that under this Permit, Santa Barbara diverted a total of 287.8 acre-feet last year:
That’s how we use eWRIMS to search for information on water rights and Statements Of Use. Remember, many thousands of adjudicated and riparian rights, and some pre-1914 rights, are not in the database. What do we do if we think there is a water right, and we’re not sure where the information is?
Start with eWRIMS, and call the Water Board if the database answer is inconclusive. You may have to call several times, these folks are way too busy.
Call the Watermaster if it is an adjudicated water right under watermaster service. Even if the right is under a decree with no Watermaster, whoever you call probably has a good idea of who to call next to find out. Google the county and name of the stream to see if one of the first five or so results brings up a Watermaster’s name or phone number.
Call the Clerk of the Superior Court in the county where the water right is. Ask if they have a searchable index of some kind that would give you a Case Number for an adjudication. Some counties even have old water rights books where you can search for a pre-1914 recording of a right.
In Part 1 of this discussion, we looked at the different types of water rights included in the Water Board’s eWRIMS water rights search database. Now we’ll talk about how to narrow down your search to find just the water rights of interest. The majority of questions people have are about their own water rights. How can you find out what eWRIMS has about your water right?
If you pick the eWRIMS Database System link, and hit the “Accept” button at the bottom of the next page, you’ll arrive at at the Water Rights Records Search page. This looks like a data entry form, and allows you to search by water right type, status, ID, county, etc., and most relevant for finding your own, by Primary Owner. Whoops! I sure thought it was – it is now disabled. Maybe that’s temporary, but even a couple of weeks ago I was able to put in “California”, for example, and find the rights held by State agencies. As a matter of fact, none of the searches I am trying right now even list any results in the “Holder Name column.
UPDATE: Search by Primary Owner is working again as of June 29, 2016 at 8:30 A.M. Thanks, eWRIMS folks for restoring it!
Next, try your County,Source (River name or Source Name), Entity Type, and any other information that you know. This will give you a list of results. For example, entering Trinity for County and Hayfork Creek for Source yields 31 results. Without the “Holder Name” listed it is tough to tell which one is yours…unless you also know one of your IDs. If that functionality is restored that it makes it easy. One CAVEAT – if you or the previous owner have not updated the current owner (as the Board requires), then the person’s name will be some previous owner. You’ll likely recognize it.
If “you can’t get there from here”, then you can search by map, in the eWRIMS Web Mapping Application (GIS). The map starts by showing all of California and you zoom in to your area. When you zoom in far enough, you’ll see rectangular labels of various colors start to appear. You can click on these to see the individual Application, Permit, License, or Statement of Use. The screenshot above shows part of Hayfork Creek in Trinity County.
If you have not used eWRIMS, try it out for your and your neighbors’ water rights. Remember, most riparian and nearly all adjudicated water rights will NOT show up here, but pre-1914, post-1914, some riparian, and some other rights will. Next time we’ll talk about some of the information you can find on forms for the various rights and statements.
The AllWaterRights Blog is Moving!http://www.shawnpike.com is my permanent site, and as soon as I get the formatting done all the new posts will be over there.
In the meantime, how does someone search for water rights in California? It used to be an onerous task – and today it is only half-onerous. 🙂 Actually the Water Board gets more information every day and puts it into the Electronic Water Rights Information Management System – eWRIMS for short (pronounced ee-rims). This screenshot shows the two important links. The first is to the database, which gives text tables of results and links to some form-entered documents, and some scanned documents. The second link goes to the geographic information system (GIS), which consists of mapped points linked to the database, on top of reference maps.
What can you find here? In short, nearly all the post-1914 appropriative Water Rights Applications, Permits, and Licenses can be found here. Most of the pre-1914 appropriative, and an increasing number of riparian water rights can be found here. The 2009 water laws that increased reporting requirements and greatly increased penalties, moved most water right holders who had not been filing, to get on the train and avoid the pain. If you search with no parameters, then the database returns a listing of all records, over 52,000 right now.
What’s missing? Nearly all adjudicated water rights are not found on eWRIMS. There are thousands of rights defined in numerous Superior Court Decrees, that are not found in the database. Statements of Use are filed for these rights, but not in a form that is easy to put into eWRIMS. Where could you find these? We’ll cover that in future posts.
http://www.shawnpike.com is up and running, right now with the brief front page. More to come soon! A good night to all.
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.
This is a review of what kinds of water rights we have in California, discussed here some months back in Water Rights – Why Do They Exist? Which Kinds Are There? As a water right holder, you are really interested in what kind of right you have. Knowing what other water rights are is sort of academic, interesting but not necessary for day-to-day operations and the success of your farming or ranching business.
Even so, when the water supply is scarce you need to know what your neighbors’ water rights are both upstream and downstream of you. We’re putting aside the issue of someone stealing water, and conflicts over diversion amounts. Deferring the possibility of arguments, do they have a higher priority or seniority, compared to your water right? Do other diverters have riparian rights, which would be senior to an appropriative water right? The previous post in this blog is a good way to understand various surface water rights. It’s always helpful to read another description in someone else’s words , and here is a really good list from Sandy Denn at the Family Water Alliance:http://familywateralliance.com/water-rights-revisited/
The article has a brief and very handy description of beneficial use that is easy to remember:
“STATE CODE AND BENEFICIAL USE The California water code was adopted in 1914. Since that time, water rights have evolved through many and varied decisions of case law and State Water Resources Control Board (SWRCB) actions which can carry the weight of law. A water right in California is a property right. For certain purposes, the right is treated as a real property right, yet for other purposes, it is purely usufructuary (i.e., a right to use). To preserve the right to use water, a beneficial use must be shown. Article X Section 2 of the California Constitution declares that the general welfare of the state requires that its water resources be put to beneficial use. In 1928, the voters of California approved a Constitutional amendment mandating that all waters in the state be “put to beneficial use to the fullest extent to which they are capable and that waste or unreasonable use of water be prevented…”
The kind and quantity of water right you have also affects the value of your land. Sometimes, land with a good water right can be worth more than double the price per acre of an adjacent parcel with no surface water right. In other locations, groundwater is used by most irrigators and surface water rights have less impact on the land value. You may be interested in selling your property or buying someone else’s, so where can you find good information on how to value your water right? This is what appraisers do, and the Northern California Chapter of the Appraisal Institute has a very good presentation on what goes into valuation: http://www.norcal-ai.org/amass/doc-get-pub/article/252/Water_Rights_021010.pdf
This slide show also includes a discussion of highest and best use. Water used for irrigation usually does not have to be used for the highest possible value or income, but it can be profitable to know what value the water could have. This information is also good to have in your pocket if you face the issue of some or all of the land being taken by eminent domain, or by a mandated change of use , such as taking by the state or federal government for environmental benefit. Here is one very useful quote from the presentation:
Highest Highest and Best Use Analysis Analysis If the value of the water right on the open market is worth more than its contributing value to the larger parcel under its existi ng use, then maximum value is attained by selling the water right separately. Example ‐ sell the appropriative water right for a beneficial use and convert the land to dry land grazing
If you have any questions or comments, please comment here or contact me at RightsToWaterEng1@gmail.com. It’s sprinkling here right now, and I hope that 2016 is a good water year for you.