Heavy Snow & Rain For Valentine’s Day

Everyone knows we’re getting snow and rain well above average for today!  Hopefully folks can take a day to celebrate before Valentine’s Day.  After this we may be worried about floods; precipitation will be appreciated when the irrigation season starts.

Snow, compared to the April 1 average:

  • South:  98 percent
  • Central:  100 percent
  • North:  88 percent

Rainfall, compared to the average amount for today ( Feb. 13):

  • South:  119 percent
  • Central:  118 percent
  • North:  106 percent

 

 

How to Divide Up a Decreed 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.Williamson_Overview

When Arnold and Eileen went to get a permit to drill a 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.Williamsons_and_neighbors  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.

SCow_Sheet_5_screenshot

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 Williamson places.  Sheet 5 has a lot of “irrigated lands”Leggett_Focus_Area 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.

AP_Map_59-98_croppedAfter asking around, Arnold and Eileen figure out they will need to see an attorney.  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:Ex_2_Williamson_Parcel_Outline_on_DecreeMap_reduced

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:

SCow_Sched1_Leggett_Places_Of_Use

 

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!SCow_Sched2_Leggett_Points_Of_Diversion

SCow_Sched2_Leggett_Points_Of_Diversion_2

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

SCow_Sched6_LowerSCC_Leggett_Allots_second_page

 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.

TractMgmtSheet_20151222_Arial_12_01_reduced

TractMgmtSheet_20151222_Arial_12_02_reduced

TractMgmtSheet_20151222_Arial_12_03_reduced

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.

Ex_2_Williamson_Parcel_Outline_on_Aerial_reduced

Good News Jan. 18, 2019 – Rainfall, Snowpack Up To Average

Here’s some good news!  Rainfall and snowpack are up to average as of January 18, 2019.  The plots below are from https://cdec.water.ca.gov/  –>  Precipitation  –>  Tulare / San Joaquin / Northern Sierra Plots, and –> Snow –> Daily Regional Snowpack Plots.   We have been praying for rain and snow, and the Good Lord is providing it:

Installing Reservoir Staff Gages

How is a staff gage installed in a reservoir?  The typical way is to drive a piece of 2″ galvanized pipe into the ground, deep enough to so it isn’t easy to push over.  If cattle will be in the reservoir to get water, then the pipe needs to be really well installed.  A gas-powered post pounder can be rented at Rental Guys, Home Depot, or similar places.

Most reservoirs are deeper than six feet, so it’s best to maximize the length of pipe installed.  The length of pipe that can be installed by hand is usually about 6 feet.  For a 6-foot tall pipe, about 3 feet of pipe needs to be in the ground, so the total pipe length is 9 feet.

Then the staff gage is attached to a 2″ x 8″, using screws or small bolts.  Staff gages vary in width from 1″ to 4″; the usual USGS Style C staff gages are 2-1/2″ wide.  Once the staff gage is screwed on, the board is U-bolted to the pipe.

That’s it…except for the surveying part.  The top of staff gage needs to be at the same level as the spillway crest, so the maximum water surface elevation can be measured.

If the reservoir is deeper than 6 feet, and most are, then staged staff gages may be needed.  The first gage is installed at the top, going from, say, 6 feet to 12 feet.  The second, lower staff gage is installed from 0 feet to 6 feet, and 6 feet is exactly the same elevation on both staff gages.  In the photo below, there are 3 staged staff gages to measure 18 feet in elevation.  The top of the third, lowest staff gage can be seen in the bottom right corner.

What if a pond is full, or mostly full?  It is still possible to install a staff gage, but it will be harder.  Boats or rafts will be needed, and the pipe with the board already attached has to be put in place and held vertical while being driven.  If the total depth is greater than 6 feet, then a longer pipe, board, and staff gage will be needed, and the combined weight will be that much greater.  Hint: tie a rope and buoy to the pipe so when if it slips and sinks, it can be pulled up again.

What about installing a staff gage along the slope of a dam, to avoid having to wrestle a pipe and board for a deep installation?  This can be done by attaching a length of rebar or pipe to the dam face using concrete stakes or similar method.  The slope distances measured are converted to vertical depths.  However, this won’t stand up well to cattle or elk traffic, and it is more liable to be vandalized if the reservoir has easy access.

Option For Pipe Flow – Seametrics Paddlewheel Meters

How do you measure flow in a pipeline?  The simplest

McCrometer Magnetic Meter

way is integrated, saddle-mounted propeller or magnetic meters.  For example, see the post on McCrometer magnetic flow meters:  https://allwaterrights.com/tag/inline-magnetic-flow-meter/.  Propeller meters look much the same.  Both mount through a hole cut in the pipeline, making them quick to install, and easy to remove for maintenance.  These meters can handle some sediment and still be accurate, although water with a lot of silt and sand wears out propellers faster. 

McCrometer Propeller Meter
Installing Propeller Meter

 

 

What about cost?  For integrated meters, the costs start at about $3,200 delivered, and go up with diameter.

If you want to spend the least amount of money and still have accurate flow

DL76W Wall-Mount Data Collector

measurement, a paddlewheel meter may be a good solution.  These can be integrated, or can be assembled from the meter, data collector,

IP800 Paddlewheel Meter

display, and possibly other parts.

 

For an idea of the cost, an IP 800 paddlewheel meter, FT450 display, and DL76 data collector for a small pipeline cost about $2,000 delivered. 

FT450 Data Display

That is about $1,200 cheaper than a magnetic meter for the same-sized pipeline.

 

So, why not always use a paddlewheel meter rather than more expensive magnetic or propeller meters?  Paddlewheels wear out faster if there is sediment in the pipeline.  I have seen installations where pumping from a muddy river wore out a paddlewheel

Saddle for Paddlewheel Meter

in a year, but a propeller meter lasted 3 years pumping from the same river before needing refurbishment.  The shaft and wheel can be replaced in the field, at a lower cost than propeller or magnetic meter refurbishment.  However, busy farmers and ranchers don’t have time to check the paddlewheel once or twice a year, so the meter installation is at a greater risk of losing data than a propeller or magnetic meter.

Paddlewheel Meter in Saddle

If you are brave or experienced enough, you could get a paddlewheel integrated with the data collector, and no external display.  This would get your delivered cost down to about $1,500.  Data needs to be downloaded more often, perhaps every 2 to 3 months, to ensure the meter is working correctly.  Also, the meter needs to be installed from the side, not the top, so more clearance is required to the side.

DL76 Data Collector Mounted on Paddlewheel Meter

Riparian Rules by Chuck Rich

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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.)
  7. Riparian rights are not lost by nonuse of the water.
  8. “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).
  9. 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.
  10. 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.
  11. 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.
  12. 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.

Do Something Wrong, Instead Of Nothing Right

Do something wrong, rather than nothing at all. Have you ever heard that before? I have heard it from Army veterans, a boss, even an elder of a church.  George Patton said, “A good plan violently executed now is better than a perfect plan executed next week.”  A non-military way to say that is, “A poor plan now is better than no plan at all.”

What it means to you and me is, if action is necessary, do something, maybe ANYthing, rather than freezing in place or ignoring a problem. This is obvious when you see a tornado 5 miles away, for example; either drive away from it if you are in a car, or take shelter if you are on foot. If you have a plumbing leak in the house and no parts to replace broken pipe, then put a bucket under it, or turn off the valve, and call a plumber. All of us have seen a TV show (or maybe had it happen to us) where the bad guy pointed a rifle and said, “Don’t move”. What do we all say to the TV? “Don’t just stand there, run!”. Doing nothing is a much worse choice, if the result for freezing in place is death or injury.

Ready-to-install 3-inch Montana Cutthroat Flume

What about water rights – how does doing something wrong help? Everyone knows by now that surface water diverters need measurement devices, so put in a weir box and boards and measure your flow before the threats come from the Water Board, your watermaster, your ditch tender, or your neighbor.  Even just stick horizontal boards in a ditch and seal the sides with plastic – something to take positive action to reduce future pain.

Remember to file the information for the measurement device with the Water Board, either via your annual report of diversions, or using the Water Right Form and Survey Submittal Portal.

Take a look at the blog posts below.  There is enough information and how-to directions, that you should be able to do it well enough to satisfy the Water Board.  Check out these posts:

There is a philosophy based in law and a lot of experience, that says don’t put any controls on yourself until the court or government makes

Temporary Weir In Ditch

you. Why remodel your house to accommodate the wiring or plumbing, if you aren’t selling the house and everything works okay right now? Who would put a lot of money into an old truck to make it pass smog, if it just might pass a smog check the next time it has to be done? What farmer would change how he irrigates or ranches if everything still operates and the bank will keep making operating loans?

All of the Water Board deadlines have passed to install measurement devices, or file Alternative Compliance Plans.  If you haven’t got your device or plan done yet, get a Request For Additional Time done as soon as possible.

Be proactive.  Take some inexpensive, temporary action.  Educate yourself for free with some time in the Internet. Even a small, less-than-perfect improvement in your measurement device, flow and water use record keeping, can pay back a lot more when you have to deal with potential Water Board fines, a court case, or even just an angry neighbor in the future.

Measure Any Flow With Watchman Flumes

How can large diversions be measured?  Long-throated flumes are a good option, especially if the ditch has low banks, or a lot of sediment or debris could clog a weir or orifice.  Premanufactured Parshall or Replogle flumes go up to around 20 cubic feet per second (9,000 gallons per minute).  If they are made for larger flows than that, they are prohibitively expensive to ship or manufacture.

Watchman 10 cfs flume

Recently, though, Watchman long-throated flumes have become available.  They are made in Northern California, so shipping costs are lower.  They typically go up to 20 cubic feet per second in size, but I have installed a 30-cfs Watchman flume.  The manufacturer can easily make larger-capacity flumes, too – standard plans go up to 60 cfs, and they can be shipped in ready-to-assemble sections for up to 200 cfs.

Watchman flumes are made of 10-gauge steel, a little thicker than 1/8 inch.  The premanufactured flumes I have seen ship from outside the state are made of 16-gauge steel, which is about 1/16″ thick.  These can work well if care is taken during installation, but the Watchman’s heavier gauge steel can withstand more backfill and rougher treatment.  They’ll last longer, too.

Watchman 20 cfs flume

What about cost?  It turns out that Watchman flumes are about the same cost per cubic foot per second, as flumes made from lighter-gauge steel.  Some farmers and ranchers like concrete better than steel.  Watchman flumes can be built inside Briggs pre-cast concrete rice boxes and weir boxes, if you need an installation to last for 30 years or more.

Where can you buy these?  The manufacturer does not advertise – let me know and I can put you in touch with them.

Can a water right be lost?

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

  1. I’m about to buy some land.  Will I have a water right if the previous owner did not use it for X years ?
  2. My neighbor hasn’t used his right in X years.  He lost it, so I can use it, right?

The short answer is yes, an appropriative, post-1914 water right can be lost.  Court-decreed water rights, riparian rights, and pre-1914 cannot be lost – usually.  We’ll discuss those cases later in the post.  What most people are thinking of is the provision from WATER CODE SECTION 1240-1244:

1241.  If the person entitled to the use of water fails to use beneficially all or any part of the water claimed by him or her, for which a right of use has vested, for the purpose for which it was appropriated or adjudicated, for a period of five years, that unused water may revert to the public and shall, if reverted, be regarded as unappropriated public water. That reversion shall occur upon a finding by the board following notice to the permittee, licensee, or person holding a livestock stockpond certificate or small domestic use, small irrigation use, or livestock stockpond use registration under this part and a public hearing if requested by the permittee, licensee, certificate holder, or registration holder.

Diversion box to field“Board” means the  State Water Resources Control Board.  The emphasis on “may” and “if” is mine, and it is important.  Loss of a water right under this provision is not automatic.  It takes a complaint by someone to get it started, just as it takes a complaint for someone to get a water rights case heard by the judge of a Superior or Federal Court.

Then, if the water right holder protests that yes, he or she has diverted water during the last 5 years, it’s up to the complainant or the Board to prove that water was not diverted.  This might be from yearly photos of the land in question (rare), testimony by several neighbors;, or a lack of records from the water right holder, showing that there was indeed a crop, pasture with cattle, hay, or some other beneficial use; or some other evidence.

Let’s consider riparian rights and then put that discussion aside.  A riparian water right cannot be lost for non-use, since it is established by the Constitution of the State of California.  Riparian rights are not being considered here, and they are discussed in greater detail in the post Riparian Rules by Chuck Rich.

How does someone know that their water right may be on the chopping block?  They will have already had phone calls and probably visits from Board staff.  There should be no surprise at this point.  Then, the Board will send a letter that starts something like this:

Notice_proposed_revocation

There is an opportunity to dispute the assertions in the letter, and a water right holder can request a hearing (or hearings) before the Board.  If the alleged non-use is not a watertight case, the process can take a year or longer.

What if the water is a pre-1914 water right?  Can it be lost?  The answer used to be a fairly solid “no”, but the Board’s authority has increased in recent years.  It is harder to lose a pre-1914 right but the best defense is having used it at least once in the past five years, and having some proof it was used.

Diversion box from diversion

What if the water right is part of a  State Superior Court  or  Federal District Court  decree* or adjudication?  Interestingly, very few decrees have ANY provision for expiration of water rights.  In addition, courts usually maintain jurisdiction of these cases, so that any following petitions or lawsuits over decreed water rights must go back to court.  In essence, this makes decreed rights “eternal” or permanent, unless the rights are changed in a subsequent lawsuit.  *Statutory adjudications where the Board issued an Order of Determination, and then took it to the Superior Court to be adjudicated, might be easier for the Board to bring before the court for a revocation action.

What does the Water Board think about that?  Board staff assert that they have “concurrent authority” with State Superior Courts.  That means they have equal power over water rights.

Credit: Pixabay
Courthouse.  Photo Credit: Pixabay

Some at the Board say they have authority over the same water rights that the court does.  Is that true?

Let’s say that it is true.  Has the Board ever asserted its authority over decreed water rights in court?  The last few times I asked Board staff, the answer was “no”.  So it may be true, but as far as I have heard, it has not been tested.  So, no, decreed rights cannot be revoked by the Board without going to court.

What if a water right is managed by a water district, irrigation district, or other agency?  It boils down to, who owns the water rights?  If the district or agency owns them, then they can usually reassign them because of non-payment, and for some other reasons, too.  If the landowners own the water rights, then all the preceding paragraphs of this post apply.  The agency or district just wheels the water, for which they can collect fees for operation (labor) and maintenance if their bylaws allow.

Summarizing the subject of losing post-1914 appropriative water rights for five years of non-use, then, they can be lost if the water right holder admits it, or if there is good evidence that water has not been used.  Pre-1914 rights are harder to lose but it can happen.  The Board cannot revoke riparian rights because they are defined in the State Constitution.  Court-decreed rights cannot be revoked by the Board without going to the court with a petition or as part of a lawsuit.

What Are The Surface Water Rights When Ag Land Subdivides?

Update: I wrote this post for property owners NOT in a municipality, water company, water district, irrigation district, community services district, or other organization that has its own bylaws regarding the rights to and distribution of water.  For property that gets its water this way, water rights depend on how the bylaws allow redistribution, sale, temporary reassignment, or other transfer.  There may even be an original court decree that specified rights to individual owners, but the agency passed bylaws later that assigned water rights to the agency instead.  With the exception above considered, here is the original post:

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

When a farm or ranch subdivides, what happens to the surface water rights?  We already got part of the answer from the State Water Resources Control Board, in Post # 82:

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

The answer is well defined when a Superior Court Decree is under State of
California Watermaster Service:  Water Rights Reapportionment Method.  This document describes what is done under nearly all decrees with defined areas for water New_Pine_Dec1stpg_1925 - Editedrights, whether or not under state service…unless some other method is specified.  The State subdivides water rights whether or not new owners of subdivided parcels notify the Department of Water Resources; the requirement falls on the State instead of the water right holders.  Owners of land are notified at least once a year, since a charge for watermaster service is included on their tax bill.

What ACTUALLY happens with the water, when a subdivision is built on what used to be a farm or ranch?  Does water always go with water rights?

New Subdivision On Ranch With Water Rights - Photo Credit: Pixabay
New Subdivision On Ranch With Water Rights – Photo Credit: Pixabay

How do the owners of smaller parcels go about getting their water right?  In some cases, new owners have invested in pipelines to keep using the water right on the smaller parcels.  When the original owner subdivided the land, he or she made it clear that water rights were split up, or may have paid an attorney or engineer to split them up in advance.  These owners are well aware of what their rights are.  In other places, some new owners use water, others don’t, which is fine as long as a new owner doesn’t complain loudly.

Ex_2_Williamson_Parcel_Outline_on_DecreeMap_reducedIn still other locations, none of the new homeowners wanted to use the water, either because there was a built-in municipal supply of pure or treated water, or because one or more private or community wells were drilled.  The water right probably was not advertised as being available when the homes were built, and once the new owners were in, it became a lot more expensive to arrange pipelines across several neighbors’ properties to get a share of the surface water right.

What happens when nobody uses the water, or less water is used?  The answer is, of course, “It depends.”  If it is a decreed right, then the right stays with the

Subdivision On Old Farm - Photo Credit: Pixabay
Subdivision On Old Farm – Photo Credit: Pixabay

land unless the decree specifies another method.  It would take another court order to change the rights from what was originally decreed.  If it is a riparian right, then unless the owner was very careful to reserve riparian rights when subdividing the ranch, the only remaining rights are with those new parcels still adjacent to the stream.  Owners rarely think about reserving riparian rights in these cases, and so the riparian right is lost.  That is, unless:

  • The right was filed with the Water Board, either as a pre-1914 water right or a post-1914 application and the owner was subsequently issued a permit or license
  • …and the water continued to be used, and that use documented by the owner or with the Water Board
  • …and the water is used reasonably and beneficially, either for the original purpose of use, or for one of the many other appropriate purposes of use the Water Board considers reasonable and beneficial
  • …or, the right is part of a Superior Court adjudication, in which case the right is “eternal” because, for all the adjudications I have seen, there is no provision for expiration of rights.  Another court case is needed to change rights defined in the original decree.

I know this is not a neat, tidy explanation of what happens to water rights when a farm or ranch is subdivided.  Not surprisingly, water rights are well-understood by maybe 1% of California’s population.  No offense intended – only a few percent of the population lives on farms and ranches, and a fair number of those are in water or irrigation districts where the board and manager deal with the actual water rights.

In summary, this is an accurate description of what happens, as opposed to theoretical cases.  Water right subdivisions have a legal side, and a practical/applied side.  Sometimes the legal water right persists whether or not the water is used, as with riparian and court-decreed water rights.  Other times the reasonable, beneficial, and mostly continuous use of the water is what protects the existence of that right, for appropriative pre-1914 or post-1914 water rights.  Even if a pre- or post-1914 water right is not used for some years, when the owner does start using the water, if nobody complains, there is nothing to trigger action by the Water Board, or a lawsuit by neighbors.  After a few years of use, it will be hard for a complaining party to make the case for loss of the right because of the previous gap in time.

By the way, except where courts have decreed what the groundwater rights are, they are most like surface water riparian rights.  Regardless of the size of subdivided parcels, all of them still overlie groundwater and have a right to use it.  Control of their use is increasing with the  Sustainable Groundwater Management Act, and priorities (effective or actual) will be established, but that is a discussion for some later post.