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.
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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.

California Water Rights Are Complicated! Can’t They Be Easier?

California water rights are complicated, which you already know if you have spent an hour trying to figure them out.  From the November 2015 post Water Rights – Why Do They Exist? Which Kinds Are There?, here is the summary list of types:

  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, Article X, Section 2
  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. Appropriative post-1914, issued by the State Water Resources Control Board (Water 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
Photo Credit: morguefile.com

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.

You Can Be Your Own Qualified Individual For Diversions! AB 589 Passed October 4 – Training Coming Soon

Good news for folks who want to install, certify, measure and maintain their own devices!  AB 589 passed on October 4, and now any landowner, or their lessee or employee, can take the class and do all the required stuff to measure and record his own diversion flows / volumes.

I have not heard what the class dates might be, or whether it is online, and so on.  As soon as I do, I will sure put the word out there.  Meanwhile, let’s hope for another wetter-than-average winter – abundant water solves most of the demand issues.

 

Assembly Bill No. 589

CHAPTER 471

An act to add and repeal Section 1841.5 to, the Water Code, relating to water rights.

[ Approved by Governor  October 04, 2017. Filed with Secretary of State  October 04, 2017. ]

LEGISLATIVE COUNSEL’S DIGEST

AB 589, Bigelow. Water diversion: monitoring and reporting: University of California Cooperative Extension.

Existing law requires a person who diverts 10 acre-feet of water or more per year under a permit or license to install and maintain a device or employ a method capable of measuring the rate of direct diversion, rate of collection to storage, and rate of withdrawal or release from storage, as specified and with certain exceptions. Existing law requires the measurements to be made using the best available technologies and best professional practices using a device or methods satisfactory to the State Water Resources Control Board. Existing law requires a permittee or licensee to demonstrate to the board at 5-year intervals that a measuring device is functioning properly, as specified.

Existing law authorizes the board to adopt regulations requiring measurement and reporting of water diversion and use by persons including, but not limited to, those authorized to appropriate water under a permit, license, or registration for small irrigation use or livestock stockpond use, or a certification for livestock stockpond use.

This bill, until January 1, 2023, would require any diverter, as defined, who has completed an instructional course regarding the devices or measurement method administered by the University of California Cooperative Extension, including passage of a proficiency test before the completion of the course, to be considered a qualified individual when installing and maintaining devices or implementing methods of measurement that were taught in the course for the diverter’s diversion. The bill would require the University of California Cooperative Extension and the board to develop the curriculum of the course and the proficiency test.

Vote: majority   Appropriation: no   Fiscal Committee: yes   Local Program: no

 

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1.

Section 1841.5 is added to the Water Code, to read:

1841.5.

(a) For the purposes of a device installed pursuant to Section 1840 or 1841 or a method of measurement proposed and adopted pursuant to Section 934 or 935 of Title 23 of the California Code of Regulations, any diverter who has completed an instructional course regarding the devices or measurement method included in the course administered by the University of California Cooperative Extension, including passage of a proficiency test before the completion of the course, shall be considered a qualified individual when installing and maintaining devices or implementing methods of measurement that were taught in the course for the diverter’s diversion. The proficiency test shall seek to certify that the diverter has a satisfactory understanding of the principles of measurement and the use of a measurement method included in the course or the installation of a device. The University of California Cooperative Extension and the board shall develop the curriculum of the course and the proficiency test. The University of California Cooperative Extension and the board shall ensure the course curriculum and the proficiency test do not conflict with any state licensing acts.

(b) For purposes of this section, “diverter” means an individual authorized to divert water under a valid water right, a lessee of property that is subject to a water right who is acting as a representative of the water right holder, or a bona fide employee of the water right holder or lessee.

(c) This section shall remain in effect only until January 1, 2023, and as of that date is repealed, unless a later enacted statute that is enacted before January 1, 2023, deletes or extends that date.

Reasoning With Regulators, Benefitting From Bureaucrats – Update

I worked 30 years as a bureaucrat.  That gave me first-hand immersion in working with members of the public, especially water right holders who divert water from various streams in Northern California.  When it comes to property rights, owners are intensely interested in getting problems solved, fast and hopefully permanently.  As a property owner I will get the help of whoever I can and whoever it takes to solve my problem.  On the flip side, when I worked for state government, I sure know what worked to get me to work on someone’s problem!

Whenever you divert water, you deal with people.  Your neighbors are very interested in what you divert.  They want you to use only your water right and hopefully less…and they want every possible law applied against whoever takes more than their legal share.

Laws are made by people.  I’m not talking about God’s Laws which are not in your or my control.  The man-made documents and organizations that establish, make, change, and enforce water laws and rules include:

  • the California Constitution
  • the Legislature
  • the Governor
  • Courts at various levels
  • everyone’s favorite: federal, state, and local agencies

file581310649632Agencies, otherwise known as bureaucracies, all have one thing in common.  To emphasize a very important point: they are all run and staffed by people.  Some folks are easy to deal with, others aren’t.  Some are truly caring human beings, and others hide behind the policies of their employer.

What exactly is a bureaucracy?  Here is a very good explanation:  https://en.wikipedia.org/wiki/Bureaucracy

By the way, corporations are the same as bureaucracies in a lot of ways.  Since we are talking about the diversion of surface water, that means bureaucracies.  And bureaucrats.

There are some money-saving, hassle-saving methods to dealing with bureaucrats.  These are time-tested and have worked for me and many others.  When other people acted this way with me, when I was a bureaucrat, to get me to do something even when I was too busy, it worked!  Hopefully these practices and techniques will aid you in dealing with an agency or a particularly difficult bureaucrat.

  1. Do some research.  “Google It”, as the saying goes, and learn about the agency you are dealing with.  (Actually, I am using Bing and DuckDuckGo as much as Google these days, to get accurate instead of popular results.)  Search for comments by people who had the same problem as you.  How did they handle it, and what was the result?  Did someone have a particularly effective way of getting a problem solved?  It might be worth an hour of your time to use the Internet to find out everything you can first.
  2. Document your problem in writing before contacting a bureaucracy, with text, photos, maps, drawings, contacts, everything you can get on paper.  Scan it if possible so everything you have can be emailed.
  3. Assuming you are calling or talking to the person, write everything down.  E-ver-y single thing.  Date all the entries.  Get each person’s name.  You might buy a cheap spiral bound notebook at a WalMart or Dollar store – or buy a few, and the ones you don’t use when dealing with bureaucrats you can use for a diary, or shopping lists, or dealing with corporations.  Let the person know that you are keeping careful notes.
  4. Always be polite, and especially so during the first few contacts about a problem.  Do not threaten, curse, yell, or any of those things that would be classified as “impolite”.  If the person you are talking to gets unpleasant, just keep a record of it for later, and maintain your calm demeanor.
  5. Explain your problem or need in as few, relevant words as possible.  Boil your problem into one or two specific things that you need done.  That way a helpful person can get you the help you need quickly, without strain on your vocal cords or his or her ear.
  6. Don’t share your life story, complaints about your neighbor’s dog, the hassle you had getting your car repaired, or go into what a rotten, horrible person your neighbor is.  That is wasted time.  Unless what you say bears directly on the problem, it takes away working time from the person listening on the other end of the phone line, or reading your email, or sitting across the table from you.  There may not be enough time left to solve your problem!
  7. Give thanks and credit to the people who help you.  Call their boss, or write the boss a note about the great work they did in helping you.  Let everyone else you talk to about your problem know about those helpful people.
  8. If a bureaucrat says “It’s not my job”, politely explain the person’s statutory/legal/moral or other obligation to help you, and the terrible consequences to you if the person does not carry out his or her agency’s mission.  Give a reasonable estimate of the economic harm or cost involved.
  9. On the other hand, if the answer you get is “I have no idea how”, don’t get frustrated, get more contacts from the person.  You’ll be following a trail, sometimes clear, sometimes through thick brush.
  10. If you are talking to the right person and cannot get the help you need, or an exemption from a rule, or whatever help you are looking for, ask to talk to the bureaucrat’s boss.  Don’t insult the employee to the boss, just explain to the boss that he or she has the great power needed to help you.
  11. If the boss cannot help, ask to talk to his or her boss.  See the pattern here?  Be courageous and go up the line as high as you need to go.
  12. Take a few minutes and search online for the names and contact information of the people on the Board, or the Director, or the Chief, of the bureaucracy you are dealing with.  It can help to let a bureaucrat know that you know who these people are, and while you really don’t want to have to go that far, you will contact them if necessary.
  13. If you are being harassed or threatened by an agency and you are pretty sure they are going above and beyond their authority or normal practice, there are ways to get them to back off or slow down and listen.  Sometimes mentioning that they may be in violation of RICO, the Racketeer Influenced and Corrupt Organizations Act, can give them pause.  Ask them for all communications in writing – that can cut up to half of bureaucratic actions off right at the knees.  Ask bureaucrats to include references to all laws, rules, regulations, codes, court cases, etc., that they are relying on.
  14. Find the agencies, boards, or people to whom you can file a complaint, if you have exhausted all normal ways of getting the help you need and you haven’t been helped.  You may even have to enlist the help of staff at your state legislator’s office, or your congressperson.
  15. Although it is expensive, you may have to hire an attorney.

That’s a long list, but if you are dealing with the State Water Resources Control Board, a lot of those folks are reasonable people.  The main problem at the Board is that these folks have five times the work to do than they can get done.  You’ll probably have to call several times to get someone’s attention.  See Rules 1 and 2 above!

StateWaterBoardHomePage

Telemetry Required On Diversions Over 20% Of Stream, or 30 CFS, or 10,000 AF+… By 2020; One Hardware Option Listed Here

According to the State Water Resources Control Board Drought Emergency Regulations, some diversions must be telemetered.   This does not applied to diverters under State or court-appointed watermaster service…their Watermaster IS their telemetry most of the time, by visits, phone, and email.

Stream Gage - Photo Credit: usgs.gov
Telemetered Stream Gage – Photo Credit: usgs.gov

 Which diversions must have telemetry, and when?  If you have read Paragraph (4) of the regulations (below), you have noticed that it is not easy to understand.  It took me 12 reads before I really figured it out…and I have read and applied more than 20 water rights court decrees over the last 12 years.

We’ll start with “when“.  Telemetering has to be installed and working by the end of 2019, to meet the Jan. 1, 2020 deadline.  That is, unless your diversion is from one of four named watersheds tributary to the Russian River…and all those folks are talking with the Water Board and know what their special deadlines are.

Now the “which“:

—–>  Anyone who diverts 10,000 AF per year or more.  What amount of diversion is this?  “It depends” is the usual answer.  Here are some examples:

  • A constant diversion of 27.8 cfs for 6 months, from one or more diversions to the same owner, and maybe to any lessor
  • A constant diversion of 21.8 cfs for 8 months, from one or more diversions to the same owner, and maybe to any lessor
  • A more real-life example is of a diversion that starts at 100% of the water right, say on April 1, and declines to 50% at the end of the season, say September 30.  For a steadily declining diversion over 6 months, the beginning rate is 37 cfs, and the diversion amount would drop to 19 cfs by the end of September.
  • Stretching out the season to 8 months, say March 1 to October 31, a diversion of 28 cfs declining steadily to 14 cfs.

—–>  Anyone who has a reservoir that can store 10,000 AF.  It does not matter if the actual diversion is zero, or 1,000 AF, the capacity makes the difference.

—–>  Anyone who diverts 30 cfs or more at ANY time, June through September.  Wouldn’t someone know if his or her diversion ever hits the 30 cfs mark?  Many times, no, especially when surplus flows early in the season may allow a diversion to take 20% to 50% more than the water right.  (Surplus flows are allowed for some water rights, not for others, that’s another subject….)

—–>  Anyone who diverts more than 1/5 of a creek or river (or maybe just 1/10 if the Board gives notice) that has a stream gage online, and who is on certain north coast streams, or Deer, Mill, or Antelope Creeks tributary to the Sacramento River, or 4 tributaries to the Russian River, …OR HAS, OR USED TO HAVE THREATENED, ENDANGERED, OR PROTECTED FISH.  That last is the big deal and encompasses most of California’s waterways below the dams!  I suspect it does not apply at this time to most streams above Shasta and Friant Dams, since those were built prior to the passage of the federal Endangered Species Act in 1973.  The main concern on the Sacramento and San Joaquin Rivers are listed spring and winter run Chinook salmon.  One or more fish species could be listed in the future on these above-dam streams, which is a potential issue just about everywhere.  Here’s a way-out-there thought – if agencies truck salmon up above the dams, are the fish still listed?

State Water Resources Control Board Resolution No. 2016-0005
To Adopt a Drought Emergency Regulation For Measuring And Reporting Water Diversions

telem_1

telem_2

One Way To Telemeter A Diversion

There are out-of-the-box options for telemetry – I’ll mention just one here:  the In-Situ

in-situ_rugged_troll_200_loggerRugged Troll 200 Data Logger and Tube 300 Telemetry System.

The Troll 200 Data Logger ($595) can run independently without telemetry, or be attached to the Tube 300R Telemetry System ($1,320).  The Troll 200 is non-vented, so like the Onset Hobo data loggers mentioned in earlier posts, an extra unit is needed for air pressure to correct the water level (pressure) recorded by the unit in the water.  The cable and software for the Troll 200 are about $375.

The total unit cost for 2 Troll 200s, a Tube 300R, and accessories, is about $2,900.  Tax, shipping, and installation will add $600 and up, depending on location, elevation, and the length of the dirt road going in; and difficulty at the site and vandalism potential will add costs, too.  $3,500 + for telemetered water level logging is not cheap, but it is a lot less than a full-on gaging station with satellite radio, which costs $12,000 and up for components, and over $2,000 to install in easy locations.  Telemetry is expensive, there is no way of getting around that fact.

The Tube 300R requires a separate phone number for each water in-situ_tube_300r_telemetrylevel logger, and cell service.  In-Situ offers the option of $35/month web hosting, on its HydroVu Cloud Data Services Plan.  This cost is in addition to the Tube 300R, cell phone service, and installation.

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.