Specify Your Riparian Water Right In Your Deed

Do you have a riparian water right?  If your property borders or crosses   a natural stream, then you probably do.  If you are unsure, then read the best explanation I have seen, in plain language, in this short document:

Riparian Rules By Chuck Rich.

What can destroy your riparian water right?

  • A property split, if it results in a subdivided parcel that no longer borders the stream.
  • A Superior Court Decree, while it does not take away riparian water rights, can restrict how much and when that riparian water right can be used during irrigation season.
  • A stream can move through the process of erosion, so that a property no longer touches a stream.  How much movement is enough?  “It depends.”  If it is gradual, and the diversion remains active, then the riparian water right is probably still secure.  If a stream suddenly moves, so that it cuts through the property on the other side, and now there is a piece of that property between your parcel and the stream, this avulsion could very well remove a riparian water right.  The water right would only be definitely lost through some action of the Water Board, state Superior Court, or federal court.
  • A person or agency can take a piece of property along the stream.  A person might try and succeed in getting part of your property through adverse possession.  So, always pay your taxes, and notify anyone who leases or regularly accesses your property that you retain full ownership.  An agency might take it to build a levee, or create a corridor of riparian habitat.  In either case, your parcel would be severed from the stream.

How can you protect your riparian water right?

Know the law – print out Chuck’s explanation and read it every few years.

Put it in your property deed.  How should that be done?

  • The best way would be to get the help of an experienced water rights attorney who has written riparian water right provisions for property.  There are very few of these attorneys and they can be hard to find.
  • Put in plain English what you want to do.  What might you include?
      • State that the property has a riparian water right, name the stream, and describe the diversion point, place of use, and purpose of use.  Include an Assessor Parcel Map of your parcel(s).  If possible, include photographs.
      • State that this riparian water right is retained even if the stream moves, gradually or suddenly, away from your parcel.
      • State that it is your intent, and it will be the intent of you, your heirs, and any other purchaser, to retain the riparian water rights for any subdivided parcel, whether adjacent to the stream or now.

If you have a parcel that was severed in the past, but that parcel has used the 

same diversion point continuously from the time before the subdivision, state in your deed that the intent at the time of the subdivision was to retain riparian water rights for your parcel, and that you have continued to divert under  riparian right of claim, and that you do have a riparian water right.

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No Record Of Water Right, Or Split? File Initial Statement

What do you do if your water right has never been recorded with the State Water Resources Control Board?  Or, if your property was split from a larger farm or ranch, and you are handling your smaller water right on your own?  After all, every water right has to be filed with the Water Board, except most of those that are uniquely listed in Superior Court Decrees.  This is true regardless of whether the water right is riparian or appropriative (pre- or post-1914).

You’ll need to file an Initial Statement.  These are 4 pages unless cannabis is grown with the water right – that adds page 5.  The forms are downloadable, fillable PDFs.  If you have your information together and you are handy 

                        Water Board Initial Statement, Page 1 of 5

with Google Earth, you might have your form done in a few hours.  As with any property description, the better it can be explained, the easier it is to defend your water right if someone has a complaint.

With the Water Board, it’s better if you file before the Water Board comes looking for you.  I have not seen folks get fines for filing even when water rights have been used for 50 years, or 100, or even since 1850 (or earlier).  The Water Board folks are good to work with and they would much rather that people become compliant with the law, than write nasty letters and issue fines.  That may not always be true as regulations get tougher, so get your filing done soon!

How is an Initial Statement different from filing a Water Right Application?  An Initial Statement is filed if the water right is already in use.  The Water Board is careful to point out that an Initial Statement is not the basis of, nor is it proof for a water right.  It is just the way to report if diversion or storage has taken place for some time.

What if your storage or diversion began after 1914, since that is when the Water Board was created and when its authority began?  Except for riparian rights, this is a gray area.  I think the official answer from most folks at the Water Board is that appropriative water rights after 1914 are only established by a water right application, obtaining a Permit, and hopefully perfecting that Permit into a License.

In reality, there have been many Initial Statements filed for post-1914 water rights.  It seems that these stand if there isn’t already a complaint against the filer, and if the water right is not in an already over-appropriated stream where there are obviously more water rights than water.  The presence of chinook salmon or steelhead trout might put a post-1914 Initial Statement in question, too.

The problem with filing a Water Right Application is that you have no idea what the  outcome may be.  It might be denied, or have restrictive conditions imposed, and you won’t know until you have spent some thousands of dollars.  Even if your water right is senior to some rights that were filed decades ago, the outcome is unknown.  Also, the Water Board folks are extremely busy, and some applications are never completed.

So, many folks take the safe action to protect their water right and comply with the law:  they file an Initial Statement.  Better to do something not exactly right, or even wrong, than nothing at all.

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.

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!

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