Five Times More Water Rights Than Average Runoff In California! But, So What? Who Cares?

L.A. Times – Rights to California surface water far greater than average runoff ………. California WaterBlog – California water rights: You can’t manage what you don’t measure ………. SacBee – California allocates vastly more water than supplies allow, study shows

You have read the articles – California’s water rights are WAY more than the average annual runoff!  The system is broken!  Agriculture is to blame – gosh, those capitalist farmers and ranchers are using precious water to make…Food!  Wood!  Paper!  Clothing!  Flowers!  A living, even Profits!  It’s obvious that I am using sarcasm; larger corporate farms notwithstanding, it’s not a big income-earning concern.  More people are leaving farms and ranches for easier work schedules and stable incomes, than are getting into farming.

From the L.A. Times – In California, rights to water exceed the supply :

“On some major river systems, especially in the parched San Joaquin Valley, the over-allocation is jaw-opening. On the San Joaquin River itself, people have rights to nearly nine times more water than flows down from the Sierra. On the Kern, it’s six times. On the Stanislaus, four.

“Water rights exceed average natural runoff on 16 major rivers, UC Davis researchers found last year. And they were only counting so-called junior rights — those granted after 1914, the last time the Legislature updated California’s convoluted water allocation system.

 

Based on the actual, not theoretical, effect of these water rights, we should be saying, “So what?”  Why is that, you ask?  For very good, practical reasons, as detailed here.

Decreed (adjudicated) surface water rights usually have maximum amounts, and reductions in supply are addressed by the decree specifying that lower priorities must shut off diversions first.  If all are the same priority, then everyone shares the losses by taking the same percentage reduction in flow.  Surplus flows can be diverted under many decrees, not under others, but availability of surplus diversions usually means flows are higher than average, and anyway they come earlier in the season, before flows drop in the summer.  The great majority of these rights are for agriculture, which either feeds you and me, or is sold outside the State and adds to our economy and government coffers.  I say, Who cares?  Limits on the use of these water rights are forever in place!

Riparian water rights have correlative shares of the available water…and reduced supply means riparian diverters must reduce diversions correlatively.  Sure, riparian diverters can divert as much as they can use reasonably and beneficially, according to the California Constitution, Article X, Section 2.  But, So what?  Who cares?  The acreage with riparian rights decreases every single year, as parcels with riparian rights are split.  The resultant parcels not adjacent to the stream no longer have riparian rights, except in the very rare case of a landowner getting an attorney’s help to deliberately reserve riparian rights on newly split parcels.

What about appropriative rights?  Think about it this way: pre-1914 appropriative water rights were maximized in…1914!  As World War I was starting, when the population was about 3 million compared to today’s 39 million, there were no more pre-1914 rights.  Regarding these senior water rights, So what?  Who cares?

What about post-1914 appropriative water rights?  As Hamlet said, “Ay, there’s the rub!”  Post-1914 water rights have grown steadily since 1915, as they were continually issued first by the State Water Commission, and then by its successor, the State Water Resources Control Board.  These are water rights are junior to all of those listed above, and they are conditioned, or limited, by the Water Board.  As shown during the last couple of years, the Water Board has the power to order the curtailment of some or all of these junior rights.  I say again, So what?  Who cares?

“Aha!”, say some, “You forgot that groundwater is making up all the shortage!  And that all comes from surface water!”  Yes, and in 2014, the Sustainable Groundwater Management Act was passed to address exactly that.  It will take some years, but withdrawals will be more stable, by law, in years to come.  There would not BE groundwater deficits if surface water could get around the Delta as it originally did with SWP and CVP.  It is not for lack of money in the past to pay for pumps or even the planned peripheral canal, and it is not for the lack of technology to move the water.  It is for environmental reasons that the planned volume of water does not make it to the San Joaquin Valley.  But, that’s a subject for some later post.

Let’s be really absurd, and imagine that in California, the amount of water rights issued is ONE MILLION TIMES the average annual runoff!!!  If the average annual runoff is 70 million acre-feet, the water rights are now 70 Trillion, 70,000,000,000,000 AF Per Year!  Let’s all run around with our hair on fire!  But, what does this really mean?

If we have the same reservoirs for storage, then no more can be stored.  If there is half the runoff in a drought year, farmers, ranchers, cities, manufacturers, and other human users can still only capture and use a certain amount.  Having no more plumbing – reservoirs and canals – means a lot of water is still going to be in streams, and making it to the Pacific Ocean.  That’s “environmental” water for fisheries and other aquatic species.

If we have a record wet year, same thing.  Humans can still only capture and use what the plumbing allows.  A much higher percentage of water is available for non-human, environmental uses.  Same Plumbing = Same Maximum Water Use, regardless of water rights.

Let’s flip the argument around and imagine a California in which the average annual runoff is five times the water rights.  Put another way, total water rights are only one fifth the average annual runoff.  What would the State look like then?

This would be a lot closer to the non-human, environmental paradise imagined by the left-leaning populations of our densely-populated cities.  Scale back agriculture by a factor of 5, and then the rest of the State economy with it.  We would look more like a larger New Mexico, maybe a Colorado, than we do today.  And our 39 million residents?  We would have more like 8 million, as we had in World War II.  So, which 4 out of 5 choose to leave the State to bring about this flora and fauna utopia for the 1/5 that are left?  What, nobody is volunteering to leave California, and donate their property to the Sierra Club, to make this greater environmental national monument happen??  I didn’t think so.

This may be repetitious, but:  SO WHAT?  WHO CARES?

Finally, Moving On San Joaquin V. GW Recharge! Good Thing – Board Wants More Sac. R. Fish Flows

Delta Tunnel Alternative: Embracing Flooding for Water Supply

At last!  The Department of Water Resources (DWR) is seriously considering

Tulare Basin, Photo Credit: usgs.gov
Tulare Basin, Photo Credit: usgs.gov

planning for flooding the Tulare Basin and other San Joaquin Valley fields in the winter for groundwater recharge!  I worked at DWR for 30 years, and there were proponents of recharge when I started in 1986…actually, since the 1977-1978 drought.  I kept waiting for a pilot program to test it.  Stony Creek in Glenn County was put forward in the 80’s and 90’s…and then nothing.  The meadow restoration crowd said another 100,000 acre-foot “reservoir” could be made in upper Stony Creek just by building check dams, deepening and widening meadows.  Between the top and bottom of just one creek, maybe 160,000 AF of new storage per year!

I worked on the proposed Sites Reservoir and personally, I am all for it.  However, it’s dumb not to include every increment of winter-time storage possible.  When the floods come then put some of them in the ground.

The recent news article on this quotes David Gutierrez of DWR as saying, “That will not solve everything. There will be no silver bullet,” said David Gutierrez, executive manager of the Sustainable Groundwater Management Program at the California Department of Water Resources. “But it’s a combination of these ideas together that will help us do better than we’ve been doing in the past.”  With due respect to Mr. Gutierrez, this is bureaucrat-speak for “We’ll add this in if the Legislature will get behind Delta Tunnels and above-ground storage first, and also stabilize DWR’s General Fund budget.”  As a former bureaucrat I get it; if DWR divides its focus, that’ll let anti-tunnels interests more easily short-circuit tunnels.  Come on though, bureaucrats, get behind some wins and get momentum going!  To be fair, state agencies work for the Governor and can’t lobby…but they do have some latitude to do pilot projects and steer some discretionary funds where they will do good.

And about time, too, since OTHER bureaucrats want to take some water from Northern California diverters and leave it in the Sacramento River for fish.  When I was watermastering, and in fact throughout my 30-year career, that was the top accusation/complaint I got:  “The State of California just wants to take away our water and send it to Southern California and fish.”  I was always able to say, “No, that’s not it, we’re just looking for ways to get the water that already flows downstream across the Delta, and time reservoir releases better for fisheries.”  I sure can’t say that anymore!

California eyes more Sacramento River water for fish, less for farms, cities

The article in the Sacramento Bee says in part: “Water board
Chairwoman Felicia Marcus cautioned that Wednesday’s staff report is merely a draft. She said her agency wants various groups to submit comments before it makes a decision, sometime next year. She said the board will take into account human needs before adopting any comprehensive plan.
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Bull.  I call cow pies (I try hard not to cuss).  The Water Board is part of the California Environmental Protection Agency now, including the Division of Water Rights.  Has been for some years, and many of the more balanced staff have retired, as they hire more environmental activist enforcers.  From what I have seen, a majority of the non-Water Board part of Cal/EPA executive, managers, and staff believe non-humans have more right to the water than humans.

Quoting again from the article:  The water board first floated the concept of dedicating more of the Sacramento and San Joaquin watersheds to the environment in 2010, triggering feverish warnings from a coalition of water agencies that up to 1.7 million acres of farmland would be idled as a result. With the proposals now taking on greater urgency, water users are responding with renewed alarm.

It’s both predictable and troublesome,’ said Tim Quinn of the Association of California Water Agencies, which represents urban and rural districts. He argued that the state should also examine other measures to help fish, such as habitat restoration.

As many of you diverters have predicted for years, now the troublesome proposal is nearly a reality – an anguishing, changing world for you who work at least half-days (6 A.M. to 6 P.M.) to grow our food in businesses that get thanks from a small percentage of Californians.

Water Board Notice of Proposed Emergency Rulemaking – Water Rights Fees for Fiscal Year 2016-2017

I said yesterday that my blog posts will slow down.  Then this notice from the Water Board hit my email inbox.  These proposed water rights fee increases apply to existing and proposed permits and licenses, not pre-1914, court adjudicated, or riparian rights…unless someone also got a permit or license for one of these.

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Why do the fees have to be increased, and why does the Water Board say it is an emergency?

“Moreover, the State Water Board finds that the proposed amendments to the Board’s fee regulations must be adopted immediately in order to allow for the timely collection of fees to conform to amounts appropriated by the Legislature from the Water Rights Fund for the support of water right program activities. Without fee revenue in the amounts appropriated, much of the water rights program would be in danger of being shut down. Continued administration of the water rights program is essential to the economy and environment of the State of California. Without funding for the program, critical water transfers and changes in water project operations would not be approved, the security of water rights needed for the state’s water supply projects would be undermined, and the environment would be threatened. New water supply projects for irrigation or municipal use, and modification of existing projects involving changes in permitted or licensed water rights, could not move forward. The water rights program also is important for the protection of public health. For example, the water rights program applies and enforces Bay-Delta water quality standards that protect the drinking water supplies for 22 million Californians. In sum, adoption of the proposed regulation is necessary for the immediate preservation of the public health and welfare.”

What are the many proposed fee changes?

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Table Of Contents For All Water Rights!

It was getting hard for ME to go back and find the posts I had written, so I added a Table Of Contents (TOC) to the left menu bar.  As of this date, there are 86 posts!  I like to put work into standard, documented procedures totable_of_contents_page-edited simplify life and make it easier for me to do the same thing next time, and for the next person in my job to pick it up quickly.  Why did I wait this long to do a simple TOC?

I wrote 5 times this much verbiage in emails as a bureaucrat, so it is not lack of ability.  Of course most of my State emails were for everyday work and coordination.  Little of it had public interest.

In this blog, though, every post is of interest to a few thousand water right holders.  The TOC lets you scroll through every post at your leisure and pick out the titles you are most interested in today.  Tomorrow you’ll have a different question, and the TOC and blog posts will still be here for your use.

Do you have a question or an idea you do not see in the TOC?  Let me know and I’ll publish a post about it!

On the How Do I? page, I picked out the burning questions and the posts how_do_i_page-editedthat provide the best answers.  When I received phone calls in the Watermaster job from which I recently retired, this lookup format was most useful in helping someone solve an immediate problem.

Is there a water rights issue or flow measurement problem you can’t find an easy answer for?  Let me know and I will write a post, then include the link on this page, too!

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

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

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

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

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

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

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

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

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

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

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

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

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

Good Reasoning – Public Servants Serve…Farmers, Ranchers Are The Ag. Producers

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Photo credit: morguefile.com

My public service philosophy came largely from Watermasters, and I continue this way of thinking in my business.  The DWR Watermasters are good public servants, and they do what government employees are expected to do:  serve the public – in this case, a specific segment of the population – as they regulate diversions per decrees, make quick and correct decisions to resolve problems, educate new landowners, and keep other agencies out of decreed water rights.  However, Watermasters like Kevin Taylor and Joe Scott (and Les Grade, Ira Alexander, Mike Faber, Keith Dick, and others) taught me from the start, that the important part of the service is who is being served.

When Kevin would get complaints from diverters, he would often say, “I am interested in your success.  Watermaster service takes money out of your pocket, and food off your table – I understand that.  I want you and all the other diverters from this stream to prosper…and by making sure everyone can divert their legal entitlement, each person has the opportunity to succeed as far as it depends on the availability of a water right.”  Really, Kevin suppressed_weir_jackson_smallsaid nearly those exact words, which you know if you have ever talked with him.  Joe would often call diverters and say something like, “Hey, I just wanted you to know, flows came up and you can take another half a cfs.  Yeah, just open the gate another 3 turns, and I will fine tune it when I get there today.”  Or on the other hand, “Why did I turn your diversion down? You were taking way over your water right!  Oh, you think that’s unfair?  How about when your neighbor ______ upstream wants to crank up his diversion when he feels like it, and you can’t get your water?  The same rules apply to everyone on the creek – learn it, love it, live it!”

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Photo credit: morguefile.com

Farmers and ranchers are the producers, bringing out of the ground, water, and air, what most of the rest of us do not have:  plenty of top quality food, lumber, flowers, and every kind of grown product.  The end results feed and supply our families, livestock, pets, as well as providing surpluses to export to other countries.  If agricultural producers did not work the long hours, take risks, weather market ups and downs, and try to keep their kids interested in the family business, food and everything that is grown would cost a whole lot more.  Sure, corporations own a lot of ag. land, but it takes the same people to make the farm work.

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Photo credit: morguefile.com

Government workers can do research, carry out the public will to contract (sometimes build) infrastructure, enforce laws and rules, and make resource use equitable or legal (not always the same thing).  That’s where state Watermasters come in.  They professionally administer Superior Court decrees, sometimes permits and licenses, day after day over many years, to ensure diverters get their legal share.  The good Watermasters, like Kevin and Joe, always keep uppermost in their mind that they are serving agricultural producers.  Every story needs a main character.  In the story of agricultural water diversion, the main characters are men and women who put water to use growing food and products.

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What’s a California Watermaster Doing in Oregon?

I picked up the phone, and the caller said, “There might be some trouble.  I got a call from the Oregon Watermaster, and he says a State of California employee cannot work in Oregon.  Well, what do we do now?”

California was the Watermaster for the North Fork of the Pit River as far back as the early 1930’s, until 2007 when Modoc County took it over.  The Watermaster up there, Mike, was doing a great job back in 2006, and in fact holding down two huge areas.  WaterNew_Pine_Dec1stpg_1925 - Editedmaster authority was pretty clear, except that the lower part of New Pine Creek crossed from California into Oregon.  Back in 1925 and 1932, when the lawsuits happened, the Superior Court Judge in Modoc County issued two decrees covering all the irrigated lands, even those in Oregon.

New_Pine_Dec1stpg_1932 - EditedCalifornia Watermasters had been working in both states for decades without any questions.  Now, all of a sudden, the Oregon Watermaster said our employees can’t work in their state unless we have some interstate agreement.

Documents could not be found in the offices in Oregon, or in our office in Red Bluff.  Probably there was such a document, and as boxes of reports, letters, and investigations piled up out into the hallways over the years, the box with THAT particulaNew_Pine_Cal-Orer piece of paper was thrown away.  Back to Mike’s question:  so now what do we do?  Like all good supervisors are supposed to do, I turned the question back to Mike.  “Wow, this could really be a big headache.  What do you think we should do right way?”  Mike suggested, “Lemme see if just he and I can sit down and talk about it.  I’ll let you know what comes out of that, and we’ll see if we have to get attorneys, management, the Director, and who knows who else involved.”  I thought Mike was pretty smart, like all the Watermasters are, so I said that was a great idea.

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A week later, Mike called back.  “Hey, I met with John, he’s a real nice guy.  I explained what our watermaster service is, how we’re always making some people a little mad, and a few people a lot mad while keeping diversions legal.  I told him how one time up there on New Pine Creek, a diverter came out on his porch after I turned down his diversion to his water right amount, and I was over talking to his neighbor when he fired 3 rifle shots in the air.  We talked about the early morning and late evening hours, and then I asked, what do you think we should do?  He thought about it and said, why don’t we keep the status quo?  If management got worried, then they could make a decision, but everything seems to be working real well.  I agreed, and that’s where we left it.”  “Mike, you’re a genius again, well done.  I’ll write a short email for the files and we’ll leave it at that.”

To this day, the California Watermaster works just a very short way into Oregon…and it serves the diverters very well.

Water Board Legal Actions, Part 1

The Water Board takes legal actions against individuals, associations, companies, etc. (parties), regarding diversions, surface and groundwater pollution, mis-reporting or not reporting diversions, noncompliance with permits and licenses, underground storage tanks, and more.  Prior to assessing fines, Water Board managers, attorneys, or staff make phone calls to to the suspected parties, and they may make field visits to confirm allegations or gather more information.  Sometimes that’s enough – a phone call or visit may move a person to change practices, or take corrective action, and comply with the law.swrcb_complaints_program

The Water Board will follow up their calls or visits with a letter summarizing the facts, allegations, and actions taken by parties.  That may close out a complaint (if that is how the actions came to the Board’s attention) or may complete an investigation, with the provision that the promised corrective action will be done.CDO page

Their letters may seek information about alleged infractions, or may be cease and desist orders, or may convey the results of investigations and hearings including what fines or other penalties are assessed.

 

CWC page

The Water Board relies on the California Water Code, case law from lawsuits in the State Superior Courts or other courts, and those resolutions, orders, and decisions made by the Board itself, which it designates as “precedential”.  That means the Board looks back at these documents to help make decisions in the future.SWRCB ROD prec

In many cases the Board does not act alone, since it is just one of many California state and federal agencies.  It may combine its efforts with the California Department of Fish and Wildlife (CDFW, was Fish and Game), the U.S. Fish and Wildlife Service (USFWS), the State Attorney General (AG), the U.S. Army Corps of Engineers (USACE)…the list could include many more.  How does this cooperation with other agencies work?

The Water Board has authority over many water rights and uses of water, but other agencies have the primary authority over other uses of water.  For example, CDFW has authority over the California Fish and Game Code, which gives guidance on how much water must be left in streams by diverters.  Solid scientific studies must be made to prove how much water is needed.  In place (or pending the outcome) of these expensive, long-term studies, CDFW determines and/or negotiates flow amounts, and the Water Board uses their power to convince diverters to comply.  This works because CDFW could not prove the exact need in the near future, and CDFW is very reluctant to go to court to sue diverters.  However, the Water Board can act on the “best available information” or “reasonable estimates” to determine how much water must be left…and the Water Board can assess fines by itself without having to go to the Superior Court.  This makes for some very interesting stories…and those will be taken up in a later post.wbwa

Save Water? Ask Savers…And Depend On Capitalism

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Pixabay, public domain

Do you think of Florida as short on water?  I sure didn’t; I have been there a couple of times and got rained on every day or two.  However, a University of Florida study on saving water concludes that if more conservation is needed, it’ll be easiest to get from those who already use less water.  That study is summarized in this short article.

On the opposite coast, what does that mean for California?  It means that voluntary conservation seems most likely to come from those who are reportedly conserving the most:  farms and communities in the San Joaquin Valley, and agencies and homeowners in the Los Angeles Basin.

1024px-USACE_Black_Butte_Dam_and_Lake
Black Butte Lake, Wikipedia

Does that mean that water districts and diverters in Northern California do not conserve?  There may be less conservation, especially if diverters have a reservoir.  Winter and spring flows are stored for later use.  Those flows would have gone to a a river and usually, out to the Pacific Ocean.  We’ll leave out the discussion of environmental uses of instream or stored surface water, except to say that they are one possible kind of use.  There are usually some senior water right holders who have first call to the water, or who get a higher percentage during a drought.

How about irrigators who have little or no water storage?  Since they depend on natural flows, droughts mean there is less flow available.  It’s not voluntary, but the diverters share the losses, either

FloodedField_Pixabay_nature-1252579_1280
Pixabay, public domain

with lower priority water right holders  shutting off first, or everyone taking a cut if everyone has the same priority.

The photo on the left shows flood-irrigation, which is the least efficient method and raises the hackles of downstream diverters, or just about anyone south of the Delta.  Flooding allows less productive land in California’s mountainous areas, often with shorter growing seasons, to be used to for pasture to raise cattle and other livestock, or for hay which might be used anywhere in the Western U.S.

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Pixabay, public domain

Even though not required, flood irrigation is being replaced over time with more efficient methods.  Ranchers and farmers want to make scarce water stretch farther and irrigate more acres than flooding would allow.  Land is being leveled right now to make

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Pixabay, public domain

flooding go further.  Sprinklers are increasingly used, so that less is diverted in the first place.  Plain capitalism makes upgrades economical for the long-term.  This isn’t an instant result, like voluntary conservation brings, but more water is available for instream and downstream uses every year.

These irrigation improvements are part of the reason that the State Legislators, Governors, and the State Water Resources Control Board have been careful about what laws to impose in the

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Pixabay, public domain

upper watersheds.  Many of the rights in the upper Sacramento River Basin are defined in Superior Court Decrees, and so are senior rights.  However, the State has and still can make laws that reach back and change the rights in these old decrees.  Many of you diverters on these streams have continually explained to politicians and bureaucrats that suddenly modifying or qualifying water rights can wipe out billions of dollars of agricultural production overnight.

So, yes, the fastest voluntary conservation will be had in the southern two-thirds of the state.  And a lot of senior water right holders up where rain and snow fall, in the northern third of the State, may be experiencing the same or even greater percentage of involuntary reductions in diversions at the same time.  “One size fits all” conservation may still not be equitable.

That’s enough on this for today.  Let’s hope and pray that precipitation is higher than forecasts next winter!

Can I lose my water right?

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 are major exceptions, usually – we’ll discuss those cases later in the post.  What most people are thinking of is the provision from WATER CODE SECTION 1240-1244:

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

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 pasture with cattle, or hay, or some other beneficial use; or some other evidence.

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

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

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.

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.