Category: Water: Yours or State’s?

Water rights give a diverter the right to use the water reasonably and beneficially. Where agriculture was the main beneficial use on a lot of waterways, now instream flows, water quality, water temperature, groundwater recharge, and a host of other uses are making demands on the water. Can you use your water just the same as it was 50 years ago? What restrictions has the State put on your use of the water? What is likely to change your rights in the near future?

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

Faucet_Pixabay_water-1239368_1280
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.

3inPipePasture_Pixabay_spraying-294628_1280
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

SprinklerPasture_Pixabay_water-340468_1280
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

WheelLine_Pixabay_irrigation-403371_1280
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.

California Water News All In One Place – Aquifornia

How do you keep up on California’s water news?  A great place to see articles for all major and many local newspapers is Aquafornia.

I fell behind on my blog and missed the weekly deadline, so I am behind a couple of days.  Travel for my son’s college graduation on the other coast, as well as Internet issues played a part.  Now my schedule is back on track and I’ll get another post in this week to make up for the tardy post.

Newspaper articles vary in length, coverage of the subject, and context.  The quality depends on reporters’ experience and editors’ interest in water subjects.  Since the great majority of California’s population lives in urban areas, reporting on water issues can be brief and leave out detail regarding agricultural issues.  Water rights is a complicated subject and it can be difficult to figure out what a reporter is actually saying when writing about some aspects of changes that can affect diversions!

AuaiforniaThe great thing about Aquafornia is that they aggregate, or pull together, a whole bunch of articles in one place.  I have been reading news articles from their site for years to keep up on news inside my area of expertise, as well as reporting well outside my own interests.

It’s always good to know what;s coming down the pipeline that might widely impact water rights.  For example, urban and environmental water shortages or water quality issues will certainly affect agricultural water rights in the long run, possibly even in the near future.


Screenshot 2016-05-11 at 06.50.27 - EditedAquafornia is a whole lot more than current water news.  The site, hosted by the Water Education Foundation, is an encyclopedia of Statewide water issues.  If you want to do research on any water subject, it’s a very good place to start or get pointed in the right direction.

Water Management (Sharing Shortages) In California In the Short and Long Term, Part 2

Continuing from Part 1, why would a groundwater shortage in San Diego affect how much a surface water diverter in Modoc County could use…rather, how much the diverter has to reduce his use?  Where does all groundwateWatercyclesummaryr come from?  Surface water flowing in streams, accumulating in meadows, ponds, and lakes replenishes groundwater, whether it takes a year, 3 years, or 20 years.
Rainfall infiltrates (soaks in) until the soil has no more capacity, and then runs off.  Groundwater is directly connected to, and depends on the amount of surface water.

In 2009, just 7 years ago, the California Legislature passed and the Governor signed Senate Bills 1, 6, 7, and 8.  These new laws required:

In 2013, 4 short years later, the Sustainable Groundwater Management Act passed.  This is a gigantic change in state groundwater laws – 515 groundwater basins in California are now prioritized based on overdraft, increased groundwater pumping, and falling groundwater levels; or conversely, the health of groundwater basins – some are hardly even touched.  On this map, now everybody can see what was neCASGEM_BasinPrioritization_Statewidearly invisible 2 years ago – the state of our groundwater basins.

About 2/3 of California’s water falls in the northern 1/3 of the State.  However, most of the good agricultural land, as well as most of its population, is in that drier 2/3 of the State.

Back to San Diego potentially affecting how much water can be diverted in Modoc County…does San Diego even have a groundwater basin?  Yes it does, along the Sweetwater River.  Of course this isn’t hydrologically connected to drainage from the Pit River in Modoc County; the Pit River ultimately eCASGEM_BasinPrioritization_SanDiegonters the Pacific Ocean in the Sacramento River-San Joaquin River Delta, and the Sweetwater enters the ocean on the shores of the City of San Diego.

Think about it:  7 short years ago, groundwater was mostly a mystery to 90% of folks, and surface water management was hardly “integrated”, except for the federal Central Valley Project (CVP), State Water Project (SWP), and some relatively small projects.  20 years from now?  Heck, that’s 2036; I’ll bet that, just continuing the –> trajectory –> of legislation that started in 2009, by 2030 (14 years from now), surface water and groundwater will be so connected and co-managed, that shortages in San Diego will require diversions to be reduced from where the water is in those northernmost Counties contributing to the Sacramento River drainage:  Siskiyou, Modoc, Shasta, part of Lassen, Tehama, Glenn, Butte, and Plumas.  I put in print so we can check my prognostications down the road.  You heard it here first!

Maybe that sounds paranoid or protective.  It’s not, I would think the same whether I lived in Crescent City, San Francisco, Susanville, Oroville, Bakersfield, or San Dimas.  After all, who would have thought in 2007 or 2008, that we would be integrating surface water use, looking at groundwater maps in syndicated newspapers, hearing of possible  fines of $25,000 for misreporting surface water diversion in the middle of nowhere…?

That’s all for now, by the end of the week we’ll be back to discussing the many aspects of the diversion of surface water.  Have a good night, everybody.

Water Management (Sharing Shortages) In California In the Short and Long Term, Part 1

san_diego_sdskyline14_smCalifornia surface water and groundwater laws are increasing controls rapidly, and the changes aren’t over yet.  The end result will likecreek_through_meadow_smallly be that shortages in San Diego will reduce how much a license holder in Modoc County can take.  It will probably take 20 years for the full effect…but 20 years is a lot faster than it used to be for farmers, ranchers, cities, and the environment.

How does this work?  It is harder to see from the surface water side.  How are the two ends of the State even connected, hydrologically?  Some diverters up around Alturas divert from the Pit River, which flows into Shasta Lake on the Sacramento River, which flows to the Delta, from which water is pumped by the U.S. Bureau of Reclamation (USBR) and the California Department of Water Resources (DWR).  Actually, DWR diverts water released from Lake Oroville on the Feather River, but that water joins the Sacramento River at Verona, before it gets to the Delta.Central_valley_project-01_wiki

The federal water goes to the San Joaquin Valley, which is the southern end of the Great Central Valley and salad bowl of California.  The USBR Central Valley Project (CVP) coordinates to some extent with the California State Water Project (SWP).

CVP_State_water_project_wiki

 

 

 

The state water goes partly to the San Joaquin Valley, and mostly over the Tehachapi Range to the Los Angeles Basin.  Where the water goes from the CVP and SWP is carefully controlled by water rights and contracts.

 

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What we don’t see with our own eyes is the groundwater picture.  Groundwater pumping has dramatically increased during the last few years of drought, as news articles have made clear.  Nobody’s groundwater rights are affected by the new groundwater laws, but every groundwater basin either has or will soon have a local management agency of some type.  Maps of groundwater shortages will be in news articles, online, and where every citizen of California can see them.  This is part 1 of a several-part post on how in the world, or in this case the state, groundwater shortages in the extreme South will affect surface water diversions way up in the North.

Summary of Water Rights, Flow Measurement Posts So Far

There have been 25 posts so far, on the types of California surface water rights, flow measurement devices, and how to measure diverted flows.  You’ll see new posts once or twice a week.  Please send suggestions for post topics!  We have discussed:

  1. All Water Rights, California
  2. Read Me My Rights (How do you know if you have a water right?)
  3. Reasonable And Beneficial Use Depends On Who You Are
  4. The Smartest Water Expert In California (Chuck Rich)
  5. Riparian Rules by Chuck Rich
  6. Water Rights – Why Do They Exist? Which Kinds Are There?
  7. Water Rights And Engineers
  8. California Water Right Holders Now Required To Have Measuring Device
  9. What Is Your Place Of Use?  (Where can you legally use your right?)
  10. Places Of Use – Adjudicated (Decreed) In The State Superior Court
  11. A Place For Permits And Licenses (Places of Use)
  12. Nothing Secret About It  (This is all public information.)
  13. Quick Change of Subjects: What’s a Water Right Permit Cost?
  14. Life Of Reilly: If You Can’t Measure It, You Can’t Manage It!
  15. How to Divide Up a Decreed Water Right – Part 1
  16. How to Divide Up a Decreed Water Right – Part 2
  17. Weirs – Planning, Building, Measuring Flows
  18. From weir to orifice in only an hour
  19. Chilean Water Rights at (darn near) the Driest Place on Earth
  20. Some Hope in Rain and Snow Totals
  21. Is John Stealing Water?? Orifices – Right Size and How to Measure
  22. Worried about SB 88? That’s what this blog is for! Get a device in, send a photo to the Board, record and report your diversions
  23. Flumes – installing for decades of flow measurement, Part 1
  24. Simple Weirs and Orifices, on video, and in photos!
  25. Diverters must report weekly, daily, or HOURLY starting 2017!

Worried about SB 88? That’s what this blog is for! Get a device in, send a photo to the Board, record and report your diversions

Worried about SB 88?  That’s what this blog is for!  Read here to select a flow measurement device, install it, send a photo to the Board, record your flows, and report them as required.  You will find most or all of the information you need in here.  If you need help, Rights To Water Engineering can help you meet the law quickly and at a relatively low cost.  (530) 526-0134

California Senate Bill 88 is effective as of January 1, 2016, 11 days ago as of this posting.  Here is the part that affects private or small agricultural diverters the most:

SB88_Art3_Clip

Some Hope in Rain and Snow Totals

Here is some hopeful news for California water supply – rain and snow totals for the year are at or a little above average, for the Central Valley Basin – The Sacramento-San Joaquin bowl that happens to contain one of the world’s greatest breadbaskets and salad bowls.  This information is measured and reported by the California Department of Water Resources.

Northern Sierra Precipitation so far this year:

nsp8s1_20151227

 

Southern Sierra Precipitation so far this year:

ssp8s1_20151227

 

California Snow Water Content, so far this year:

CSWC_20151227

 

 

Chilean Water Rights at (darn near) the Driest Place on Earth

California seems like a big place to me – I live here.  However, to cover the land surface of earth would take 400 Californias.  There are other places of interest on this celestial ball, like Chile.  What’s amazing about Chile?  The following information comes from various sources and I have not fact-checked it all:

  • 1/3 of all the copper in the world is mined here.
  • Easter Island and its amazing, huge head statues are part of the country.
  • It is a very secure country for residents and tourists.
  • It’s in the Southern Hemisphere (I hope that wasn’t a surprise!)
  • The world’s smallest deer, the pudú, is from there.
  • The people are extraordinarily friendly to visitors.
  • It has the driest “non-polar” desert in the world.  Drier than Death Valley in California??  Yup, it is:  The Atacama Desert in Chile gets 1/25 (0.04″) of an inch of rain per YEAR on average.

It is that last fact, about the Atacama Desert, that makes an amazing story about water rights.  Amazing to me, and hopefully to you, too.

Map of Chilemap_of_chile[1]

In March of 2015, there were very unusual, heavy rains in the desert, and sadly, over 100 people were killed.  Several cities were hit with floods, including the place of interest for this post, the City of Copiapó.

Atacama Desert, by Evelyn Pfeifferimage

The ongoing, increasing problem is not floods, but lack of water.  Of course generations of Chileans have learned to live with that so they have water year-round.  However, recent increases in copper mining have required proportional increases in the use of water as part of the mining process.  (My mining expert friend Mark can correct me here if needed).

Ironically, in 1981, Augusto Pinochet, the formidable dictator, changed the water code so the government has much LESS control, so water rights are much more free market.  Not only can mining companies pay much more, up to $750,000 per acre-foot according to Copiapó city officials, but they can use water than runs on their own properties for free.  [An acre-foot is 43,560 cubic feet of water, or 325,851 gallons – 326,000 gallons near enough, and the amount used by 1 or 2 families per year.]  Given that mining companies have bought a significant chunk of farm land with water rights, that gives the companies the lion’s share.  The increased pumping and new city wells are pulling in more brackish or salty water, at the same time that there is much less water available.

City of Copiapó, ChileCopiapó_atardecer_de_Otoño (1)

In California, city residents might pay up to $4,000 per acre-foot of water, roughly speaking.  I know I’ll get corrected by more than a few people on that.  The highest-profit agriculture might pay up to $1,500 per acre-foot of water.  San Diego’s desalination plant that is being built right now, is expected to cost residents maybe $1,200 per acre-foot of use.

Thankfully, our State’s founders wrote us a good Constitution; it specifies that all water must be used reasonably and beneficially.  Human health and safety are the highest priorities.  Somehow, some way, water gets to 99.99% of people even in a severe drought.  In addition, California is one of the great breadbaskets of the world, even in a severe drought.  Folks, we are blessed in the State of California!  Go see some of the rest of the world, and it will increase your appreciation of our abundance of water, and even thankfulness for our confusing, multi-basis, and to some people “oudated”, water rights system in California.

Dunes of the Atacama, by Evelyn Pfeiffer

The photo above could be of the Anzo-Borrego desert in southeastern California, but it’s from the whole lot drier Atacama Desert in Chile.