What’s Your Right? – All Water Rights

State Aims To Take or Control Your Water Rights: SB 389, AB 460, AB 1337

Three water rights bills are headed to the floor for votes, as of May 18, 2023. These bills propose to make water right holders prove their claims whenever the Water Board demands, inspect your diversion without your permission if the Water Board says it’s for public health and safety, and make senior (riparian and pre-1914) water right holders curtail their water rights. Your Farm Bureau, Cattlemen’s Association, and other groups are working to reduce these bills, and to encourage legislators to vote against them.

I summarize bill information below, and you should read the bill text yourself. Each bill name below is linked to the bill text at https://leginfo.legislature.ca.gov/. There are a few good newspaper articles; one is at the Modesto Bee.

SB 389 would make you have to prove your water right, regardless of whatever information you or previous holders of the right have submitted to the Water Board. Then the Water Board would decide whether you have a right at all, and what kind of water right you have. The Water Board would demand information including your use of the water including your measurement device, calibration, accuracy, photos, maps, quantities, all diversion data, etc.; the basis of the water right claimed; patent date claimed for the place of use; notice date of the appropriation and the date of actual delivery of water to beneficial use; prior diversions and use, including direct diversions and diversions to storage; and diversions and use of transferred water.

AB 460 would let the Water Board inspect your property with no warrant if they decide that public health and safety are at risk, and if you don’t voluntarily let them inspect. The Water Board could now issue you an interim order to stop diverting or take some other action, whether or not there is a complaint. The bill language is not clear on this, but it looks like the daily fines for violating “a term or condition of a permit, license, certificate, or registration issued by, or an order or regulation” would increase from $500/day to $1,500/day, up to $10,000/day. You could request a hearing within 20 days after being served with the complaint, but the Water Board could make an interim order before the hearing if they think that “immediate compliance is necessary to prevent imminent or irreparable injury to other legal users of water, or to instream beneficial uses.”

AB 1337 would let the Water Board curtail any water right at any time for any reason. This would include pre-1914 and riparian water rights. Also, it would let the Water Board continue its current practice of permanent curtailment, in which the Water Board lets you know each week that it’s okay for you to divert. The Water Board would continue to make you go check your curtailment status online each week.

What Can You Do?

Get all of your paperwork together. Whatever you have related to your water right, get it all in one place. Do this now, don’t wait for a call from the Water Board.
If you have a pre-1914 water right, you will need to have a copy of the original claim and any other related records from the Recorder at the county. Most have water right books with one or more indices to look up the original claim. Prior to 1910, most of them will be written in cursive, so they can take awhile to read and understand.
Make sure you have records of your water use. Ideally, there will be a diary, log book, or other notes recording what was grown each year and an estimate of the quantities. If you know the previous owner, ask for a note on when and how water was used. It is important to have documented water use at least every 5 years; this used to apply only to post-1914 water rights and the Water Board is now looking for this with pre-1914 water rights.
Upload digital copies of your most important records with your last Supplemental Statement (for pre-1914 water or riparian right) or Report Of Licensee (for post-1914 water right). Make things easy for the Water Board to find.
The Water Board posts your Initial Statement Of Water Diversion And Use on their website, along with the following Supplemental Statements. You may have more important records in your hardcopy water rights folder at the the Water Board. You can either go to Sacramento to review your folder, or request that your folder be scanned by a third party that you make arrangements to pay.

How to Divide Up a Decreed Water Right

Back in 2005, Arnold and Eileen Williamson bought property near South Cow Creek in Shasta County. They live in San Bernardino and plan to retire early, and build a new house on their land. The parcel is part of an old ranch just off Highway 44.

The Williamsons paid $220,000 for the 3.55 acre lot. That seemed high compared to similar parcels in the area, but they were assured the land has adjudicated water rights from South Cow Creek.

Arnold and Eileen brought their travel trailer to live on the land while they are building a new house. Their savings account is in good shape so they are going to build a nice 2,200 square foot, single story ranch house with a garage and a shop. They talked to a well driller 10 years ago and he assured them it would be easy to put in a well, for a cost of around $18,000. Williamson_Overview

When Arnold and Eileen went to get a permit to drill a well, they ran into unexpected problems. Parcels on either side have their septic systems close to the common property lines, so their possible well locations are few. Maybe a bigger issue is the passage of the Sustainable Groundwater Management Act in 2014. Will their pumping rate be limited, and will their well-drilling permit application get held up?

Now the Williamsons are checking into their surface water right. Is it enough for some pasture for horses and a few cows, in addition to the house and garden? The Turings who live on the east side say there are no water rights. The Poulans, to the west, say they have lived here for 6 years and they have never had water – they think the water right was bought off the place, or lost because of non-use. Williamsons_and_neighbors Now the Williamsons are upset and headed toward just plain mad. The real estate agent said they had rights, and didn’t the title companies insure it?? After a few frantic calls, they found out that title companies don’t insure water rights. But, their realtor gave them the number of some folks over on the north side of the highway, and they have a “decree map”. Arnold and Eileen head over to the Winters’ place to look over the maps. Brad and Jenny Winters even have a web address where the decree and maps can be downloaded: https://allwaterrights.com/some-decrees-maps/ The Water Board’s web page has the decree, but no maps: http://www.waterboards.ca.gov/waterrights/board_decisions/adopted_orders/judgments/docs/cowcreek_jd.pdf.

SCow_Sheet_5_screenshot

It turns out that the Cow Creek adjudication does not have maps, but an engineering report done a few years before the decree was issued does have the maps. Brad and Jenny have that report, too, so they have Sheets 1 through 5 showing the “Diversions And Irrigated Lands” on Cow Creek. Besides that, they have the link to where they can get the South Cow Creek decree, and a link to a blog that has the maps not on the Water Board’s web site: https://allwaterrights.com/some-decrees-maps/ Sheet 5 covers the area including the Winters and Williamson places. Sheet 5 has a lot of “irrigated lands” Leggett_Focus_Area according to the legend – the green areas.

By looking at the maps, and their Assessor Parcel Map they have in their escrow package, it sure looks like their property is completely within the green area. Great! Now, how do they figure out if they actually have a water right?

Arnold and Eileen wonder, can they figure this out themselves? Brad and Jenny tell them, they sure can, and there is a document online that explains how to do it: https://drive.google.com/file/d/0B8G8oUBnppMTdU1lbUotUDR4MlU/view. They take a look at it and see that, yes, the document fully explains the process, but it requires having either AutoCAD or GIS software. Also, it will take deep familiarity with the decree – and it is starting to look like a 3-day job just to understand it enough for their parcel! Arnold and Eileen don’t have the software or experience, so they decide it’s not worth their time to learn this…and they are not sure if they can do it right.

AP_Map_59-98_cropped After asking around, Arnold and Eileen figure out they will need to see an attorney. They call around and find out there are a couple of engineering companies that can see them faster, and they might cost less. They picked Rights To Water Engineering, Inc., to help figure out their water rights. Within a couple of weeks, they have a nice report in their hands and answers to their questions. So what did they find out? The map below is one of several from the report they got from the engineer, showing their property boundary on the 1965 decree map of irrigated lands: Ex_2_Williamson_Parcel_Outline_on_DecreeMap_reduced

The report cost $2,500. The engineer warns them that if it gets contentious and they can’t work out access to the water with their neighbors, they may end up having to get legal help. He recommends a couple of local water rights attorneys if it comes to that – there are some good lawyers who specialize in in water rights. For now, though, they have documentation they can discuss with their neighbors to work on getting their water right to their property.

Their property is on land that back in 1968 belonged to Howard and Gladys Leggett. It has an adjudicated second priority water right for irrigation equal to 0.063 cubic feet per second, or 28.5 gallons per minute, 24 hours a day, 7 days a week, from March through October. This 2nd priority right is less than the second and third priorities on the upper creek and tributaries, but it is the highest irrigation priority on the lower creek. Back when the property was flooded, that was usually enough to flood irrigate their entire lot to grow pasture or hay. That’s great news!

As natural flows drop during the summer that amount is reduced and everyone with a lower creek second priority has to reduce their diversion by the same percentage. In normal and wet years they could keep their pasture, hay, or whatever else they plant, irrigated for most or all of the irrigation season. And whether or not they use the water, the right does stay with the land and protect their property value; there is no provision for the expiration of water rights in the decree (the same as for nearly all surface water rights decrees).

What else was in their report? There was a cover letter, and next some excerpts from the decree. Schedule 1 lists the places of use for all the original owners. The Leggetts’ description takes up most of page 60; the Williamson’s property is on the 69.8 acres listed in the second paragraph for the Leggett land:

SCow_Sched1_Leggett_Places_Of_Use

Schedule 2 lists all the points of diversion, whether gravity diversions or pumps. The Leggett property actually could get water from two diversions, a pump from the creek, and a proposed second, movable diversion on the creek. That’s convenient – per the decree they could already divert their water from someone else’s existing diversion, or pump their water from Diversion 95, or they could get it from anywhere they can get agreement from the landowner! SCow_Sched2_Leggett_Points_Of_Diversion

SCow_Sched2_Leggett_Points_Of_Diversion_2

Schedule 6 lists the water rights for Lower Cow Creek – other schedules have rights for the upper creek and tributaries. This is interesting: there are four priorities of rights and this part of the Leggetts’ property has

SCow_Sched6_LowerSCC_Leggett_Allots_second_page

a 1st and a 2nd priority right. What does that mean exactly? The decree explains that 1st priority rights are domestic – houses and gardens. It’s a very small right and it is not clear whether or how it should be divided up among the all the subdivided parcels that used to be the Leggett ranch. The engineer noted it in the cover letter.

How was the water right calculated for the Williamsons? Using a geographic information system, or GIS, the engineer used his training and years of experience to precisely overlay the Assessor Parcel Map on the decree map. Then he measured the acreage for both, and prorated the water right by area. The following screenshots of the Excel spreadsheet shows these calculations.

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TractMgmtSheet_20151222_Arial_12_02_reduced

TractMgmtSheet_20151222_Arial_12_03_reduced

Time to fess up: this was a water right subdivision of a fictitious, made-up parcel of land, and the Williamsons don’t actually own it. However, this story is one that happens every day, when a landowner asks “How much is my water right, really? Can I divert for hay, stock, pasture, wildlife habitat, crops not mentioned in the decree, an orchard, ……… ?” Having information before arguing with neighbors, seeing attorneys, sending legal letters, and going to court, can help smart people who generally have good relationships work out happy and agreeable solutions. The Williamsons were smart and talked politely with their neighbors, the Turings and Poulens and Winters’s. Now they have a good basis to live peacefully in their neighborhood for many years, and Arnold can borrow Charlie’s lawnmower until he gets his own.

Ex_2_Williamson_Parcel_Outline_on_Aerial_reduced

Waste Water, or Get Cash For Excess?

Market part of your water, as a lease or sale, or divert it all and don’t risk losing your water right? That’s the question for thousands of Sacramento Basin smaller districts and individual diverters of even large water rights. The market for water can bring the water right holder $25 – $1,000 per acre-foot, depending on whether the buyer is a nearby neighbor or a San Joaquin Valley water district in a dry year. Photo_0057

When I was a DWR bureaucrat, my supervisor was experienced and wise. When he would talk to people at public meetings, or to neighbors who knew he was in the water world, sooner or later the subject of “sending all our water to Southern California” came up. His reply was, “You’re right, Feather River water is going to L.A., Sacramento River water is going to the San Joaquin Valley, and the excess of both goes through the Delta out to the Pacific Ocean. And you know what? Gravity does the job, not the government. If you want to keep water in Northern California, there have to be more dams.” Some folks understood and changed their minds, others kept on complaining.

Photo_0695 There are more reservoirs in the Sacramento Basin. They aren’t made of concrete, they don’t do flood control, and they’re not run by the state or federal governments. These reservoirs are the water evaporated, infiltrated, leaked, returned unused to the stream, or wasted at the diversions of many individuals, and some water and irrigation districts. Some of the excess water makes it back to streams, and some of it goes to the next diverter down the stream, but much is lost in the short term and unavailable for use by humans or the environment.

Yes, many surface water flood systems were designed this way, so runoff from one irrigator goes into the canal to the next. However, more flooded pastures are being leveled or converted to pivots to grow hay. Many other pastures are becoming orchards, with tight controls on incoming e coli from cattle or unwanted pesticides or herbicides. There is a huge opportunity to increase efficiency (pipe, sprinklers, etc), maintain better water quality.

How can anyone get a yield, or excess water out of those reservoirs? Lining ditches, converting to sprinkler instead of flood irrigation, changing the land use to a crop that has both higher value to the owner, and lower water use. 20200316_134127

I’m not saying that’s a bad thing that this excess water exists. In fact, it has the potential to do a lot of good, both for the upstream district, and for fisheries, and for other environmental needs, and for water users downstream or south of the Delta who don’t have enough water.

What is the good for the district or individual who is selling or leasing the water? Well, there is water not being directly used by stock, or being applied to crops, or directly needed for groundwater recharge. If some of that water can be saved, it can remain in the stream and used for all the other needs. Agricultural, urban, and environmental water users will pay for the saved water. That water can also bring in a lot of cash, that can be used for further farm or ranch efficiency, general improvements, or cash to keep in the bank.

Why don’t more irrigators with excess water market it? The number one reason is fear that somehow, California or the Feds will eventually take away the water right. That is a concern, but there are a bunch of people selling water right now who will tell you that their water right is still rock solid. The second reason is that we have always irrigated this way, so why should we change? Both the fear of loss and the unwillingness to change can be overcome with just a little bit of self-education. Plenty of folks have overcome their lack of knowledge to put together some valuable water deals.

wiki_800px-Well_spudder_8606 Lately, the Sustainable Groundwater Management Act, SGMA, is throwing in a lot of uncertainty. It’s true that radically changing diversion practices might change groundwater recharge, so that pumped water is not fully replenished. So, put together a small deal and see how that goes. Call it a trial for one or a few years. That will provide data on what the groundwater changes were due to the water deal.

What about those folks in the San Joaquin Valley who really need the water, badly? There is an element of taking care of our neighbor, and it ought to be part of the consideration. Who is our neighbor? Anyone that we can or do benefit.

There is a lot of opportunity out there, folks.

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.

How to Divide Up a Decreed Water Right

This post is an old version and has been updated here: https://wordpress.com/post/allwaterrights.com/4949

The Williamsons paid $220,000 for the 3.55 acre lot. That seemed high compared to similar parcels in the area, but they were assured the land has adjudicated water rights from South Cow Creek.

Now the Williamsons are checking into their surface water right. Is it enough for some pasture for horses and a few cows, in addition to the house and garden? The Turings who live on the east side say there are no water rights. The Poulans, to the west, say they have lived here for 6 years and they have never had water – they think the water right was bought off the place, or lost because of non-use. Williamsons_and_neighbors Now the Williamsons are upset and headed toward just plain mad. The real estate agent said they had rights, and didn’t the title companies insure it?? After a few frantic calls, they found out that title companies don’t insure water rights. But, their realtor gave them the number of some folks over on the north side of the highway, and they have a “decree map”. Arnold and Eileen head over to the Winters’ place to look over the maps. Brad and Jenny Winters even have a web address where the decree and maps can be downloaded: https://allwaterrights.com/some-decrees-maps/ The Water Board’s web page has the decree, but no maps: http://www.waterboards.ca.gov/waterrights/board_decisions/adopted_orders/judgments/docs/cowcreek_jd.pdf.

SCow_Sheet_5_screenshot

Arnold and Eileen wonder, can they figure this out themselves? Brad and Jenny tell them, they sure can, and there is a document online that explains how to do it: https://water.ca.gov/-/media/DWR-Website/Web-Pages/Programs/All-Programs/Watermaster-Services/Files/Water-Rights-Reapportionment-Method.pdf. They take a look at it and see that, yes, the document fully explains the process, but it requires having either AutoCAD or GIS software. Also, it will take deep familiarity with the decree – and it is starting to look like a 3-day job just to understand it enough for their parcel! Arnold and Eileen don’t have the software or experience, so they decide it’s not worth their time to learn this…and they are not sure if they can do it right.

AP_Map_59-98_cropped After asking around, Arnold and Eileen figure out they will need to see an attorney. They call around and find out there are a couple of engineering companies that can see them faster, and they might cost less. They picked Rights To Water Engineering to help figure out their water rights. Within a couple of weeks, they have a nice report in their hands and answers to their questions. So what did they find out? The map below is one of several from the report they got from the engineer, showing their property boundary on the 1965 decree map of irrigated lands: Ex_2_Williamson_Parcel_Outline_on_DecreeMap_reduced

The report cost $1,500. The engineer warns them that if it gets contentious and they can’t work out access to the water with their neighbors, they may end up having to get legal help. He recommends a couple of local water rights attorneys if it comes to that – there are some good lawyers who specialize in in water rights. For now, though, they have documentation they can discuss with their neighbors to work on getting their water right to their property.

SCow_Sched1_Leggett_Places_Of_Use

SCow_Sched2_Leggett_Points_Of_Diversion_2

SCow_Sched6_LowerSCC_Leggett_Allots_second_page

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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

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.
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.
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.
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.
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.
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.)
Riparian rights are not lost by nonuse of the water.
“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).
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.
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.
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.
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.

What Are The Surface Water Rights When Ag Land Subdivides?

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

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

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

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

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

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

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

Ex_2_Williamson_Parcel_Outline_on_DecreeMap_reduced In still other locations, none of the new homeowners wanted to use the water, either because there was a built-in municipal supply of pure or treated water, or because one or more private or community wells were drilled. The water right probably was not advertised as being available when the homes were built, and once the new owners were in, it became a lot more expensive to arrange pipelines across several neighbors’ properties to get a share of the surface water right.

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

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

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

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

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

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

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

Is John Stealing Water?? Orifices And Sum Of The Boxes

This is updated from a previous post, which was an example for a stream with adjudicated water rights. However, it also works for any stream where there are water rights with legally defined diversion quantities, if all the diverters have headgates in good condition and/or measurement devices such as weirs, flumes, and pipe meters.

Is John Stealing Water?? John Casey has a cattle ranch near Adin, where he grows pasture and hay to raise about 70 Angus steers. His ranch is 240 acres with lower irrigated land and forest on the higher part. He has an a licensed water right of 2.00 cubic feet per second (cfs) from Preacher Creek, to irrigate 80 acres, from April 1 to November 1.

John’s downstream neighbors claim he steals water. He says he can show that he takes only 2 cfs, or less when the flow drops down in the summer. Can he prove it? John_Headgate_edit

As we can see, he has a square headgate at the head of his ditch. It is 2.0′ wide, and can open up to 1.5′ high. Right now, John says he is diverting 1.05 cfs. His evidence is that his gate is open 0.15′, the water is 0.57′ deep on the upstream side, and the water is 0.20′ deep on the downstream side. Is that enough to check what he says?

The box in which the gate sits has smooth walls, and the gate closes flush with the bottom when John is not diverting. The water continues in a straight path from upstream to downstream. That means the weir has “suppressed” sides.

This is in contrast with, for example, a hole cut in the middle of a 2″ x 12″ weir board. The water on the sides has to make the turn to go straight through, so the hole in the board is an example of a “contracted” orifice.

Let’s look at the tables for orifices in the back of the Water Measurement Manual. Table A9-3 is for submerged, suppressed weirs. WMM_Table_A9-3_suppressed

We can’t see the downstream side of the weir, but the water is above the bottom of the edge of the gate, so it is submerged rather than free-flowing.

This table has flows calculated for a minimum area of 2.0 square feet (sq. ft.). However, the area of the opening at John’s headgate is 2.0′ wide x 0.15′ high, or 0.30 sq. ft. Fortunately, the equation, Q=0.70A(2g Δh)^0.5, is listed right at the top of the table. We can calculate the flow using that. Q is the flow in cfs, A is the area of the orifice hole, g = the acceleration due to gravity, or 32.2 ft/second^2 (feet per second squared), and Δh is the difference between the upstream and downstream water depth.

So the flow Q = 0.70 x (2.0′ x 0.30′) x (2 x 32.2 x 0.37′)^0.5 = 1.03 cfs. So far so good – John is taking 52%, or just over half of his right when 100 percent of flows are available. But, how much flow is actually available right now?

Let’s use the “sum of the boxes” method. Instead of measuring the amount of water in Preacher Creek at the top, before any diversions, and then estimating how much flow is being lost to evaporation, transpiration, and infiltration, and then estimating how much flow is subsurface above John Casey’s ranch and “pops up” out of the ground below, we’ll look at what each diversion amount is, plus the amount still in the creek after the last diversion. This is very useful because none of the instream losses have to be estimated – we just add the diversions and flow still in the creek, and that amount IS the available supply.

Water Board Permits and Licenses are usually not interrelated – they specify water rights without considering the other water rights on the stream. This is different from adjudicated streams, whether done by the Water Board or the Department of Water Resources. Some Superior Court judges in past decades were pretty smart and actually ordered that available flows be calculated by the sum of the boxes:

Susan_1_of_2_DecreeParaAvailWaterEqualsDiversions Susan_2_of_2_DecreeParaAvailWaterEqualsDiversions The paragraph above, from the Susan River Decree, defines available water supply as what is being diverted, plus the flow passing the last diversion.

There are 4 diversions on Preacher Creek, and here are the amounts being diverted:

Diversion 1 (John Casey) 1.03 cfs of a 1.60 cfs water right, 52% of his total right
Diversion 2 (Amy Hoss) 1.67 cfs of a 3.80 cfs water right, 44% of her total right
Diversion 3 (Mark and Cindy Sample) 0.55 cfs of a 0.88 cfs water right, 62% of their total right
Diversion 4 (Quint and Marcie Minks) 1.32 cfs of a 2.50 cfs water right, 53% of his total right
Flow still in the creek past the Minks Diverison – Quint estimates about 0.7 cfs

The total diversion-plus-bypass flow is about 5.3 cfs. The total rights on the creek are 9.48 cfs. Therefore, the total available flow = 5.3 / 9.48 = 56%.

So, John is right, he is not stealing water! He is taking 52% of his water right, when he could be taking 56% according to the “sum of the boxes” method. Not only that, but Amy could take more, the Samples should reduce their diversion, and the Minks’s could take a tad more. Well, that’s theoretical – Quint and Marcie Minks probably cannot seal up their dam completely, so there may be a little bit less flow actually available for diversion.

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:

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
Rancho rights granted by the government of Spain or Mexico, prior to Statehood in 1850
Pueblo rights, the one belonging to Los Angeles being famous
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
Appropriative post-1914, issued by the State Water Resources Control Board (Water Board)
Adjudicated, or decreed, from Federal District or State Superior Court
Groundwater from a well, similar to surface water riparian but for the overlying land
Prescriptive, which isn’t a definite right until decreed by a court
Contracts, which are not rights but rely on some already-existing right

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.

Rotation On 1 Farm; Between Diversions / Farms; And After Subdivision

This post is about individual water rights, not those that are distributed by a water district, irrigation district, water company, or other organization that can sell and assign shares of water. Side note: if your diversion is 100 AF to 1,000 AF per year, now (January-February) is a great time to get your measuring device installed and certified! Diversions of ~0.4 to 4 cfs take smaller devices – many can be installed between storms before the busy spring season. If you live on or farm a parcel that was subdivided from a ranch that had water rights, it will take you and your neighbors some planning and work to do to share the water equitably with your neighbors. This map shows multiple owners on land that used to belong to just one owner, H. Leggett, when the South Cow Creek Decree was issued by the Shasta County Superior Court in 1968.

Originally on the Leggett place, there wasn’t enough water to irrigate the whole ranch at one time. The water was rotated between one part and another. Maybe it took 10 days of turning the water into one field and then another, and after that there may be a to 10 day pause. Pixabay_water-340468_1280

Rotation also took place by agreement or adjudication between several diverters. Below is shown the northwest part of Sheet 5 of the South Cow Creek Decree. The green areas show the decreed irrigated acreage mostly in the correct spots. You can see that the H. Leggett was neighbors with A. Otten to the north, E. Frisbie and X. Shuffelberger to the northeast, H. Fraley to the southwest…and these diverters may have rotated and combined diversions to get a slug of water to push over a whole field quickly. One may have had water for 5 days for a larger farm, another for 2 days for a smaller farm, and so on. The rotation would have repeated through the irrigation season, with the time periods usually staying the same. That way, as natural flows decreased through the irrigation season, everyone shared the loss because they each had the same percentage for the individual irrigations.

Shasta Co. Sup. Ct. South Cow Ck. Decree Sht. 5, NW part

There is another kind of rotation that happens as land is subdivided over time. An original 800-acre ranch may be split into 10 parcels today. If the ranch originally had 4 main ditches, many of the parcels today don’t touch a ditch. What’s the solution?

When a bunch of smaller, feeder ditches are put in, then most of the water will soak into the ground before it gets to the parcels it is supposed to irrigate. If instead, landowners agree to get water for, say, 40 parcels

sierra_vly_sht_5_sierraville_area-edited — Sierra Valley Revised Decree Map, Portion Around Sierraville

at a time, then a higher volume of water may be pushed across all of the properties before it is sent to the next group of landowners.

Of course, investment in infrastructure, such as lining or piping ditches, might
make water available to most of the people for most of the time. Rotation can be alleviated by more and better plumbing. The monetary cost is higher, sometimes much higher, but getting more water overall can be worth a lot. Not having to be home on all rotation days is worth something, too.

Hat Creek Shearin Tract, from August 2014 Revised Decree Map

What happens when a subdivision is built on what used to be a farm or ranch? In some cases, new owners have invested in pipelines to keep rotating the water between the smaller parcels, or supply all parcels at once if the pipelines increase efficiency enough. In other places, some new owners use water, others don’t, which is fine as long as a new owner doesn’t complain loudly. The map above is from the revised Hat Creek Decree map, showing one original ranch that subdivided into 60 + parcels. Some parcels get surface water from the ditch, other, newer owners have put in a few pumps and pipelines to ensure decreed water rights are available to smaller parcels today.

In still other locations, none of the new homeowners wanted to use the water, either because there was a built-in municipal supply of treated, safe water, or

Subdivision - Photo Credit: Pixabay — Subdivision – Photo Credit: Pixabay

because one or more wells were drilled. No water is diverted, so none is rotated. The existence of surface water rights probably was not advertised when the parcels were purchased, and once the new owners were built homes, it became too expensive to arrange pipelines across several neighbors’ properties to get a share of the surface water right.

In summary, rotation has been part of most farms and ranches since the beginning. Physical rotation of a water right on subdivided parcels takes forethought and planning. It is least expensive when new ditches or pipelines are installed before the new parcels are built out in houses and businesses.

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