Riparian Rules by Chuck Rich

An oldie but still the best summary of riparian rights that can fit on both sides of an 8-1/2″ x 11″ sheet of paper:

Riparian Rules by Chuck Rich, State Water Resources Control Board, 2007

GENERAL RULES GOVERNING THE EXISTENCE OF AND
USE OF WATER PURSUANT TO RIPARIAN CLAIMS OF RIGHT

  1. A riparian right exists by reason of ownership of land abutting upon a stream or body of water and affords no basis of right to use water upon nonriparian land.
  2. A parcel of land generally loses its riparian right when severed from the stream channel via a parcel split (i.e., “physical severance”) unless the right is specifically reserved for the severed parcel in the deed of transfer or other conveyance document. However, the California Supreme Court has held that where a physical severance has previously taken place, if the severed tract was receiving water from the creek at the same time the conveyance created the severance, that fact can be used in court to argue that the grantor and grantee did not intend any severance of riparian rights notwithstanding the physical severance, and the riparian right might be preserved as a result – if the court so decides. The riparian right also may be lost when transferred apart from the land by grant, contract, or condemnation. Once lost or severed, the riparian right can NEVER be restored.
  3. Riparian water right holders may only divert a share of the “natural streamflow” of water in the stream. “Natural streamflow” is the flow that occurs in a watercourse due to accretions from rainfall, snowmelt, springs and rising groundwater. To the extent that flow in its natural state reaches or flows through their property, riparian right holders have a proportional right, based on need, to the use of the natural flow.
  4. A riparian right does not allow diversion of water that is foreign to the stream source. Water that is: a) imported from another watershed; b) stored and subsequently released later in time into the stream system from upstream dams; or c) irrigation runoff generated from the application of percolating groundwater applied to upstream lands; is not available for diversion under a riparian claim of right.
  5. Water diverted under claim of riparian right may only be used on the parcel of land that abuts the stream – – unless the severed parcel’s riparian status has been somehow retained (see #2 above), and then only on that portion of the parcel that drains back into that portion of the stream from which the water was originally diverted.
  6. In order to divert water under claim of riparian right, the diverter must use the water on riparian land but need not own the land at the point of diversion. That is, the diversion may be made at a point upstream (or downstream) from the land being served so long as permission is granted to use that point of diversion and intervening land owners between the point of diversion and place of use are not adversely affected by such practice. However, water cannot be diverted upstream or downstream under a riparian claim of right if this water would not have reached the diverter’s land in the “natural” state of affairs. (In other words, the land is only riparian to the stream when the stream, in the natural state, would actually reach or touch the parcel in question.)
  7. Riparian rights are not lost by nonuse of the water.
  8. “Seasonal storage” of water cannot be accomplished under a riparian claim of right. “Seasonal storage” is generally defined as the collection of water during a period of excess flow for use during a period of deficient flow. However, water may be retained for strictly “regulatory” purposes. “Regulatory storage” of water means the direct diversion of water to a tank or reservoir in order that the water may be put to use shortly thereafter at a rate larger than the rate at which it could have been diverted continuously from its source. Regulatory ponds should generally be drained at the end of the season of use (e.g., irrigation season).
  9. If there is insufficient water for the reasonable, beneficial use requirements of all riparian owners, they must share the available supply. Apportionment is governed by various factors, including each owner’s reasonable requirements and uses. In the absence of mutual agreement, recourse to a determination in the Superior Court may be necessary.
  10. The riparian diverter is subject to the doctrine of reasonable use, which limits the use of water to that quantity reasonably required for beneficial purposes. The method of diversion and conveyance must also be reasonable and non-wasteful.
  11. A diverter who possesses a valid riparian claim of right does NOT need to obtain a permit from the State Water Resources Control Board for the act of diverting water. However, any alteration made to a natural channel in order to divert the water will probably require acquisition of a “streambed alteration agreement” from the Department of Fish and Game and may require a Section 404 Permit from the Army Corps of Engineers or a waste discharge requirement from the appropriate Regional Water Quality Control Board. Compliance is also required with any other local, state, or federal requirements regarding construction and operation of the diversion facilities.
  12. Water Code section 5100, et seq. requires that a “Statement of Water Diversion and Use” be filed with the Division for any diversion under riparian right if no other entity reports this use. As of 2007, there is no charge to file this document and forms are available upon request from the Division of Water Rights.
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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:

**********************************

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:

A018405_ewrims_lic_pg1_purpose_amtPermits 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 - Editedrights, 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_reducedIn 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_DecreeParaAvailWaterEqualsDiversionsSusan_2_of_2_DecreeParaAvailWaterEqualsDiversionsThe 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:

  1. Riparian – a parcel that touches a stream, spring or lake may use a ” reasonable and beneficial” amount, quantity and rate undefined, per the California Constitution, Article X, Section 2
  2. Rancho rights granted by the government of Spain or Mexico, prior to Statehood in 1850
  3. Pueblo rights, the one belonging to Los Angeles being famous
  4. Appropriative in 1913 and prior, aka “pre-1914”, for parcels not touching a body of water, which started with gold mining and is now mostly for agriculture
  5. Appropriative post-1914, issued by the State Water Resources Control Board (Water Board)
  6. Adjudicated, or decreed, from Federal District or State Superior Court
  7. Groundwater from a well, similar to surface water riparian but for the overlying land
  8. Prescriptive, which isn’t a definite right until decreed by a court
  9. Contracts, which are not rights but rely on some already-existing right
Photo Credit: morguefile.com

From conversations with a reliable source, I found out that the Water Board made two runs at standardizing water rights in past decades.  Water right holders would have had 20 years to prove their rights, then all of them would have been rolled into one class or type of water right.  There would still be dates of first use, priorities, and so on, but the Water Board would have authority over all of the rights.

So what happened?  It didn’t work.  The leaders of a large water organization contacted their legislators and said, “Hey, this standardization process might affect our rights.  We don’t want that, so please yank the Water Board’s funding for this effort.”  And that was that, and perhaps that was best for most water right holders in the state.

Besides that, the Water Board has tried a few times to cancel riparian water rights, as part of adjudications of all water rights in a watershed.  The resulting lawsuits undid the Water Board’s actions, and riparian water rights are still the law today.

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 Williamson_Parcel_Outline_on_DecreeMap_reducedrights, 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
  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 sierra_vly_sht_5_legend-editedditches 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
  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. 

But What About MY Water Right? I Don’t Care About Someone Else’s.

Senior Rights
  Water Rights Certificate. Photo: Los Angeles Daily News

Do you have a water right?  Then that is the one you care about.  General information is interesting, but not too useful or relevant.  When it comes down to it, your water right is the one you have to understand eight ways from
Sunday, and your water right is the one you have to defend.

But look at rights from another angle.  What rights do we as citizens of the United States all have, that we all really need to know?  Every U.S. citizen wants to be able to say what he wants, go to church or not, and attend political and protest meetings.  Where does it say that the federal government cannot prohibit or compel certain speech, church participation, and attend political meetings?

Of course you know that these rights are protected by the Bill of Rights, the first 10 amendments to the U.S. Constitution.  Most of us learned this before we got

http://www.educationviews.org/law-protect-free-speech-top-churchman/
Free Speech Protest. Photo Credit: educationviews.org

to high school.  482 short words protect your and my freedom of religion, speech, press, assembly, and petition; right to keep and bear arms; right not to be forced to quarter soldiers; freedom from unreasonable searches and seizures; right to due process of law, freedom from self-incrimination, freedom from being tried twice for the same allegation; rights of accused persons, (speedy and public trial); right of trial by jury in civil cases; freedom from excessive bail, cruel and unusual punishments; other rights of the people; powers reserved to the states.

Imagine having your house searched and not knowing what rights protect you.  How could you demand that soldiers do not forcibly enter your home, without

Warrant Sign, Photo Credit: 24hourbrowardbailbonds.com
Warrant Sign, Photo Credit: 24hourbrowardbailbonds.com

any knowledge of the 3rd Amendment?  Or, imagine being arrested during a traffic stop because you refused to let police search your vehicle.  What if you didn’t know anything about the 4th Amendment, which protects you against unreasonable searches and seizures?  How quickly life, liberty, and property can be lost when the accused does not know his or her constitutional rights!

How does this relate to water rights?  Who knows, you or one of your family might buy land with a different kind of water right.  If you have a summary understanding of water rights, you’ll be in a lot better place to know what the right is worth, how much water you might really get, and when.  What if an attorney or a government agency tells you that your property lost its water right – how could you even know you have an argument without some basic understanding?  Even when landowners get legal help, it can be pretty expensive…where knowing in advance could save hassle, time, and money.

One of my earlier posts has a bullet list that can be memorized, or printed on a card for a wallet or purse:

  1. Riparian – a parcel that touches a stream, spring or lake may use a ” reasonable and beneficial” amount, quantity and rate undefined, per the California Constitution.
  2. Rancho rights granted by the government of Spain or Mexico, prior to Statehood in 1850.
  3. Pueblo rights, the one belonging to Los Angeles being famous.
  4. Appropriative in 1913 and prior, aka “pre-1914”, for parcels not touching a body of water, which started with gold mining and is now mostly for agriculture.
  5. Post-1914 appropriative rights  issued by the State Water Resources Control Board.
  6. Adjudicated, or decreed, from Federal District or State Superior Court.
  7. Groundwater from a well, similar to surface water riparian but for the overlying land.
  8. Prescriptive, which isn’t a definite right until decreed by a court.
  9. Contracts, which are not rights but rely on some already-existing right(s).

Please leave a comment, correction, complaint, humor, or other message below:

For comparison purposes, here is the United States Bill Of Rights, conveniently available on the home page of the Bill Of Rights Institute:

Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the

U.S. Constitution, Photo Credit: constitution.org
U.S. Constitution, Photo Credit: constitution.org

government for a redress of grievances.

Amendment II
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment III
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

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?