Category: What’s Your Right?

If you live on land subdivided from a farm or ranch with a water right, how much is yours? How can you figure it out? Is there a standard method or do you have to get an attorney and engineer? Knowing the “how” can save you time and money.

How to Divide Up a Decreed Water Right – Part 1

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

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_neighborsNow 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 the Internet address where the decree can be downloaded:  http://www.waterboards.ca.gov/waterrights/board_decisions/adopted_orders/judgments/docs/cowcreek_jd.pdfSCow_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.  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?
AP_Map_59-98_croppedAfter 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.  An appointment with Rights To Water EngineeringEx_2_Williamson_Parcel_Outline_on_DecreeMap_reduced   the next morning is their next step.  Within a couple of days, they have a nice report in their hands and answers to their questions.  So what did they find out?  That is an answer for the next post.

For now, good night to all….

 

Nothing Secret About It

A word on all the information discussed in this blog so far – it is all publicly available.  It is not all on the Internet, but it can be obtained by going to the right office or court.

For example, the South Cow Decree is available from the Board’s website.  That’s great!  However, last I checked, the maps are not available online, so a call to the Board might get you a copy or more likely, scanned PDFs of the maps.

http://www.waterboards.ca.gov/waterrights/board_decisions/adopted_orders/judgments/

swrcb_judgmentn_clip

If that doesn’t work, then a trip to the Shasta County Superior Court will be necessary.  This particular decree is not kept in a spot where a requester can wait in line.  A request has to be filled out, and then you go in a few days later, review the case box(es), note which pages you want copied, and pay for copies.

My last post (Permits and Licenses) listed what information is available on the Board’s website.  Additional information might be obtained with a phone call to the right person but folks at the Board usually have 5 times as much assigned as what they can get done.  A visit to Sacramento might be necessary to get all the info.

Ownership information is also publicly available.  It can be searched for free at the County Assessor Office, and in some counties, searched online, showing owners and sometimes even maps.  Various private companies make ownership information available, which is really handy if you want to know the owners and mapping of 10…or 100…or 1,000 parcels.   ParcelQuest is an excellent company, at parcelquest.com.  They have various purchase plans and subscriptions; last I checked, anybody with a credit card can get a subscription for $100/month ($150/month premium plan) and query and download ownership in any of California’s 58 counties.

I agree, it is unsettling just how much information is quickly available on each of us and our possessions.  Much of the information is free, and what isn’t can be had a little cost.  On the other hand, if you are trying to figure out what your existing water right is, or what the water rights are for land you might purchase, you can figure out half of it online in a few hours time.

Places Of Use – Adjudicated (Decreed) In The State Superior Court

For adjudicated or decreed water rights, the place of use is usually defined in maps created for an engineering report.  The State Superior Court (Court) in the particular County of the court case often uses these maps, making a few changes by text when the decree is finally issued.

In the South Cow Creek Decree (Decree), formally known as Shasta County State Superior Court Case Number 38577, the maps were created by a prior engineering report. This 1968 decree defined all water rights for South Cow Creek, Old Cow Creek, and their tributaries.  Maps show owners at the time the initial report was written, Sections divided up into 1/4 1/4 Sections (~40 acres each), points of diversion, irrigated lands, and other features.

South_Cow_Sht5_Hall_small

The clip above is from Decree Sheet 5, which is centered on the SW 1/4 of Section 13, Township 31 North, Range 3 W.  In the short hand of the Decree, it is the SW 1/4 (Section) 13 T31N R3W.  These were the irrigated lands of Jura Lawrence Hall.

 

South_Cow_Sch1_Hall_small

The Place Of Use is shown in Schedule 1 of the decree, excerpted above.  Each piece of the irrigated acreage is listed.  Some are footnoted is being “dormant riparian land”, not irrigated at that time.

 

South_Cow_Sch2_Hall_POD_small

The excerpt above, from Decree Schedule 2 shows the points of diversion for Hall, Numbers 78 and 79.  These diversions are shown as circled numbers with arrows on the map above.  In Schedule 2, the points of diversion are listed as being so many feet at some angle, distant from a Section Corner or other point.

So, the place of use and point of diversion can still be located on the ground today, with an error that might be as little as 20 feet, or as great as 300 feet (sometimes more than that.  This is enough to define where the court order, the Decree, allows water to be diverted and applied on the land that originally belonged to Jura Lawrence Hall.

 

The following excerpt from Schedule 6 shows the water rights for Hall.  There are first priority, second priority, and fourth priority rights.  Where exactly do these rights go, and what are they for?  That’s a story for a future post, more likely several posts.

South_Cow_Sch6_Hall_Allot_small

 

In this world, it seems that the only constant is change, and that goes for land ownership, too.  The aerial photo below shows ownership lines on Hall’s lands today.  Notice that there are 10 parcels, most with some portion of the decreed water right:

South_Cow_Sht5_Hall_Owner_Lines_2015_small

How are the water rights divided up?  Who gets some, and how much?  That falls under the heading of apportioning water rights, also a story for a later post.

It is interesting, isn’t it?  Now we start to see why there is some confusion about water rights, and who has them, and how they can demonstrate that.  As you might guess, there have been lawsuits since the original 1968 Decree to define the rights better.

Read Me My Rights

How do you know if you have a water right? Right up front, you know I am not a water rights attorney, and you may end up needing to consult one. There are some good ones. Make sure you go to an attorney who is…a water rights attorney, not an insurance attorney, or a workers comp attorney….house 20100222EAV2232

If you live in a town, city, county water district, or a number of other areas that provide water hookups or delivery by ditch, then you are relying on the provider’s water right. That may be any of the kinds of rights mentioned previously: riparian, rancho, pueblo, appropriative pre-1914, appropriative post-1914, groundwater, adjudicated, prescriptive (proven and adjudicated), or contract.

What if you own a place outside of town, and you have always relied on a well?
Might you have a surface water right? If you are on or near a stream, the answer is a definite “maybe”. Hopefully when you bought the place, the previous owner told you if the place has a decreed (adjudicated) right, or appropriative right, or some other water right.

If you never knew and wanted to find out, then the first thing to do is ask your neighbors. IMPORTANT: maintain good relationships with the peWilliamsons_and_neighborsople who live around you if at all possible. You never know when you need someone’s help, or want to borrow a tractor, or need to peaceably resolve a thorny issue…or get their likely-very-good idea of whether you have a water right, and how much it might be. A neighbor’s opinion is not proof, but someone who has lived in the area for 40, 50, 60 years probably has a good idea.

If your neighbors don’t know (or the relationship isn’t real friendly), the one-stop-shop for most water rights is the State Water Resources Control Board in Sacramento, or 59-98the “Board”. Get your County Assessor Parcel Number (APN), which is in your purchase documents, or probably can be found online by now in every California county. Call the Board at (916) 341-5300, tell the person what you need, and when you are forwarded to the person in the know, give him or her your APN. Write down everything you are told.

Hopefully you get to talk to a knowledgeable person who can tell you “yes” and what type of right. The Board tracks appropriative water rights: all post-1914 rights, and some pre-1914 rights. The Board posts most of the important court adjudications on their web site, so the person can probably tell you if you are in an area with decreed rights.

If the answer you get from the Board doesn’t seem right, you mMan working in ditch CostaDisc2-129 - Editedight call again and get a second opinion. If it still sounds funny, and you have asked your (friendly) neighbor, and checked your property deed for indications, then your best option is probably to consult a water rights attorney.

If you live on a stream or lake, or have a spring on your property, you most likely have a riparian right. Caution here – it’s not guaranteed. Your property has to touch, cross, or include the water body. Then, you have to check your deed on the very small chance the right was transferred to some other parcel. You may live one parcel away from a stream, and there is a very small chance your property has rights reserved, as evidenced by your deed, from when the original owner split off your property. Not likely.

South_Cow_Sht5_Hall_smallIf you live on an adjudicated stream, or at least your property is one of those in a decree on part of a stream, then the court has told you in writing how much water you can take, in what season. Typically these decrees cover the irrigation season, and some also define winter rights. If this is your case, your right is limited to what the court said.

If you ask the Board about your riparian right, the answer you get can vary from, “I don’t think you have any rights” to “You very likely have a right to what you can reasonably and beneficially use.” The person on the phone cannot be certain your property actually touches a water body.

In summary, it’s easy, right? Well, no it’s not. With this information, you have a process you can use to figure it out. Happy hunting!

Riparian Rules by Chuck Rich

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.

Water Rights And Engineers

What is “water rights engineering”? It is not litigating as an attorney, since I am not a lawyer. It could include design and construction of dams, diversion works, pipelines, pumps, and other water-related work.

Concerning water rights, land ownership may change after a water right is defined. Parcels are split so children can each have a part of the original ranch, or because the owner needs income, and a panoply of other reasons. What happens to the original water right?

Well, it depends. In many court adjudications, or decrees, the irrigation water right gets split up by how much of the original place of use is in each smaller parcel. Decrees may also have rights for other uses like domestic (household) use, stock water, storage in a pond or lake, instream fisheries, frost protection, industry, fire protection, and from years past, filling the water tanks in a train steam engine.

What kinds of water rights are there and where do they come from? More on that later.

All Water Rights, California

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