Quick Change of Subjects: What’s a Water Right Permit Cost?

What does it cost to get a surface water right?  If your land is not riparian to the stream where the water is, or maybe one parcel is but your other 5 parcels are not, then you’ll need to file for a (Post-1914) appropriative right with the State Water Resources Control Board.

Let’s say you want to irrigate 50 acres of new almond orchard in the Sacramento Valley.  How much water do you need for micros-sprinkler irrigation?  Let’s use the value for a 5-year-old orchard, about 3.33 acre-feet (AF) per year for irrigation and frost protection.  That number comes from the U.C. Davis Report Sample Costs To Establish An Orchard And Produce Almonds Sacramento Valley – 2012, at http://aic.ucdavis.edu/almonds/cost%20studies/AlmondSprinkleSV2012.pdf ,

The total annual volume of water for 50 acres is 3.33 * 50 = about 167 AF/year.  That equates to a constant flow of 0.03 cfs.  But, you probably irrigate one day per week, so 7 times the average rate = 0.21 cfs. So, in your permit application, you would need to apply for 167 AF/year, diverted at a maximum rate of 0.21 cfs.

To get the rate for filing for a permit with the Board, we need to check the fee schedule:   http://www.waterboards.ca.gov/waterrights/water_issues/programs/fees/docs/fy15_16_fnl_fee_schd_sum.pdf

So your application fee would be \$1,000, plus \$15 per AF over the first 10 AF.  Your cost would be \$1,000 + (167 AF – 10 AF) * \$15/AF, for a total of \$3,350.  There is also an annual cost:

Your annual fee would be \$150 + \$0.063 per AF over the first 10 AF.  Your annual cost would be \$150 + (167 AF – 10 AF) * \$0.063/AF, for a total of \$160/year.

Of course, these costs are if it’s a “slam dunk” and there are no complications.  There would likely be a 1602 permit required by the California Department of Fish and Wildlife, and there could be other permits.  If anyone contests the application, then you would have more fees (see the schedule), perhaps attorney fees, and perhaps a negotiation to use water from someone else’s diversion.

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.

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.

A Place For Permits And Licenses

A Permit or License is required to hold Post-1914 water rights issued by the State Water Resources Control Board. An Application starts the process, then the right is permitted, and once proven, licensed.  This is the engineering summary of the process, not as precise or detailed as an answer from an attorney or a bureaucrat.

Let’s take a look at a license.  All of the information shown here is publicly available and it was downloaded from the Board’s website.  Note that the License has 3 identification numbers, all of which are important:

Application:  18405          Permit:  13122          License:  12363

From the language in the body, it is clear that the first use of water at this location was in 1958.  An Application was filed at some point, and proof of the claim was established in 1979 when the Board inspected the diversion.  A Permit might have been issued at the same time in 1979 – that information is not listed here.  Finally in 1988, the water right holder obtained the License.

Now to the subject of this post, on Page 2 the Place of Use is listed.  The clip below shows the end of Page 1 and the start of Page 2:

The place of use is defined as  1) at the reservoir, and  2) on 357.7 acres somewhere within 3 Sections, an area totaling about 1,900 acres.  The clip above also lists the point of diversion, and the purposes of use, but we’re focusing on the Place of Use right now.  Let’s go look at the map.

Whoops!  This License was downloaded as a PDF from the Board’s Electronic Water Rights Information Management System (eWRIMS) website at http://www.waterboards.ca.gov/waterrights/water_issues/programs/ewrims/index.shtml The thousands of downloadable permits and licenses in the database do not include the maps, as far as I have ever seen.  To get that, we would have to visit the Board’s office in the CalEPA building in Sacramento.

However, there is also an eWRIMS Geographic Information System (GIS), in addition to the database.  We can see the location of the diversion on either a  topographic map, or on an aerial photo.  Here’s what that looks like:

The pink text in the middle of the photo is where the GIS shows the diversion for this License.  What is the Place of Use?  That is not shown.  With some other information, like who owns the surrounding parcels of land, and maybe a telephone call to the owner, manager, or representative, we could probably figure out where the Place of Use is.

However, land can change hands so the owner shown on the license may no longer be correct.  Sometimes parcels get split up and one of the present-day owners pays for the permit covering the entire Place of Use.  It can get complicated without seeing the original hardcopy of the map.  The owner might not even have a copy of the map, especially if ownership has changed hands several times.  It’s good to memorize or keep on a Post-It the number for the Board: (916) 341-5300.

That’s enough for this post.  Stay tuned for upcoming posts on the Place of Use, Purpose of Use, Point of Diversion, and water right amount….

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.

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.

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.

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.

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:

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.

What Is Your Place Of Use?

Where can I use my water right?  Can I change the location, or make it bigger?

Water rights most often have a place of use.  The place of use may be defined in a court decree or adjudication, and shown on an associated map.  In most court decrees, the place of the use for a water right is “forever”, unless another case comes up to change that place.

For pre-1914 rights which are not part of a court decree, the place of use is defined…somewhere.  Hopefully the water right holder has an old map, or evidence that the farm or ranch has the same boundaries today that it did when water started being used.  The map might be in the attic, or someone may have sent a copy of the map to the State Water Resources Control Board.

Riparian rights belong to parcels touching a stream, natural lake, or spring.  The requirement for us is that it be reasonable and beneficial.  So the place of use might be a whole parcel of ownership, or part of it, but the place of use cannot be off that parcel.  Riparian rights are defined by the California State Constitution, but the place of use is not defined except that it has to touch the water.

Post-1914 rights issued by the State Water Resources Control Board, and used under a permit or license, have the place of use defined.  It might be by 1/4 1/4 Section, or 40-acre pieces.  It might be by coordinates in a surveying system, such as the California Coordinate System.  Sometimes there are maps with permits and licenses, sometimes not.

This is a quick summary of the concept of place of use.  We’ll go into more detail later, with some examples.  For now, good night to all.

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….

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 people 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 the “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 might 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.

If 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!

Reasonable And Beneficial Use Depends On Who You Are

As far as water rights go, what is “reasonable and beneficial use”? The California Constitution, Article 10, Section 2, says, in part: “…The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water….”

That’s pretty clear, isn’t it? Use of water has to make sense and we can’t waste it. The question you are probably asking right now is, who defines the good and bad use of water?

In 1849, The Gold Rush! Starting in the year 1849, prior to California becoming a State in 1850, it was reasonable and beneficial to move a lot of gravel, sometimes whole streams, and sometimes considerable portions of mountains to get gold.

Along with ounces, pounds, and tons of gold found, came a whole lot people than there were before. As the proportion of gold miners to State population decreased, the weight of public opinion changed. Wasn’t it a shame to fill up good rivers with so much gravel that a steamboat could not get through? And weren’t the gnawed-out mountains ugly? Use of monitors was the first, biggest use of water declared to be unreasonable.

Over time, the mines played out and water went more and more to ranches and farms. This is definitely reasonable and beneficial. California became the bread basket and salad bowl of the nation. With more people, land was developed faster, and more water was used.

And you know what happened next. Fish populations in streams decreased, and more focus was put on non-farm uses of water. As dams went in, the miles of natural streams decreased. The fight over water went from who gets the first the mostest, to also arguing how much should be left in creeks and rivers.

In these photos, one shows the whole flow of a creek being diverted to irrigated pastures. In 1940, that was the best use of that water in this part of the State, except if it cut into someone else’s diversion right. Today, a lot of people think the natural stream is best, with no use by people.

So “reasonable and beneficial” depends on when and where you were, and how scarce the water is. Scarcity includes what’s left over after everyone else has rights.

“Good” use of water changes as society changes. In 1900, 90% of people in the USA lived on farms, and 10% in cities. In 2000, 10% lived on farms, and 90% in cities. California was more like 7% vs.93% – it is no surprise that this wholesale change in who we are also changed what is “reasonable and beneficial.” More on this later….