How can large diversions be measured? Long-throated flumes are a good option, especially if the ditch has low banks, or a lot of sediment or debris could clog a weir or orifice. Premanufactured Parshall or Replogle flumes go up to around 20 cubic feet per second (9,000 gallons per minute). If they are made for larger flows than that, they are prohibitively expensive to ship or manufacture.
Recently, though, Watchman long-throated flumes have become available. They are made in Northern California, so shipping costs are lower. They typically go up to 20 cubic feet per second in size, but I have installed a 30-cfs Watchman flume. The manufacturer can easily make larger-capacity flumes, too – standard plans go up to 60 cfs, and they can be shipped in ready-to-assemble sections for up to 200 cfs.
Watchman flumes are made of 10-gauge steel, a little thicker than 1/8 inch. The premanufactured flumes I have seen ship from outside the state are made of 16-gauge steel, which is about 1/16″ thick. These can work well if care is taken during installation, but the Watchman’s heavier gauge steel can withstand more backfill and rougher treatment. They’ll last longer, too.
What about cost? It turns out that Watchman flumes are about the same cost per cubic foot per second, as flumes made from lighter-gauge steel. Some farmers and ranchers like concrete better than steel. Watchman flumes can be built inside Briggs pre-cast concrete rice boxes and weir boxes, if you need an installation to last for 30 years or more.
Where can you buy these? The manufacturer does not advertise – let me know and I can put you in touch with them.
This is a question that comes up all over California, every day. It usually comesin one of two ways:
I’m about to buy some land. Will I have a water right if the previous owner did not use it for X years ?
My neighbor hasn’t used his right in X years. He lost it, so I can use it, right?
The short answer is yes, an appropriative, post-1914 water right can be lost. Court-decreed water rights, riparian rights, and pre-1914 cannot be lost – usually. We’ll discuss those cases later in the post. What most people are thinking of is the provision from WATER CODE SECTION 1240-1244:
1241. If the person entitled to the use of water fails to use beneficially all or any part of the water claimed by him or her, for which a right of use has vested, for the purpose for which it was appropriated or adjudicated, for a period of five years, that unused water may revert to the public and shall, if reverted, be regarded as unappropriated public water. That reversion shall occur upon a finding by the board following notice to the permittee, licensee, or person holding a livestock stockpond certificate or small domestic use, small irrigation use, or livestock stockpond use registration under this part and a public hearing if requested by the permittee, licensee, certificate holder, or registration holder.
“Board” means theState Water Resources Control Board. The emphasis on “may” and “if” is mine, and it is important. Loss of a water right under this provision is not automatic. It takes a complaint by someone to get it started, just as it takes a complaint for someone to get a water rights case heard by the judge of a Superior or Federal Court.
Then, if the water right holder protests that yes, he or she has diverted water during the last 5 years, it’s up to the complainant or the Board to prove that water was not diverted. This might be from yearly photos of the land in question (rare), testimony by several neighbors;, or a lack of records from the water right holder, showing that there was indeed a crop, pasture with cattle, hay, or some other beneficial use; or some other evidence.
Let’s consider riparian rights and then put that discussion aside. A riparian water right cannot be lost for non-use, since it is established by the Constitution of the State of California. Riparian rights are not being considered here, and they are discussed in greater detail in the post Riparian Rules by Chuck Rich.
How does someone know that their water right may be on the chopping block? They will have already had phone calls and probably visits from Board staff. There should be no surprise at this point. Then, the Board will send a letter that starts something like this:
There is an opportunity to dispute the assertions in the letter, and a water right holder can request a hearing (or hearings) before the Board. If the alleged non-use is not a watertight case, the process can take a year or longer.
What if the water is a pre-1914 water right? Can it be lost? The answer used to be a fairly solid “no”, but the Board’s authority has increased in recent years. It is harder to lose a pre-1914 right but the best defense is having used it at least once in the past five years, and having some proof it was used.
What if the water right is part of a State Superior Court orFederal District Court decree* or adjudication? Interestingly, very few decrees have ANY provision for expiration of water rights. In addition, courts usually maintain jurisdiction of these cases, so that any following petitions or lawsuits over decreed water rights must go back to court. In essence, this makes decreed rights “eternal” or permanent, unless the rights are changed in a subsequent lawsuit. *Statutory adjudications where the Board issued an Order of Determination, and then took it to the Superior Court to be adjudicated, might be easier for the Board to bring before the court for a revocation action.
What does the Water Board think about that? Board staff assert that they have “concurrent authority” with State Superior Courts. That means they have equal power over water rights.
Some at the Board say they have authority over the same water rights that the court does. Is that true?
Let’s say that it is true. Has the Board ever asserted its authority over decreed water rights in court? The last few times I asked Board staff, the answer was “no”. So it may be true, but as far as I have heard, it has not been tested. So, no, decreed rights cannot be revoked by the Board without going to court.
What if a water right is managed by a water district, irrigation district, or other agency? It boils down to, who owns the water rights? If the district or agency owns them, then they can usually reassign them because of non-payment, and for some other reasons, too. If the landowners own the water rights, then all the preceding paragraphs of this post apply. The agency or district just wheels the water, for which they can collect fees for operation (labor) and maintenance if their bylaws allow.
Summarizing the subject of losing post-1914 appropriative water rights for five years of non-use, then, they can be lost if the water right holder admits it, or if there is good evidence that water has not been used. Pre-1914 rights are harder to lose but it can happen. The Board cannot revoke riparian rights because they are defined in the State Constitution. Court-decreed rights cannot be revoked by the Board without going to the court with a petition or as part of a lawsuit.
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:
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 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?
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.
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
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.
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?
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.
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:
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.
Diverters and reservoir owners have been wondering, when is water level logger or meter data supposed to be filed with the Water Board? I checked with Jeff Yeazell, our public contact at the Water Board. Folks will be able to file data with their annual reports in 2019, so you’ll do it while you are already in the Report Management System to file your Reports of Licensee (due April 1) or Supplemental Statements (due July 1). The new forms will likely be available in January of 2019.
Jeff is a great guy, knowledgeable, very responsive, and easy to talk with, so you can be reassured you’ll get a response and most likely an answer if you contact him. His email is Jeffrey.Yeazell@waterboards.ca.gov and you can call him at (916) 341-5322.
The Water Board requires diversions and storage over 10 acre-feet per year to be recorded, per SB 88, other state laws, the California Water Code, and agency regulations. Data must be recorded monthly, weekly, daily, or hourly, depending on the size of the diversion or reservoir:
But we don’t live in a perfect world. Things will go wrong. Whether you record data by hand in a notebook, or a data collector records data electronically, data will get lost. Why not just use a notebook or phone camera? That works when the data collection interval is monthly, and might work for weekly.
However, if diversions are over 100 AF or storage is over 200 AF per year, data must be collected daily, and diversion or storage of 1,000 AF per year or more requires hourly data collection. That daily or hourly interval makes electronic data collectors of some kind a requirement to have the data and avoid those fines of possibly $500/day.
We’re all busy, so we have to make time to spend half a day or more downloading loggers 2 or 3 times each year. The leaves the possibility of data loss between the times data is downloaded. Why not download data once a month, or weekly? That’s not doable for ranchers and farmers who are already spending long days just to try and make a profit.
At some point, data will be lost. You could just use the last measured value for all the intervals that were lost, but in reality storage volumes change based on rainfall, evaporation, stock and wildlife use, and releases. Diversions change based on available flows in the stream and changes in irrigation, stockwater, or other uses at the place of use. Sometimes diversions are maxed out for a day or two for filling a ditch or flooding up, and other times they are shut off for haying or maintenance.
How will you tell the Water Board that data is lost, even though you did your level best to do everything rig
ht? Perhaps data was downloaded in February, June, and October…but the fields for February 15 through June 10 are blank.
As always, if you are behind the 8-Ball, communicate early and often. Jeff Yeazell is the public contact outside of the Delta, and Jeff is scrupulous about replying and hanging on to emails. If you’re really worried, include someone else in an email. Notice I said “email” and not “phone”. Phone calls are a lot more work on the receiving end, and information can get lost more easily.
Of course, also take extraordinary steps to recover the data. Maybe an expert can try a few things to get the data off the unit. You might have to send it to the manufacturer and see if they can download it.
Be diligent, check setups twice and three times, save downloaded data in 2 places immediately after downloading, download as often as you can, and otherwise be diligent and careful. In the end, though, data will be lost, but don’t panic. Communicate early, often, completely, and repetitively. Keep estimates or spot-check notes throughout the year, and use those to fill in gaps if you have to.
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.
Onset has a neat Bluetooth Hobo water level logger. The MX-2001, with the cap removed, hooks up to the MX-2001-TOP with a cable, and once installed, is
downloaded with the free Hobomobile smartphone app. The app does everything you’d normally need a data shuttle and cable for – starting, setup, configuration, downloading, and stopping the logger.
The top unit with the Bluetooth radio has to be out of the water, so of course the top of the stilling well holding the unit has to be 1.0 feet or higher up out of the water. If the stilling well is galvanized iron pipe, you’ll need to get within a few feet to download it. If you are using PVC you might get a connection at 100 feet.
Will two units close to each other interfere? Nope, the app finds both and lets the user choose which unit to work with. As with any water level logger installation, keep a logbook or spreadsheet with the Serial Numbers for each location so you aren’t confused later.
What about barometric pressure? The TOP unit records barometric pressure, so you don’t need a second unit for atmospheric pressure, nor do you have to know the elevation difference between two separated units. The unit subtracts atmospheric from absolute pressure, then gives you all 3 values when you download: absolute, atmospheric, water only. That makes data processing much easier.
In California, you should be able to get one of these shipped to you for $750. Compare that to the regular Hobos, which need one in the air, one in the water, and a data shuttle and cable. It would put you back almost $1,000 to get the separate pieces shipped to you. If you have two or more locations to log, then the old style is less expensive as far as parts go. Still, the Bluetooth version is likely more cost effective when you consider the minutes saved each time the Bluetooth unit is downloaded, compared to unlocking or unscrewing the cap, getting the water unit out, downloading it, and replacing the cap or lock.
If you have a reservoir, the Water Board requires you to measure and report: how much you divert to it, how much water you store in it by month, and how much water you release if the pond has a controllable outlet. It is usually not possible (or at least not feasible) to measure the inflow, so what is actually reported is the monthly positive change in storage, the amount that fills it up.
If your reservoir is less than 10 acre-feet (AF) per year, you only have to report it. Measurement is not required.
How do you know how much is stored in your reservoir? Each pond needs an elevation-storage table or curve, as the Water Board calls it. Engineers call it an area-capacity table or curve – that’s what I created during part of my career as a water bureaucrat. I’ll use the Water Board’s terminology here since water diversions and storage are reported to them.
First check to see if the Water Board or Division of Safety of Dams has an inspection report for your reservoir. If not that, then an elevation-storage table or curve may be available. You can have it emailed as a PDF. If there is no information for your reservoir, then you have to create the table and curve yourself.
First a reservoir has to be surveyed, so you know how full it is for any given elevation of water. The elevations start at zero storage. The figure below shows a cross section and the contour map for a reservoir with a minimum elevation of 86 feet.
How do you survey a reservoir? You could hire an engineer or surveyor to survey it. Depending on your budget and your need for accuracy, the elevation-storage table from a survey could be anywhere from +/- 5%, to +/- 10% accurate. The Water Board requires +/- 10% for larger reservoirs, and +/- 15% for 100 acre-foot (AF) or smaller reservoirs. I recommend aiming for +/- 5% in case you have significant errors elsewhere in the measurement system.
On the high end, the survey could be done using GPS survey instruments, so the result could be accurate and could overlay other digital maps. Almost as high a cost is to have a transit with EDM (electronic distance measurement). Robotic units only require one person acting as the rodman, and the instrument “follows” by keeping pointed at the laser prism reflector.
At the bottom end of the scale, a survey level or possibly a hand level, and a couple of 100′, 200′, or 300′ tapes can be used. Many survey levels can read horizontal angles within a degree or two, so the instrument person can note angle and distance to every point. If angles are not used, then two tapes are used, one to measure the distance along a side, the other to measure perpendiculars out to the rodman. In the boat, the rodman measures depths, and on land he has a telescoping level rod to get elevations above the water level. This way you measure X and Y distances that are plotted on a grid along with each point’s elevation or depth.
With plotted points, now you can draw contours for every foot, or every two feet, or every five feet, depending on the size of your reservoir. Then calculate the area for each contour, and the volume between each set of contours.
Here’s where Google Earth can be your best friend. Navigate to your property and reservoir in Google Earth. Then take a digital photo of your contour map, and import it into Google Earth as an image overlay. Make it 50 percent transparent, and move and resize the image until it fits over your reservoir. Now you can use the polygon tool, trace over your contours, and let Google Earth calculate the areas for you! Make sure to get those areas in square feet or acres and not square miles.
An alternative way of doing this is to print out a map of your reservoir from Google Earth, then draw your survey points and contours right on that map. Then when you import the scanned or photographed, edited map, it will be a lot easier to overlay on your reservoir.
Make an elevation-storage table and draw an elevation-storage curve like the one below.
Let’s look at an example. To get the reservoir volume, add the areas of two adjacent contours, say, the 90-foot contour and the 92-foot contour, divide by 2, then multiply by the elevation difference (in this case, 2 feet). If the 90-foot contour has an area of 6.1 acres, and the 92-foot contour has an area of 7.6 acres, the calculation is [(6.1 + 7.6) / 2] * 2 = 13.7 AF.
Here’s the great thing about simple methods: anyone can measure his own reservoir by reading up on it first (Google, Bing, or DuckDuckGo) and then taking some care (and good notes) to do the job well. If the topography is difficult, or the pond is too large for tapes, or you are just too busy doing the work you have to get done, then talk with an engineer and negotiate cost vs. quality and accuracy.