How to Divide Up a Decreed Water Right

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

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

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

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

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

SCow_Sheet_5_screenshot

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

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

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

AP_Map_59-98_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.  They picked Rights To Water Engineering to help figure out their water rights.  Within a couple of weeks, they have a nice report in their hands and answers to their questions.  So what did they find out?  The map below is one of several from the report they got from the engineer, showing their property boundary on the 1965 decree map of irrigated lands:Ex_2_Williamson_Parcel_Outline_on_DecreeMap_reduced

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

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

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

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

SCow_Sched1_Leggett_Places_Of_Use

 

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

SCow_Sched2_Leggett_Points_Of_Diversion_2

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

SCow_Sched6_LowerSCC_Leggett_Allots_second_page

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

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

TractMgmtSheet_20151222_Arial_12_01_reduced

TractMgmtSheet_20151222_Arial_12_02_reduced

TractMgmtSheet_20151222_Arial_12_03_reduced

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

Ex_2_Williamson_Parcel_Outline_on_Aerial_reduced

How to Divide Up a Decreed Water Right – Part 2

…continued from yesterday’s Part 1….  To recap, in 2005, San Bernardinoans Arnold and Eileen Williamson bought property near South Cow Creek up in Northern California to retire on and build a new house.  They were set on drilling a new well and uncertainties in how much they could pump got them looking into their surface water right – do they have one for sure, and how much water is it?  They ended up taking their questions to an engineer who could answer their questions.  The map below is one of several from the report they got from the engineer, showing their property boundary on the 1965 decree map of irrigated lands:Ex_2_Williamson_Parcel_Outline_on_DecreeMap_reduced

The report cost $350.  They’re pretty sure they would have paid a lot more than that to see an attorney.  The engineer warns them that if it gets contentious and they can’t work out access to the water with their neighbors, they may end up having to get legal help.  He recommends Jeff Swanson if it comes to that – he’s an expert water rights laywer in Redding.  For now, though, they have documentation they can discuss with their neighbors to work on getting their water right to their property.

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

As natural flows drop during the summer that amount is reduced and everyone with a lower creek second priority has to reduce their diversion by the same percentage.  In normal and wet years they could keep their pasture, hay, or whatever else they plant, irrigated for most or all of the irrigation season.  And whether or not they use the water, the right does stay with the land and protect their property value.

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

SCow_Sched1_Leggett_Places_Of_Use

 

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

SCow_Sched2_Leggett_Points_Of_Diversion_2

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

SCow_Sched6_LowerSCC_Leggett_Allots_second_page

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

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

TractMgmtSheet_20151222_Arial_12_01_reduced

TractMgmtSheet_20151222_Arial_12_02_reduced

TractMgmtSheet_20151222_Arial_12_03_reduced

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

Ex_2_Williamson_Parcel_Outline_on_Aerial_reduced

How to Divide Up a Decreed Water Right – Part 1

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….

 

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.

AlmondOrchard

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

SWRCB_fee_summary_permit_app

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:

SWRCB_fee_summary_permit_annual

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 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.

A018405_ewrims_lic_pg1_purpose_amt

 

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:

A018405_ewrims_lic_pg1_pod_placeofuse

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:

A018405_ewrims_map_w_aerial_256color_small

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….

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!