Tag: Board

Riparian Rules by Chuck Rich

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

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

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

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

Water Management (Sharing Shortages) In California In the Short and Long Term, Part 2

Continuing from Part 1, why would a groundwater shortage in San Diego affect how much a surface water diverter in Modoc County could use…rather, how much the diverter has to reduce his use?  Where does all groundwateWatercyclesummaryr come from?  Surface water flowing in streams, accumulating in meadows, ponds, and lakes replenishes groundwater, whether it takes a year, 3 years, or 20 years.
Rainfall infiltrates (soaks in) until the soil has no more capacity, and then runs off.  Groundwater is directly connected to, and depends on the amount of surface water.

In 2009, just 7 years ago, the California Legislature passed and the Governor signed Senate Bills 1, 6, 7, and 8.  These new laws required:

In 2013, 4 short years later, the Sustainable Groundwater Management Act passed.  This is a gigantic change in state groundwater laws – 515 groundwater basins in California are now prioritized based on overdraft, increased groundwater pumping, and falling groundwater levels; or conversely, the health of groundwater basins – some are hardly even touched.  On this map, now everybody can see what was neCASGEM_BasinPrioritization_Statewidearly invisible 2 years ago – the state of our groundwater basins.

About 2/3 of California’s water falls in the northern 1/3 of the State.  However, most of the good agricultural land, as well as most of its population, is in that drier 2/3 of the State.

Back to San Diego potentially affecting how much water can be diverted in Modoc County…does San Diego even have a groundwater basin?  Yes it does, along the Sweetwater River.  Of course this isn’t hydrologically connected to drainage from the Pit River in Modoc County; the Pit River ultimately eCASGEM_BasinPrioritization_SanDiegonters the Pacific Ocean in the Sacramento River-San Joaquin River Delta, and the Sweetwater enters the ocean on the shores of the City of San Diego.

Think about it:  7 short years ago, groundwater was mostly a mystery to 90% of folks, and surface water management was hardly “integrated”, except for the federal Central Valley Project (CVP), State Water Project (SWP), and some relatively small projects.  20 years from now?  Heck, that’s 2036; I’ll bet that, just continuing the –> trajectory –> of legislation that started in 2009, by 2030 (14 years from now), surface water and groundwater will be so connected and co-managed, that shortages in San Diego will require diversions to be reduced from where the water is in those northernmost Counties contributing to the Sacramento River drainage:  Siskiyou, Modoc, Shasta, part of Lassen, Tehama, Glenn, Butte, and Plumas.  I put in print so we can check my prognostications down the road.  You heard it here first!

Maybe that sounds paranoid or protective.  It’s not, I would think the same whether I lived in Crescent City, San Francisco, Susanville, Oroville, Bakersfield, or San Dimas.  After all, who would have thought in 2007 or 2008, that we would be integrating surface water use, looking at groundwater maps in syndicated newspapers, hearing of possible  fines of $25,000 for misreporting surface water diversion in the middle of nowhere…?

That’s all for now, by the end of the week we’ll be back to discussing the many aspects of the diversion of surface water.  Have a good night, everybody.

Coming Soon, Free Ebooks on Measurement Device Installation and Flow Measurement

The All Water Rights Blog has most or all of the information needed for a farmer or rancher to install a simple measuring device that is compliant with the recent regulations of the State Water Resources Control Board.  I’ll have a couple of free ebooks by June, on how to Red_Books_Edited_3install pre-cast weirs and orifices, as well as how to use them correctly, and report flows from small diversions to the Water Board.  Actually, the ebooks will apply to larger diversions, too, except for the necessary pressure transducer needed to report hourly (and some day, 15-minute) flows to the Board.GE_PT878

There are certainly more complicated devices that require help, such as cast-concrete
Parshall and other flumes, mag-meters, acoustic Dopplers, or full-on gaging stations on rated sections of streams or ditches.

However, most diverters can (and many do) comply with the law with relatively simple devices.  That’s it for now, I just wanted to get the word out on this.

Oh, and there will be an ebook some time around August, which has a working title of “Practical And Applied Water Rights In California – The Non-Attorney Book For Diverting Your Water”.  That book will be more complete and will cost something, yet to be determined.  Let me know what YOU want to see included in a book like this.

Have a great day, pray for more rain and snow!

How Good Is Good Enough? Water Board Required Accuracy of Your Measurement Device

How accurate does your measurement device have to be?  The Water Board gives those numbers in the Fact Sheet at http://www.swrcb.ca.gov/press_room/press_releases/2016/pr12016_measurement.pdf; see the bottom of this post for the excerpt on accuracy.

When talking about new weirs, orifices, flumes, mag-meters, and acoustic Doppler devices, plus or minus (+/-) 5% accuracy is expected of new, properly installed, regularly maintained, correctly operated devices.  What does that mean?  If your diversion rate is measured at 1.00 cubic feet per second (cfs), then you would expect the true value to be between 0.95 and 1.05 cfs.  If your diversion rate is 5.00 cfs, then the true value would be between 4.75 and 5.25 cfs.  The total accuracy is 10%, we just don’t know if measured values are really up to 5% less, or 5% more than calculated.

New devices might actually have better accuracy than +/- 5%.  Engineers never count on that because a bunch of factors, known and unknown, can stealthily make the accuracy worse.  Accuracy also depends on the measurer – some are better than others, some are better trained and experienced, and most take the job seriously but some do not.

Of course, accuracy gets worse as measurement devices age.  Why does this happen?  There are a number of reasons:

  • Settling, so the device is not level front to back, or side to side, or both
  • Cracking, so water leaks out, or the cracked wall is not straight (planar)
  • Wear, spalling, chipping, and other roughening in the device floor and walls
  • The ditch fills in downstream, causing submergence
  • Old boards that warp and leak
  • Installed staff gages wear, making them harder to read correctly
  • Etc.

The USBR Water Measurement Manual has 14 chapters, and all of Chapter 3 discusses accuracy in great detail.  That’s the “Bible” of water measurement so we would expect it to be, well, accurate in its discussion of accuracy.

http://www.usbr.gov/tsc/techreferences/mands/wmm/index.htm

It is not clear to me yet whether the Board’s accuracy numbers are +/- values, meaning the allowed accuracy is +/- 15% for diversions less than 100 acre-feet (AF) per year, and +/- 10% for diversions greater than 10 AF per year.  If so, that seems reasonable because that allows for some aging of measurement devices.  Otherwise, the Board would expect measurement devices to always be in new condition for diversions greater than 100 AF per year or storage greater than 200 AF per year.  That would be pretty expensive!

That brings up the subject of money – accuracy requirements hit your pocketbook.  First you have to either install or pay for a measurement device to be installed.  Hopefully the device will last 20 to 30 years, but high flows, getting walked on by cattle, freezing and thawing, settling faster than expected, and other events can wear them out faster.  The replacement cycle might be 10 years for some diversions, or even 5 if wear and tear is bad.

Board_FactSheet_MeasurementAccuracy

This post may be more than most people want to read on the subject of accuracy.  Still, it’s a lot shorter than Chapter 3 of the Water Measurement Manual!

That’s all for now, have a great rest of the week.

Diverters must report weekly, daily, or HOURLY starting 2017!

SWRCB_Header

So on Tuesday, January 20, “The State Water Resources Control Board (State Water Board) adopted regulations Tuesday evening requiring all surface water right holders and claimants to report their diversions. Those who divert more than 10 acre-feet of water per year must also measure their diversions.”  Click the logo above to see the 2-page document on the Board’s website.

Well, how bad can it be?  Before January 20, most diverters had to report monthly diversions, so 12 volumes per year, plus the annual total.  That’s 13 numbers.  The required frequency a year from now will be increased quite a bit, to weekly, or daily, or hourly:

“For instance, large diverters with a claimed right to take 1,000 acre feet of water or more per year are required to have a measuring device or measuring method capable of recording at least hourly in place by Jan. 1, 2017; those with claimed rights to divert 100 acre feet or more must comply by July 1, 2017 and record at least daily; and those with claimed rights to divert more than 10 acre feet must comply by Jan. 1, 2018 and record at least weekly.”

How can flows even be reported hourly?  See the end of this post.  What if someone decides to skip reporting, and let the Board catch up with them later?  The FINES can be large enough to hurt – we’ll discuss this in a later post.

At the minimum reporting requirement of weekly, the volume is 10 acre feet (AF) to 100 AF.  What is 10 AF in terms of a seasonal agricultural diversion?  All the flows shown below are year-round; if the diversion only runs seasonally, the actual water right might be 2 to 10 times the calculated amount, depending on how long the season is and when the stream dries up.

10 AF  =  0.014 cubic feet per second (cfs) year-round, or 6.2 gallons per minute (gpm).  That’s a domestic right, enough for a family house, garden, and perhaps 15 trees or a yard.

100 AF = 0.140 cfs, or 62 gpm year-round.  Depending on soil, this is enough for 3 to 15 acres of pasture or hay, maybe 15 cows or steers, or maybe 30 acres of a mature walnut orchard with micro-sprinklers.  This is enough for a little extra money, still not enough to support a family.About_1.4_cfs_over_weir_edited_2_small

1,000 AF = 1.40 cfs or 620 gpm year-round.  This is enough for 30 to 150 acres of pasture or hay, or maybe 300 acres of orchard.  Water in this quantity could support a family and would be considered a ranch or farm.  The 4′ weir above has about 1.4 cfs going over it.  As mentioned above, if this diversion only runs 6 months of the year, and really only gets the full flow for 3 months, then the actual continuous water right might be 5 cfs.  It might be easier to reverse the thinking: a 5 cfs right might run at 5 cfs for 3 months,  3 cfs for a month, 2 cfs for 2 months, and be off the rest of the year.  That’s closer to a 2 cfs right year-round, or about 1,400 AF per year.

How is flow measured HOURLY?  The only practical ways to do this used to be an old mechanical recorder, like a Stevens F Recorder (pen on paper on rotating drum) you can still see on some creeks.

More likely today, it will require a battery-powered pressure transducer set inside a 2″ pipe bolted on the side of the weir, or headwall, or other permanent structure.  These cost from $400 to $1,200 or more, depending on the brand and more importantly, quality.  The higher the quality, the less they have to be checked, and have dirt removed from the bottom sensor.  The maintenance can be significant – in warm water with algae, the sensor might have to be cleaned once a week.  If it’s not maintained…well, then at some point it stops recording that data that the Board requires.

WaterLevelLogger_wl300_1

Here’s one that would do the job, from http://www.globalw.com/ products/levelsensor.html.  It sits there and records water levels night and day, for months at a time before it has to be downloaded to a computer.  The data file that is downloaded is what is actually sent to the Board – a spreadsheet of flows for 6 months would be half an inch think and unusable!

That’s enough for now, a good night to you all.

Weirs – Planning, Building, And Measuring Flows

Tomorrow is Christmas 2015!  Merry Christmas all.

Weirs are the least expensive permanent measurement device you can install.  Materials will cost the diverter in the range of $300 to $2,000; hiring the backhoe to set it in place probably costs more than the materials, unless the diverter already has a backhoe or crane.

The weir below was precast by Briggs Manufacturing in Willows.  The weir is a cast concrete, 3-sided box with board slots for 2″ lumber.  It’s pretty simple, and relatively easy to install.  This particular weirWeir_Showing_Board_Slotsneeded metal wing-walls to keep the dirt on the sides from washing out.  Note that there are two board slots on each side, one for the boards to slide in, and the other to help make sure a nappe or air gap is created as water flows over the boards.

Step one is determining if there is enough fall in head from upstream to downstream.  A weir needs 0.7 feet (0.7′), or 8.4 inches (8.4″) of fall to be sure it will work correctly.  The 0.7′ figure is because the pool of water needs to be a maximum of 0.45′ above the top of the weir boards on the  upstream side.  Then, the water in the ditch downstream of the weir needs to be at least 0.25′ below the top of the boards so the water flows freely, separating from the boards and having an air gap on the downstream side.  0.45′ + 0.25′ = 0.70′.Sticking_Weir_sharpened

The photo above shows a ruler in tenths of a foot, held vertically on top of the weir boards.  This is called “sticking the weir”.  When the ruler is turned face-on to the flow, the water will climb up to the same level as the flat pool upstream of the boards.  It’s physics – standing water has an energy level equal to the height of the water surface.  Moving water has both potential and kinetic energy, so the energy level or line is above the surface of the

Sticking_Weir_zoom_sharpenedwater.  Moving water stalls behind the face of the ruler, giving the height of the water if it were standing still.  That is the water depth that has to be measured for weirs.  The photo is showing a water level of 0.31′ – it wobbles up and down just a little – so we know this weir is flowing at about 0.6 cfs per foot of width.

If the ditch is very flat and shows no ripples when flowing, it’s probably too flat, and an orifice or a flume will be needed instead of a weir.  Future posts will discuss those measurement devices, and others too.

Step 2 is figuring out how big a box is needed.  Fortunately, there is an easy rule.  1.0′ feet of width is needed for every cubic foot per second (cfs) that will be diverted.  For example, if the diversion will be a maximum of 3 cfs, then the diverter will need a 3′ wide weir.contracted_weir  If in doubt, get the next larger size since the cost is not much more.  The reason for this rule is that a weir can be accurate to plus or minus 5%, well within the accuracy needed for diversions in the field.  If the pool upstream of the weir boards is more than 0.45′ over the top of the boards (or less than about 0.1′ over the top of the boards), the accuracy of the weir is worse than the standard.

Measurement devices need to be planned and operated correctly to assure the diverter (and ditch-tender, and neighbors, and the State Water Resources Control Board, andsuppressed_weirpossibly 10 other state and federal agencies, and possibly even the Superior Court in the very worst case) that the flow measurement is correct.  It’s like a truck speedometer – they can get less accurate over time.  It’s no problem if they read faster than the driver is actually driving, but if they read slower, the driver is in danger of unknowingly speeding and getting a ticket.  Ouch.

The actual installation process is fairly simple to describe.  Get 1 to 4 yards of 3/4″ minus road base rock delivered on site, trucked from the gravel plant.  To save a lot of hassle, skip the forming up and pouring a concrete weir, and just call Briggs Manufacturing and order a weir to be delivered on site.  Dig a shallow, level (flat), square hole in the bottom of the ditch, about 8″ deep, and 1′ longer and wider than the bottom of the weir.  Shovel base rock into the hole about 2″ deep, and compact it.  Rent a gas-powered thumper, or use the bucket of the backhoe.  Pour another 2″ and compact it.  Use a level and make sure the top of the base rock is level side to side, and along the ditch.  Since it packed down during compacting, add the last 1″ and compact it, so the top of the road base is about 4″ below the bottom of the ditch upstream and downstream.

The installer needs to make sure to have a piece of 1″ steel bar that is about 1′ longer than the the width of the weir box.  There is one hole through the top of each side of the weir – stick the rod through that and hook onto it with a chain to lift the weir.  Set it in place, and make sure it is sitting level.  The installer might have to gently press down on one side with the backhoe to get it completely level.  Now the floor of the weir will be at the level of the bottom of the ditch.  Remove the steel bar, and fill the weir box inside about 2′ deep with some dirt.

Next, install the wing-walls, if needed.  These will keep the material on the outsides of the weir from washing out in a steeper ditch.  Then backfill with the remaining road base on the sides, compacting it for each 6″ of depth.  If tNew_Weirhe native soil holds water well, it could be used instead of base rock to backfill, saving a little bit of money.  Remember the dirt that was placed 2′ deep inside the weir?  This will keep the weir weighted down so it does not move during backfilling.  Also, it will keep the sides from being slightly bent in by the pressure of compacting the backfill.  The reinforced concrete weir boxes are strong but the walls can be bent in with enough force.

That’s it!  The weir box is installed and ready to go.  New weir boards, usually 2″ x 6″ or 2″ x 8″, should be cut about 1″ shorter than the width inside the board slots.  For example, a 3′-wide weir will have board slots about 2″ deep.  The full width from inside of board slot, to inside of the opposite board slot, is 3′-4″.  The boards should be cut about 3′-3″ long.  That way, when they swell a little bit, they won’t get impossibly stuck.

Happy measuring!  Good night to all, Merry Christmas, and blessings in the New Year.

Life Of Reilly: If You Can’t Measure It, You Can’t Manage It!

A friend of mine, Chris Reilly, summarizes everything you need to know about measuring flows into your surface water diversion:  “If you can’t measure it, you can’t manage it!”  Except for riparian rights and some very small water rights, diverted flows have to be measured.  Why?

Full_DitchFlooded_Field

Dry_DitchLegally, to ensure your neighbors, the Board, and/or a Superior Court Judge that you are diverting no more than your water right.  Practically, how do you know if you are getting as much water as you should?  As surface flows decrease through the summer, every bit less means some pasture, hay, orchards, row crops, or something else does not get irrigated.

If you have nWMM_Cover_smallever measured flow into a ditch before, well, here goes, I am going to leak the secrets right here, I’m going to violate the Unspeakable Code Of The Water Measuring Brotherhood, the ve
ry deepest, most powerful wisdom of how to measure your flow will appear on this very page.  After this, who knows if you will ever hear from me again, once this classified information is made public?  Well, not really, but few people have heard of the Bible Of Water Measurement, the USBR Water Measurement Manual (WMM)

Let’s look at 3 common measurement devices detailed in the manual:  weirs, orifices, and flumes.  Properly installed and maintained, these devices can measure flow within plus or minus 5% of the actual amount.  The photos below are from the WMM, which has lots of diagrams that make it easy to see the details of how each device works.  First, the weir:

WMM_weir

You have seen these before, they’re just a level plate or board of a specific width, with a relatively still pool behind them.  That’s it!  By measuring the height of the pool above the edge of the plate or board, you can use tables or equations from the WMM to determine what the flow is.

WMM_orifice

Above is shown an orifice.  Not much to see, is there?  In this case, it is just a hole, lower than the upstream flow.  That is physically all an orifice is.  Knowing the size of the hole, and how high the water is over the center of the hole, and how high the water is down the ditch, a table or equation can be used to figure out the flow.  The gentleman above is using a square gate with a certain width.  The area changes with how high the bottom of the gate is, not hard to figure out.

WMM_Flume_01

The photo above shows a Parshall Flume.  These are great for measuring high flows without needing a lot of “head” or the drop in the water from upstream to downstream.  By knowing the depth at a certain point, a table or equation can give the flow amount.

We’ll go into how to use tables for specific measurement devices in later posts.  It’s enough for now to know that if you have a decent measurement device, then you CAN manage your flow, as well as proving that you are taking no more than your legal water right.

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!

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.