Tag: California Constitution

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.

Chilean Water Rights at (darn near) the Driest Place on Earth

California seems like a big place to me – I live here.  However, to cover the land surface of earth would take 400 Californias.  There are other places of interest on this celestial ball, like Chile.  What’s amazing about Chile?  The following information comes from various sources and I have not fact-checked it all:

  • 1/3 of all the copper in the world is mined here.
  • Easter Island and its amazing, huge head statues are part of the country.
  • It is a very secure country for residents and tourists.
  • It’s in the Southern Hemisphere (I hope that wasn’t a surprise!)
  • The world’s smallest deer, the pudú, is from there.
  • The people are extraordinarily friendly to visitors.
  • It has the driest “non-polar” desert in the world.  Drier than Death Valley in California??  Yup, it is:  The Atacama Desert in Chile gets 1/25 (0.04″) of an inch of rain per YEAR on average.

It is that last fact, about the Atacama Desert, that makes an amazing story about water rights.  Amazing to me, and hopefully to you, too.

Map of Chilemap_of_chile[1]

In March of 2015, there were very unusual, heavy rains in the desert, and sadly, over 100 people were killed.  Several cities were hit with floods, including the place of interest for this post, the City of Copiapó.

Atacama Desert, by Evelyn Pfeifferimage

The ongoing, increasing problem is not floods, but lack of water.  Of course generations of Chileans have learned to live with that so they have water year-round.  However, recent increases in copper mining have required proportional increases in the use of water as part of the mining process.  (My mining expert friend Mark can correct me here if needed).

Ironically, in 1981, Augusto Pinochet, the formidable dictator, changed the water code so the government has much LESS control, so water rights are much more free market.  Not only can mining companies pay much more, up to $750,000 per acre-foot according to Copiapó city officials, but they can use water than runs on their own properties for free.  [An acre-foot is 43,560 cubic feet of water, or 325,851 gallons – 326,000 gallons near enough, and the amount used by 1 or 2 families per year.]  Given that mining companies have bought a significant chunk of farm land with water rights, that gives the companies the lion’s share.  The increased pumping and new city wells are pulling in more brackish or salty water, at the same time that there is much less water available.

City of Copiapó, ChileCopiapó_atardecer_de_Otoño (1)

In California, city residents might pay up to $4,000 per acre-foot of water, roughly speaking.  I know I’ll get corrected by more than a few people on that.  The highest-profit agriculture might pay up to $1,500 per acre-foot of water.  San Diego’s desalination plant that is being built right now, is expected to cost residents maybe $1,200 per acre-foot of use.

Thankfully, our State’s founders wrote us a good Constitution; it specifies that all water must be used reasonably and beneficially.  Human health and safety are the highest priorities.  Somehow, some way, water gets to 99.99% of people even in a severe drought.  In addition, California is one of the great breadbaskets of the world, even in a severe drought.  Folks, we are blessed in the State of California!  Go see some of the rest of the world, and it will increase your appreciation of our abundance of water, and even thankfulness for our confusing, multi-basis, and to some people “oudated”, water rights system in California.

Dunes of the Atacama, by Evelyn Pfeiffer

The photo above could be of the Anzo-Borrego desert in southeastern California, but it’s from the whole lot drier Atacama Desert in Chile.

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.

The Smartest Water Expert In California

I think that the smartest water expert in California is Chuck Rich. He used to head up the Complaints Unit at the State Water Resources Control Board. Before I get jumped on because one of 200 other people is someone else’s top water expert, let me explain why.

Chuck is not an attorney but he worked with many hundreds of them, and thousands of diverters and water agencies over his career. He had to – complaints came from every part of the State from small diverters up to the largest water agencies. Chuck is eloquent and effective in explaining the application of water law and likely outcomes of arguments over water rights. He can explain water rights to anyone, at their level of understanding. That ability to apply and clearly explain water rights is what moves Chuck to the “smartest” category in my estimation.

For an example, see “Riparian Rules” in the next post. This is the shortest, most complete, and effective explanation I have ever seen. Sure there is more to riparian rights, but this is the meat of it.  (Any mistakes in the text or how it is displayed are mine, not Chuck’s.)

Whenever I am asked, “Yeah but, where is it written how much my riparian right is??”, I refer them to our state Constitution, Article 10, Section 2. Note the phrases “riparian rights” and “reasonable and beneficial use”:

CALIFORNIA CONSTITUTION
ARTICLE 10 WATER

SEC. 2. It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water. Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which the owner’s land is riparian under reasonable methods of diversion and use, or as depriving any appropriator of water to which the appropriator is lawfully entitled. This section shall be self-executing, and the Legislature may also enact laws in the furtherance of the policy in this section contained.