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….

 

Places Of Use – Adjudicated (Decreed) In The State Superior Court

For adjudicated or decreed water rights, the place of use is usually defined in maps created for an engineering report.  The State Superior Court (Court) in the particular County of the court case often uses these maps, making a few changes by text when the decree is finally issued.

In the South Cow Creek Decree (Decree), formally known as Shasta County State Superior Court Case Number 38577, the maps were created by a prior engineering report. This 1968 decree defined all water rights for South Cow Creek, Old Cow Creek, and their tributaries.  Maps show owners at the time the initial report was written, Sections divided up into 1/4 1/4 Sections (~40 acres each), points of diversion, irrigated lands, and other features.

South_Cow_Sht5_Hall_small

The clip above is from Decree Sheet 5, which is centered on the SW 1/4 of Section 13, Township 31 North, Range 3 W.  In the short hand of the Decree, it is the SW 1/4 (Section) 13 T31N R3W.  These were the irrigated lands of Jura Lawrence Hall.

 

South_Cow_Sch1_Hall_small

The Place Of Use is shown in Schedule 1 of the decree, excerpted above.  Each piece of the irrigated acreage is listed.  Some are footnoted is being “dormant riparian land”, not irrigated at that time.

 

South_Cow_Sch2_Hall_POD_small

The excerpt above, from Decree Schedule 2 shows the points of diversion for Hall, Numbers 78 and 79.  These diversions are shown as circled numbers with arrows on the map above.  In Schedule 2, the points of diversion are listed as being so many feet at some angle, distant from a Section Corner or other point.

So, the place of use and point of diversion can still be located on the ground today, with an error that might be as little as 20 feet, or as great as 300 feet (sometimes more than that.  This is enough to define where the court order, the Decree, allows water to be diverted and applied on the land that originally belonged to Jura Lawrence Hall.

 

The following excerpt from Schedule 6 shows the water rights for Hall.  There are first priority, second priority, and fourth priority rights.  Where exactly do these rights go, and what are they for?  That’s a story for a future post, more likely several posts.

South_Cow_Sch6_Hall_Allot_small

 

In this world, it seems that the only constant is change, and that goes for land ownership, too.  The aerial photo below shows ownership lines on Hall’s lands today.  Notice that there are 10 parcels, most with some portion of the decreed water right:

South_Cow_Sht5_Hall_Owner_Lines_2015_small

How are the water rights divided up?  Who gets some, and how much?  That falls under the heading of apportioning water rights, also a story for a later post.

It is interesting, isn’t it?  Now we start to see why there is some confusion about water rights, and who has them, and how they can demonstrate that.  As you might guess, there have been lawsuits since the original 1968 Decree to define the rights better.

What Is Your Place Of Use?

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

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

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

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

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

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

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