Can a water right be lost?

This is a question that comes up all over California, every day.  It usually comes in one Headgate on streamof two ways:

  1. I’m about to buy some land.  Will I have a water right if the previous owner did not use it for X years ?
  2. My neighbor hasn’t used his right in X years.  He lost it, so I can use it, right?

The short answer is yes, an appropriative, post-1914 water right can be lost.  Court-decreed water rights, riparian rights, and pre-1914 cannot be lost – usually.  We’ll discuss those cases later in the post.  What most people are thinking of is the provision from WATER CODE SECTION 1240-1244:

1241.  If the person entitled to the use of water fails to use beneficially all or any part of the water claimed by him or her, for which a right of use has vested, for the purpose for which it was appropriated or adjudicated, for a period of five years, that unused water may revert to the public and shall, if reverted, be regarded as unappropriated public water. That reversion shall occur upon a finding by the board following notice to the permittee, licensee, or person holding a livestock stockpond certificate or small domestic use, small irrigation use, or livestock stockpond use registration under this part and a public hearing if requested by the permittee, licensee, certificate holder, or registration holder.

Diversion box to field“Board” means the  State Water Resources Control Board.  The emphasis on “may” and “if” is mine, and it is important.  Loss of a water right under this provision is not automatic.  It takes a complaint by someone to get it started, just as it takes a complaint for someone to get a water rights case heard by the judge of a Superior or Federal Court.

Then, if the water right holder protests that yes, he or she has diverted water during the last 5 years, it’s up to the complainant or the Board to prove that water was not diverted.  This might be from yearly photos of the land in question (rare), testimony by several neighbors;, or a lack of records from the water right holder, showing that there was indeed a crop, pasture with cattle, hay, or some other beneficial use; or some other evidence.

Let’s consider riparian rights and then put that discussion aside.  A riparian water right cannot be lost for non-use, since it is established by the Constitution of the State of California.  Riparian rights are not being considered here, and they are discussed in greater detail in the post Riparian Rules by Chuck Rich.

How does someone know that their water right may be on the chopping block?  They will have already had phone calls and probably visits from Board staff.  There should be no surprise at this point.  Then, the Board will send a letter that starts something like this:

Notice_proposed_revocation

There is an opportunity to dispute the assertions in the letter, and a water right holder can request a hearing (or hearings) before the Board.  If the alleged non-use is not a watertight case, the process can take a year or longer.

What if the water is a pre-1914 water right?  Can it be lost?  The answer used to be a fairly solid “no”, but the Board’s authority has increased in recent years.  It is harder to lose a pre-1914 right but the best defense is having used it at least once in the past five years, and having some proof it was used.

Diversion box from diversion

What if the water right is part of a  State Superior Court  or  Federal District Court  decree* or adjudication?  Interestingly, very few decrees have ANY provision for expiration of water rights.  In addition, courts usually maintain jurisdiction of these cases, so that any following petitions or lawsuits over decreed water rights must go back to court.  In essence, this makes decreed rights “eternal” or permanent, unless the rights are changed in a subsequent lawsuit.  *Statutory adjudications where the Board issued an Order of Determination, and then took it to the Superior Court to be adjudicated, might be easier for the Board to bring before the court for a revocation action.

What does the Water Board think about that?  Board staff assert that they have “concurrent authority” with State Superior Courts.  That means they have equal power over water rights.

Credit: Pixabay
Courthouse.  Photo Credit: Pixabay

Some at the Board say they have authority over the same water rights that the court does.  Is that true?

Let’s say that it is true.  Has the Board ever asserted its authority over decreed water rights in court?  The last few times I asked Board staff, the answer was “no”.  So it may be true, but as far as I have heard, it has not been tested.  So, no, decreed rights cannot be revoked by the Board without going to court.

What if a water right is managed by a water district, irrigation district, or other agency?  It boils down to, who owns the water rights?  If the district or agency owns them, then they can usually reassign them because of non-payment, and for some other reasons, too.  If the landowners own the water rights, then all the preceding paragraphs of this post apply.  The agency or district just wheels the water, for which they can collect fees for operation (labor) and maintenance if their bylaws allow.

Summarizing the subject of losing post-1914 appropriative water rights for five years of non-use, then, they can be lost if the water right holder admits it, or if there is good evidence that water has not been used.  Pre-1914 rights are harder to lose but it can happen.  The Board cannot revoke riparian rights because they are defined in the State Constitution.  Court-decreed rights cannot be revoked by the Board without going to the court with a petition or as part of a lawsuit.

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eWRIMS Board Water Rights Search – Part 2

In Part 1 of this discussion, we looked at the different types of water rights included in the Water Board’s eWRIMS water rights search Water_Board_eWRIMS_screenshotdatabase.  Now we’ll talk about how to narrow down your search to find just the water rights of interest.  The majority of questions people have are about their own water rights.  How can you find out what eWRIMS has about your water right?

If you pick the eWRIMS Database System link, and hit the “Accept” button at the bottom of the next page, you’ll arrive at at the Water Rights Records Search pageWater Rights Records Search screenshot - Edited.  This looks like a data entry form, and allows you to search by water right type, status, ID, county, etc., and most relevant for finding your own, by Primary Owner.  Whoops!  I sure thought it was – it is now disabled.    Maybe that’s temporary, but even a couple of weeks ago I was able to put in “California”, for example, and find the rights held by State agencies.  As a matter of fact, none of the searches I am trying right now even list any results in the “Holder Name column.

UPDATE:  Search by Primary Owner is working again as of June 29, 2016 at 8:30 A.M.  Thanks, eWRIMS folks for restoring it!

Next, try your County, Source (River name or Source Name), Entity Type, and Hayfork Creek Trinityany other information that you know.  This will give you a list of results.  For example, entering Trinity for County and Hayfork Creek for Source yields 31 results.  Without the “Holder Name” listed it is tough to tell which one is yours…unless you also know one of your IDs.  If that functionality is restored that it makes it easy.  One CAVEAT – if you or the previous owner have not updated the current owner (as the Board requires), then the person’s name will be some previous owner.  You’ll likely recognize it.

eWRIMS GIS Hayfork - EditedIf “you can’t get there from here”, then you can search by map, in the eWRIMS Web Mapping Application (GIS).  The map starts by showing all of California and you zoom in to your area.  When you zoom in far enough, you’ll see rectangular labels of various colors start to appear.  You can click on these to see the individual Application, Permit, License, or Statement of Use.  The screenshot above shows part of Hayfork Creek in Trinity County.

If you have not used eWRIMS, try it out for your and your neighbors’ water rights.  Remember, most riparian and nearly all adjudicated water rights will NOT show up here, but pre-1914, post-1914, some riparian, and some other rights will.  Next time we’ll talk about some of the information you can find on forms for the various rights and statements.

For now, happy water rights searching!

AllWaterRights Blog Moving To ShawnPike.com / eWRIMS Board Water Rights Search – Part 1

The AllWaterRights Blog is Moving!  http://www.shawnpike.com is my permanent site, and as soon as I get the formatting done all the new posts will be over there.

In the meantime, how does someone search for water rights in California?  It used to be an onerous task – and today it is only half-onerous.  🙂  Actually the Water Board gets more information every day and puts it into the Electronic Water Rights Information Management System – eWRIMS for short (pronouncedWater_Board_eWRIMS_screenshot ee-rims).  This screenshot shows the two important links.  The first is to the database, which gives text tables of results and links to some form-entered documents, and some scanned documents.  The second link goes to the geographic information system (GIS), which consists of mapped points linked to the database, on top of reference maps.

What can you find here?  In short, nearly all the post-1914 appropriative Water Rights Applications, Permits, and Licenses can be found here.  Most of the pre-1914 appropriative, and an increasing number of riparian water rights can be found here.  The 2009 water laws that increased reporting requirements and greatly increased penalties, moved most water right holders who had not been filing, to get on the train and avoid the pain.  If you search with no parameters, then the database returns a listing of all records, over 52,000 right now.eWRIMS_query_all_edited

What’s missing?  Nearly all adjudicated water rights are not found on eWRIMS.  There are thousands of rights defined in numerous Superior Court Decrees, that are not found in the database.  Statements of Use are filed for these rights, but not in a form that is easy to put into eWRIMS.  Where could you find these?  We’ll cover that in future posts.

http://www.shawnpike.com is up and running, right now with the brief front page.  More to come soon!  A good night to all.

Can I lose my water right?

This is a question that comes up all over California, every day.  It usually comes in one Headgate on streamof two ways:

  1. I’m about to buy some land.  Will I have a water right if the previous owner did not use it for X years ?
  2. My neighbor hasn’t used his right in X years.  He lost it, so I can use it, right?

The short answer is yes, an appropriative, post-1914 water right can be lost.  Court-decreed water rights, riparian rights, and pre-1914 are major exceptions, usually – we’ll discuss those cases later in the post.  What most people are thinking of is the provision from WATER CODE SECTION 1240-1244:

1241.  If the person entitled to the use of water fails to use beneficially all or any part of the water claimed by him or her, for which a right of use has vested, for the purpose for which it was appropriated or adjudicated, for a period of five years, that unused water may revert to the public and shall, if reverted, be regarded as unappropriated public water. That reversion shall occur upon a finding by the board following notice to the permittee, licensee, or person holding a livestock stockpond certificate or small domestic use, small irrigation use, or livestock stockpond use registration under this part and a public hearing if requested by the permittee, licensee, certificate holder, or registration holder.

Diversion box to field“Board” means the  State Water Resources Control Board.  The emphasis on “may” and “if” is mine, and it is important.  Loss of a water right under this provision is not automatic.  It takes a complaint by someone to get it started, just as it takes a complaint for someone to get a water rights case heard by the judge of a Superior or Federal Court.

Then, if the water right holder protests that yes, he or she has diverted water during the last 5 years, it’s up to the complainant or the Board to prove that water was not diverted.  This might be from yearly photos of the land in question (rare), testimony by several neighbors;, or a lack of records from the water right holder, showing that there was indeed pasture with cattle, or hay, or some other beneficial use; or some other evidence.

Let’s consider riparian rights and then put that discussion aside.  A riparian water right cannot be lost for non-use, since it is established by the Constitution of the State of California.  Riparian rights are not being considered here.

How does someone know that their water right may be on the chopping block?  They will have already had phone calls and probably visits from Board staff.  There should be no surprise at this point.  Then, the Board will send a letter that starts something like this:

Notice_proposed_revocation

There is an opportunity to dispute the assertions in the letter, and a water right holder can request a hearing (or hearings) before the Board.  If the alleged non-use is not a watertight case, the process can take a year or longer.

What if the water is a pre-1914 water right?  Can it be lost?  The answer used to be a fairly solid “no”, but the Board’s authority has increased in recent years.  It is harder to lose a pre-1914 right but the best defense is having used it at least once in the past five years, and having some proof it was used.

Diversion box from diversion

What if the water right is part of a  State Superior Court  or  Federal District Court  decree* or adjudication?  Interestingly, very few decrees have ANY provision for expiration of water rights.  In addition, courts usually maintain jurisdiction of these cases, so that any following petitions or lawsuits over decreed water rights must go back to court.  In essence, this makes decreed rights “eternal” or permanent, unless the rights are changed in a subsequent lawsuit.  *Statutory adjudications where the Board issued an Order of Determination, and then took it to the Superior Court to be adjudicated, might be easier for the Board to bring before the court for a revocation action.

What does the Water Board think about that?  Board staff assert that they have “concurrent authority” with State Superior Courts.  That means they have equal power over water rights.

Credit: Pixabay
Courthouse.  Photo Credit: Pixabay

Some at the Board say they have authority over the same water rights that the court does.  Is that true?

Let’s say that it is true.  Has the Board ever asserted its authority over decreed water rights in court?  The last few times I asked Board staff, the answer was

“no”.  So it may be true, but as far as I have heard, it has not been tested.  So, no, decreed rights cannot be revoked by the Board without going to court.

Summarizing the subject of losing post-1914 appropriative water rights for five years of non-use, then, they can be lost if the water right holder admits it, or if there is good evidence that water has not been used.  Pre-1914 rights are harder to lose but it can happen.  The Board cannot revoke riparian rights because they are defined in the State Constitution.  Court-decreed rights cannot be revoked by the Board without going to the court with a petition or as part of a lawsuit.

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….

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.