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!

Water Rights – Why Do They Exist? Which Kinds Are There?

Why is there such a thing as water rights? Water is something everyone needs. Except maybe W.C. Fields; he tried to stick to alcohol and when offered water said, “Can’t stand the stuff.” Anyway, water is a shared resource, and in some places there isn’t enough for what people need (or at least want).

California is mostly desert where people live and where food is grown. Water is scarce when it comes to all desired uses. Even in a wet year, surface water flows decrease through the summer and fall.

If you did not have enough water, how would you get it? Use more from the city, buy it from the water district, drill a well, truck it in, or dig a ditch from a creek or river. No matter how you get it, in California it got to you under some kind of right.

What kind of surface water rights are there? The simple list is, and I am sure this leaves out a few:

  1. Riparian – a parcel that touches a stream, spring or lake may use a ” reasonable and beneficial” amount, quantity and rate undefined, per the California Constitution, Article X, Section 2
  2. Rancho rights granted by the government of Spain or Mexico, prior to Statehood in 1850
  3. Pueblo rights, the one belonging to Los Angeles being famous
  4. Appropriative in 1913 and prior, aka “pre-1914”, for parcels not touching a body of water, which started with gold mining and is now mostly for agriculture, environmental, and urban/industrial uses
  5. Appropriative post-1914, issued by the State Water Resources Control Board
  6. Adjudicated, or decreed, from Federal District or State Superior Court
  7. Groundwater from a well, similar to surface water riparian but for the overlying land
  8. Prescriptive, which isn’t a definite right until decreed by a court
  9. Contracts, which are not rights but rely on some already-existing right

That’s useful to know even in summary form. Of course there are books, court cases, both in the thousands, and the California Water Code, and interstate compacts that more particularly define what these are.

Which are better or “senior” rights? That’s for later posts.