Tag: Reasonable And Beneficial Use

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 Chile

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 Pfeiffer

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, Chile

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.

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….

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 people 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 the “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 might 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.

If 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!

Reasonable And Beneficial Use Depends On Who You Are

As far as water rights go, what is “reasonable and beneficial use”? The California Constitution, Article 10, Section 2, says, in part: “…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….”

That’s pretty clear, isn’t it? Use of water has to make sense and we can’t waste it. The question you are probably asking right now is, who defines the good and bad use of water?

In 1849, The Gold Rush! Starting in the year 1849, prior to California becoming a State in 1850, it was reasonable and beneficial to move a lot of gravel, sometimes whole streams, and sometimes considerable portions of mountains to get gold.

Along with ounces, pounds, and tons of gold found, came a whole lot people than there were before. As the proportion of gold miners to State population decreased, the weight of public opinion changed. Wasn’t it a shame to fill up good rivers with so much gravel that a steamboat could not get through? And weren’t the gnawed-out mountains ugly? Use of monitors was the first, biggest use of water declared to be unreasonable.

Over time, the mines played out and water went more and more to ranches and farms. This is definitely reasonable and beneficial. California became the bread basket and salad bowl of the nation. With more people, land was developed faster, and more water was used.

And you know what happened next. Fish populations in streams decreased, and more focus was put on non-farm uses of water. As dams went in, the miles of natural streams decreased. The fight over water went from who gets the first the mostest, to also arguing how much should be left in creeks and rivers.

In these photos, one shows the whole flow of a creek being diverted to irrigated pastures. In 1940, that was the best use of that water in this part of the State, except if it cut into someone else’s diversion right. Today, a lot of people think the natural stream is best, with no use by people.

So “reasonable and beneficial” depends on when and where you were, and how scarce the water is. Scarcity includes what’s left over after everyone else has rights.

“Good” use of water changes as society changes. In 1900, 90% of people in the USA lived on farms, and 10% in cities. In 2000, 10% lived on farms, and 90% in cities. California was more like 7% vs.93% – it is no surprise that this wholesale change in who we are also changed what is “reasonable and beneficial.” More on this later….

 

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.