Specify Your Riparian Water Right In Your Deed

Do you have a riparian water right?  If your property borders or crosses   a natural stream, then you probably do.  If you are unsure, then read the best explanation I have seen, in plain language, in this short document:

Riparian Rules By Chuck Rich.

What can destroy your riparian water right?

  • A property split, if it results in a subdivided parcel that no longer borders the stream.
  • A Superior Court Decree, while it does not take away riparian water rights, can restrict how much and when that riparian water right can be used during irrigation season.
  • A stream can move through the process of erosion, so that a property no longer touches a stream.  How much movement is enough?  “It depends.”  If it is gradual, and the diversion remains active, then the riparian water right is probably still secure.  If a stream suddenly moves, so that it cuts through the property on the other side, and now there is a piece of that property between your parcel and the stream, this avulsion could very well remove a riparian water right.  The water right would only be definitely lost through some action of the Water Board, state Superior Court, or federal court.
  • A person or agency can take a piece of property along the stream.  A person might try and succeed in getting part of your property through adverse possession.  So, always pay your taxes, and notify anyone who leases or regularly accesses your property that you retain full ownership.  An agency might take it to build a levee, or create a corridor of riparian habitat.  In either case, your parcel would be severed from the stream.

How can you protect your riparian water right?

Know the law – print out Chuck’s explanation and read it every few years.

Put it in your property deed.  How should that be done?

  • The best way would be to get the help of an experienced water rights attorney who has written riparian water right provisions for property.  There are very few of these attorneys and they can be hard to find.
  • Put in plain English what you want to do.  What might you include?
      • State that the property has a riparian water right, name the stream, and describe the diversion point, place of use, and purpose of use.  Include an Assessor Parcel Map of your parcel(s).  If possible, include photographs.
      • State that this riparian water right is retained even if the stream moves, gradually or suddenly, away from your parcel.
      • State that it is your intent, and it will be the intent of you, your heirs, and any other purchaser, to retain the riparian water rights for any subdivided parcel, whether adjacent to the stream or now.

If you have a parcel that was severed in the past, but that parcel has used the 

same diversion point continuously from the time before the subdivision, state in your deed that the intent at the time of the subdivision was to retain riparian water rights for your parcel, and that you have continued to divert under  riparian right of claim, and that you do have a riparian water right.

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California Water Rights Are Complicated! Can’t They Be Easier?

California water rights are complicated, which you already know if you have spent an hour trying to figure them out.  From the November 2015 post Water Rights – Why Do They Exist? Which Kinds Are There?, here is the summary list of types:

  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
  5. Appropriative post-1914, issued by the State Water Resources Control Board (Water 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
Photo Credit: morguefile.com

From conversations with a reliable source, I found out that the Water Board made two runs at standardizing water rights in past decades.  Water right holders would have had 20 years to prove their rights, then all of them would have been rolled into one class or type of water right.  There would still be dates of first use, priorities, and so on, but the Water Board would have authority over all of the rights.

So what happened?  It didn’t work.  The leaders of a large water organization contacted their legislators and said, “Hey, this standardization process might affect our rights.  We don’t want that, so please yank the Water Board’s funding for this effort.”  And that was that, and perhaps that was best for most water right holders in the state.

Besides that, the Water Board has tried a few times to cancel riparian water rights, as part of adjudications of all water rights in a watershed.  The resulting lawsuits undid the Water Board’s actions, and riparian water rights are still the law today.