Tag: State Water Resources Control board

Summary of Water Rights, Flow Measurement Posts So Far

There have been 25 posts so far, on the types of California surface water rights, flow measurement devices, and how to measure diverted flows.  You’ll see new posts once or twice a week.  Please send suggestions for post topics!  We have discussed:

  1. All Water Rights, California
  2. Read Me My Rights (How do you know if you have a water right?)
  3. Reasonable And Beneficial Use Depends On Who You Are
  4. The Smartest Water Expert In California (Chuck Rich)
  5. Riparian Rules by Chuck Rich
  6. Water Rights – Why Do They Exist? Which Kinds Are There?
  7. Water Rights And Engineers
  8. California Water Right Holders Now Required To Have Measuring Device
  9. What Is Your Place Of Use?  (Where can you legally use your right?)
  10. Places Of Use – Adjudicated (Decreed) In The State Superior Court
  11. A Place For Permits And Licenses (Places of Use)
  12. Nothing Secret About It  (This is all public information.)
  13. Quick Change of Subjects: What’s a Water Right Permit Cost?
  14. Life Of Reilly: If You Can’t Measure It, You Can’t Manage It!
  15. How to Divide Up a Decreed Water Right – Part 1
  16. How to Divide Up a Decreed Water Right – Part 2
  17. Weirs – Planning, Building, Measuring Flows
  18. From weir to orifice in only an hour
  19. Chilean Water Rights at (darn near) the Driest Place on Earth
  20. Some Hope in Rain and Snow Totals
  21. Is John Stealing Water?? Orifices – Right Size and How to Measure
  22. Worried about SB 88? That’s what this blog is for! Get a device in, send a photo to the Board, record and report your diversions
  23. Flumes – installing for decades of flow measurement, Part 1
  24. Simple Weirs and Orifices, on video, and in photos!
  25. Diverters must report weekly, daily, or HOURLY starting 2017!

Diverters must report weekly, daily, or HOURLY starting 2017!

SWRCB_Header

So on Tuesday, January 20, “The State Water Resources Control Board (State Water Board) adopted regulations Tuesday evening requiring all surface water right holders and claimants to report their diversions. Those who divert more than 10 acre-feet of water per year must also measure their diversions.”  Click the logo above to see the 2-page document on the Board’s website.

Well, how bad can it be?  Before January 20, most diverters had to report monthly diversions, so 12 volumes per year, plus the annual total.  That’s 13 numbers.  The required frequency a year from now will be increased quite a bit, to weekly, or daily, or hourly:

“For instance, large diverters with a claimed right to take 1,000 acre feet of water or more per year are required to have a measuring device or measuring method capable of recording at least hourly in place by Jan. 1, 2017; those with claimed rights to divert 100 acre feet or more must comply by July 1, 2017 and record at least daily; and those with claimed rights to divert more than 10 acre feet must comply by Jan. 1, 2018 and record at least weekly.”

How can flows even be reported hourly?  See the end of this post.  What if someone decides to skip reporting, and let the Board catch up with them later?  The FINES can be large enough to hurt – we’ll discuss this in a later post.

At the minimum reporting requirement of weekly, the volume is 10 acre feet (AF) to 100 AF.  What is 10 AF in terms of a seasonal agricultural diversion?  All the flows shown below are year-round; if the diversion only runs seasonally, the actual water right might be 2 to 10 times the calculated amount, depending on how long the season is and when the stream dries up.

10 AF  =  0.014 cubic feet per second (cfs) year-round, or 6.2 gallons per minute (gpm).  That’s a domestic right, enough for a family house, garden, and perhaps 15 trees or a yard.

100 AF = 0.140 cfs, or 62 gpm year-round.  Depending on soil, this is enough for 3 to 15 acres of pasture or hay, maybe 15 cows or steers, or maybe 30 acres of a mature walnut orchard with micro-sprinklers.  This is enough for a little extra money, still not enough to support a family.About_1.4_cfs_over_weir_edited_2_small

1,000 AF = 1.40 cfs or 620 gpm year-round.  This is enough for 30 to 150 acres of pasture or hay, or maybe 300 acres of orchard.  Water in this quantity could support a family and would be considered a ranch or farm.  The 4′ weir above has about 1.4 cfs going over it.  As mentioned above, if this diversion only runs 6 months of the year, and really only gets the full flow for 3 months, then the actual continuous water right might be 5 cfs.  It might be easier to reverse the thinking: a 5 cfs right might run at 5 cfs for 3 months,  3 cfs for a month, 2 cfs for 2 months, and be off the rest of the year.  That’s closer to a 2 cfs right year-round, or about 1,400 AF per year.

How is flow measured HOURLY?  The only practical ways to do this used to be an old mechanical recorder, like a Stevens F Recorder (pen on paper on rotating drum) you can still see on some creeks.

More likely today, it will require a battery-powered pressure transducer set inside a 2″ pipe bolted on the side of the weir, or headwall, or other permanent structure.  These cost from $400 to $1,200 or more, depending on the brand and more importantly, quality.  The higher the quality, the less they have to be checked, and have dirt removed from the bottom sensor.  The maintenance can be significant – in warm water with algae, the sensor might have to be cleaned once a week.  If it’s not maintained…well, then at some point it stops recording that data that the Board requires.

WaterLevelLogger_wl300_1

Here’s one that would do the job, from http://www.globalw.com/ products/levelsensor.html.  It sits there and records water levels night and day, for months at a time before it has to be downloaded to a computer.  The data file that is downloaded is what is actually sent to the Board – a spreadsheet of flows for 6 months would be half an inch think and unusable!

That’s enough for now, a good night to you all.

Worried about SB 88? That’s what this blog is for! Get a device in, send a photo to the Board, record and report your diversions

Worried about SB 88?  That’s what this blog is for!  Read here to select a flow measurement device, install it, send a photo to the Board, record your flows, and report them as required.  You will find most or all of the information you need in here.  If you need help, Rights To Water Engineering can help you meet the law quickly and at a relatively low cost.  (530) 526-0134

California Senate Bill 88 is effective as of January 1, 2016, 11 days ago as of this posting.  Here is the part that affects private or small agricultural diverters the most:

SB88_Art3_Clip

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.

Nothing Secret About It

A word on all the information discussed in this blog so far – it is all publicly available.  It is not all on the Internet, but it can be obtained by going to the right office or court.

For example, the South Cow Decree is available from the Board’s website.  That’s great!  However, last I checked, the maps are not available online, so a call to the Board might get you a copy or more likely, scanned PDFs of the maps.

http://www.waterboards.ca.gov/waterrights/board_decisions/adopted_orders/judgments/

swrcb_judgmentn_clip

If that doesn’t work, then a trip to the Shasta County Superior Court will be necessary.  This particular decree is not kept in a spot where a requester can wait in line.  A request has to be filled out, and then you go in a few days later, review the case box(es), note which pages you want copied, and pay for copies.

My last post (Permits and Licenses) listed what information is available on the Board’s website.  Additional information might be obtained with a phone call to the right person but folks at the Board usually have 5 times as much assigned as what they can get done.  A visit to Sacramento might be necessary to get all the info.

Ownership information is also publicly available.  It can be searched for free at the County Assessor Office, and in some counties, searched online, showing owners and sometimes even maps.  Various private companies make ownership information available, which is really handy if you want to know the owners and mapping of 10…or 100…or 1,000 parcels.   ParcelQuest is an excellent company, at parcelquest.com.  They have various purchase plans and subscriptions; last I checked, anybody with a credit card can get a subscription for $100/month ($150/month premium plan) and query and download ownership in any of California’s 58 counties.

I agree, it is unsettling just how much information is quickly available on each of us and our possessions.  Much of the information is free, and what isn’t can be had a little cost.  On the other hand, if you are trying to figure out what your existing water right is, or what the water rights are for land you might purchase, you can figure out half of it online in a few hours time.

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….

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!

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.

The Smartest Water Expert In California

I think that the smartest water expert in California is Chuck Rich. He used to head up the Complaints Unit at the State Water Resources Control Board. Before I get jumped on because one of 200 other people is someone else’s top water expert, let me explain why.

Chuck is not an attorney but he worked with many hundreds of them, and thousands of diverters and water agencies over his career. He had to – complaints came from every part of the State from small diverters up to the largest water agencies. Chuck is eloquent and effective in explaining the application of water law and likely outcomes of arguments over water rights. He can explain water rights to anyone, at their level of understanding. That ability to apply and clearly explain water rights is what moves Chuck to the “smartest” category in my estimation.

For an example, see “Riparian Rules” in the next post. This is the shortest, most complete, and effective explanation I have ever seen. Sure there is more to riparian rights, but this is the meat of it.  (Any mistakes in the text or how it is displayed are mine, not Chuck’s.)

Whenever I am asked, “Yeah but, where is it written how much my riparian right is??”, I refer them to our state Constitution, Article 10, Section 2. Note the phrases “riparian rights” and “reasonable and beneficial use”:

CALIFORNIA CONSTITUTION
ARTICLE 10 WATER

SEC. 2. It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. 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. Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which the owner’s land is riparian under reasonable methods of diversion and use, or as depriving any appropriator of water to which the appropriator is lawfully entitled. This section shall be self-executing, and the Legislature may also enact laws in the furtherance of the policy in this section contained.