Is John Stealing Water?? Orifices And Sum Of The Boxes

This is updated from a previous post, which was an example for a stream with adjudicated water rights.  However, it also works for any stream where there are water rights with legally defined diversion quantities, if all the diverters have headgates in good condition and/or measurement devices such as weirs, flumes, and pipe meters.

Is John Stealing Water??  John Casey has a cattle ranch near Adin, where he grows pasture and hay to raise about 70 Angus steers.  His ranch is 240 acres with lower irrigated land and forest on the higher part.  He has an a licensed water right of 2.00 cubic feet per second (cfs) from Preacher Creek, to irrigate 80 acres, from April 1 to November 1.

John’s downstream neighbors claim he steals water.  He says he can show that he takes only 2 cfs, or less when the flow drops down in the summer.  Can he prove it?John_Headgate_edit

As we can see, he has a square headgate at the head of his ditch.  It is 2.0′ wide, and can open up to 1.5′ high.  Right now, John says he is diverting 1.05 cfs.  His evidence is that his gate is open 0.15′, the water is 0.57′ deep on the upstream side, and the water is 0.20′ deep on the downstream side.  Is that enough to check what he says?

The box in which the gate sits has smooth walls, and the gate closes flush with the bottom when John is not diverting.  The water continues in a straight path from upstream to downstream.  That means the weir has “suppressed” sides.

This is in contrast with, for example, a hole cut in the middle of a 2″ x 12″ weir board.  The water on the sides has to make the turn to go straight through, so the hole in the board is an example of a “contracted” orifice.

Let’s look at the tables for orifices in the back of the Water Measurement Manual.  Table A9-3 is for submerged, suppressed weirs.WMM_Table_A9-3_suppressed

We can’t see the downstream side of the weir, but the water is above the bottom of the edge of the gate, so it is submerged rather than free-flowing.

This table has flows calculated for a minimum area of 2.0 square feet (sq. ft.).  However, the area of the opening at John’s headgate is 2.0′ wide x 0.15′ high, or 0.30 sq. ft.  Fortunately, the equation, Q=0.70A(2g Δh)^0.5, is listed right at the top of the table.  We can calculate the flow using that.  Q is the flow in cfs, A is the area of the orifice hole, g = the acceleration due to gravity, or 32.2 ft/second^2 (feet per second squared), and Δh is the difference between the upstream and downstream water depth.

So the flow Q = 0.70 x (2.0′ x 0.30′) x (2 x 32.2 x 0.37′)^0.5 = 1.03 cfs.  So far so good – John is taking 52%, or just over half of his right when 100 percent of flows are available.  But, how much flow is actually available right now?

Let’s use the “sum of the boxes” method.  Instead of measuring the amount of water in Preacher Creek at the top, before any diversions, and then estimating how much flow is being lost to evaporation, transpiration, and infiltration, and then estimating how much flow is subsurface above John Casey’s ranch and “pops up” out of the ground below, we’ll look at what each diversion amount is, plus the amount still in the creek after the last diversion.  This is very useful because none of the instream losses have to be estimated – we just add the diversions and flow still in the creek, and that amount IS the available supply.

Water Board Permits and Licenses are usually not interrelated – they specify water rights without considering the other water rights on the stream.  This is different from adjudicated streams, whether done by the Water Board or the Department of Water Resources.  Some Superior Court judges in past decades were pretty smart and actually ordered that available flows be calculated by the sum of the boxes:

Susan_1_of_2_DecreeParaAvailWaterEqualsDiversionsSusan_2_of_2_DecreeParaAvailWaterEqualsDiversionsThe paragraph above, from the Susan River Decree, defines available water supply as what is being diverted, plus the flow passing the last diversion.

There are 4 diversions on Preacher Creek, and here are the amounts being diverted:

  • Diversion 1 (John Casey) 1.03 cfs  of a 1.60 cfs water right, 52% of his total right
  • Diversion 2 (Amy Hoss) 1.67 cfs  of a 3.80 cfs water right, 44% of her total right
  • Diversion 3 (Mark and Cindy Sample) 0.55 cfs  of a 0.88 cfs water right, 62% of their total right
  • Diversion 4 (Quint and Marcie Minks) 1.32 cfs  of a 2.50 cfs water right, 53% of his total right
  • Flow still in the creek past the Minks Diverison – Quint estimates about 0.7 cfs

The total diversion-plus-bypass flow is about 5.3 cfs.  The total rights on the creek are 9.48 cfs.  Therefore, the total available flow = 5.3 / 9.48 = 56%.

So, John is right, he is not stealing water!  He is taking 52% of his water right, when he could be taking 56% according to the “sum of the boxes” method.  Not only that, but Amy could take more, the Samples should reduce their diversion, and the Minks’s could take a tad more.  Well, that’s theoretical – Quint and Marcie Minks probably cannot seal up their dam completely, so there may be a little bit less flow actually available for diversion.

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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.

eWRIMS Board Water Rights Search – Part 3

This is the third part of the discussion of the Water Board‘s Electronic Water Rights Information Management System – eWRIMS.  In eWRIMS Board Water Rights Search – Part 2,  we looked at how to search by Water Right type, Status, ID, County, etc., and most relevant for finding your own, by Primary Owner.  Let’s search by Primary Owner “Metropolitan”:eWRIMS_search_dialog_Met - Edited 2

The results we get are all the names with the word “Metropolitan” in them, and first on the list are the Metropolitan Water District of Southern California:eWRIMS_search_results_Owner_Met - Edited

We’ll scroll down the page until we get to Application Number A006406.  By the way, if you have a Permit or License, or you are looking for one, that Application Number is important.  It is the unique identifier for these documents, sort of like the Assessors Parcel Number is the true unique identifier for your property for tax purposes.  A006406 is for an Appropriative Permit for with a face value of 1,085,950 acre-feet.  If we click on the number A006406 in the left column, we get this summary:Permit_Summary - Edited 2

The summary doesn’t have that much more useful information – what we really want to do is go look at the original document.  Click on the “View Permit” text in the upper left-hand corner.  Now you get to see a scan of the permit.  You can see that document by clicking here:  a006406  The first page of the permit is shown here.  And this is the information you want to see for your application, permit, or license, the actual face value, purpose, place of use, and so on.

Permit_7641_firstpage - Edited

In the same way, we can view and download Statements Of Use (SOU).  Clicking through the Summary is a little different – we scroll down the page and then pick the statement for the year we want.  Here is the summary for SOUs for one of the City of Santa Barbara’s Permits:SB_SOU_Sum - Edited

Clicking on the year 2015 brings up the following report, showing that under this Permit, Santa Barbara diverted a total of 287.8 acre-feet last year:

Santa_Barbara_SOU - Edited

That’s how we use eWRIMS to search for information on water rights and Statements Of Use.  Remember, many thousands of adjudicated and riparian rights, and some pre-1914 rights, are not in the database.  What do we do if we think there is a water right, and we’re not sure where the information is?

  1. Start with eWRIMS, and call the Water Board if the database answer is inconclusive.  You may have to call several times, these folks are way too busy.
  2. Call the Watermaster if it is an adjudicated water right under watermaster service.  Even if the right is under a decree with no Watermaster, whoever you call probably has a good idea of who to call next to find out.  Google the county and name of the stream to see if one of the first five or so results brings up a Watermaster’s name or phone number.
  3. Call the Clerk of the Superior Court in the county where the water right is.  Ask if they have a searchable index of some kind that would give you a Case Number for an adjudication.  Some counties even have old water rights books where you can search for a pre-1914 recording of a right.

That’s plenty for now.  Have a great weekend!

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!

Save Water? Ask Savers…And Depend On Capitalism

Faucet_Pixabay_water-1239368_1280
Pixabay, public domain

Do you think of Florida as short on water?  I sure didn’t; I have been there a couple of times and got rained on every day or two.  However, a University of Florida study on saving water concludes that if more conservation is needed, it’ll be easiest to get from those who already use less water.  That study is summarized in this short article.

On the opposite coast, what does that mean for California?  It means that voluntary conservation seems most likely to come from those who are reportedly conserving the most:  farms and communities in the San Joaquin Valley, and agencies and homeowners in the Los Angeles Basin.

1024px-USACE_Black_Butte_Dam_and_Lake
Black Butte Lake, Wikipedia

Does that mean that water districts and diverters in Northern California do not conserve?  There may be less conservation, especially if diverters have a reservoir.  Winter and spring flows are stored for later use.  Those flows would have gone to a a river and usually, out to the Pacific Ocean.  We’ll leave out the discussion of environmental uses of instream or stored surface water, except to say that they are one possible kind of use.  There are usually some senior water right holders who have first call to the water, or who get a higher percentage during a drought.

How about irrigators who have little or no water storage?  Since they depend on natural flows, droughts mean there is less flow available.  It’s not voluntary, but the diverters share the losses, either

FloodedField_Pixabay_nature-1252579_1280
Pixabay, public domain

with lower priority water right holders  shutting off first, or everyone taking a cut if everyone has the same priority.

The photo on the left shows flood-irrigation, which is the least efficient method and raises the hackles of downstream diverters, or just about anyone south of the Delta.  Flooding allows less productive land in California’s mountainous areas, often with shorter growing seasons, to be used to for pasture to raise cattle and other livestock, or for hay which might be used anywhere in the Western U.S.

3inPipePasture_Pixabay_spraying-294628_1280
Pixabay, public domain

Even though not required, flood irrigation is being replaced over time with more efficient methods.  Ranchers and farmers want to make scarce water stretch farther and irrigate more acres than flooding would allow.  Land is being leveled right now to make

SprinklerPasture_Pixabay_water-340468_1280
Pixabay, public domain

flooding go further.  Sprinklers are increasingly used, so that less is diverted in the first place.  Plain capitalism makes upgrades economical for the long-term.  This isn’t an instant result, like voluntary conservation brings, but more water is available for instream and downstream uses every year.

These irrigation improvements are part of the reason that the State Legislators, Governors, and the State Water Resources Control Board have been careful about what laws to impose in the

WheelLine_Pixabay_irrigation-403371_1280
Pixabay, public domain

upper watersheds.  Many of the rights in the upper Sacramento River Basin are defined in Superior Court Decrees, and so are senior rights.  However, the State has and still can make laws that reach back and change the rights in these old decrees.  Many of you diverters on these streams have continually explained to politicians and bureaucrats that suddenly modifying or qualifying water rights can wipe out billions of dollars of agricultural production overnight.

So, yes, the fastest voluntary conservation will be had in the southern two-thirds of the state.  And a lot of senior water right holders up where rain and snow fall, in the northern third of the State, may be experiencing the same or even greater percentage of involuntary reductions in diversions at the same time.  “One size fits all” conservation may still not be equitable.

That’s enough on this for today.  Let’s hope and pray that precipitation is higher than forecasts next winter!

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.

Water Rights Review, And What Are They Worth?

This is a review of what kinds of water rights we have in California, discussed here some months back in Water Rights – Why Do They Exist?  Which Kinds Are There?  As a water right holder, you are really interested in what kind of right you have.  Knowing what other water rights are is sort of academic, interesting but not necessary for day-to-day operations and the success of your farming or ranching business.

Even so, when the water supply is scarce you need to know what your neighbors’ water rights are both upstream and downstream of you.  We’re putting aside the issue of someone stealing water, and conflicts over diversion amounts.  Deferring the possibility of arguments, do they have a higher priority or seniority, compared to your water right?  Do other diverters have riparian rights, which would be senior to an appropriative water right?  The previous post in this blog is a good way to understand various surface water rights.  It’s always helpful to read another description in someone else’s words , and here is a really good list from Sandy Denn at the Family Water Alliance:  http://familywateralliance.com/water-rights-revisited/FamWaterAlliance_HmPg

The article has a brief and very handy description of beneficial use that is easy to remember:

“STATE CODE AND BENEFICIAL USE
The California water code was adopted in 1914. Since that time, water rights have evolved through many and varied decisions of case law and State Water Resources Control Board (SWRCB) actions which can carry the weight of law. A water right in California is a property right. For certain purposes, the right is treated as a real property right, yet for other purposes, it is purely usufructuary (i.e., a right to use). To preserve the right to use water, a beneficial use must be shown. Article X Section 2 of the California Constitution declares that the general welfare of the state requires that its water resources be put to beneficial use. In 1928, the voters of California approved a Constitutional amendment mandating that all waters in the state be “put to beneficial use to the fullest extent to which they are capable and that waste or unreasonable use of water be prevented…”

The kind and quantity of water right you have also affects the value of your land.  Sometimes, land with a good water right can be worth more than double the price per acre of an adjacent parcel with no surface water right.  In other locations, groundwater is used by most irrigators and surface water rights have less impact on the land value.  You may be interested in selling your property or buying someone else’s, so where can you find good information on how to value your water right?  This is what appraisers do, and the Northern California Chapter of the Appraisal Institute has a very good presentation on what goes into valuation:  http://www.norcal-ai.org/amass/doc-get-pub/article/252/Water_Rights_021010.pdf

NorCal_ApprInst_HmPg

This slide show also includes a discussion of highest and best use.  Water used for irrigation usually does not have to be used for the highest possible value or income, but it can be profitable to know what value the water could have.  This information is also good to have in your pocket if you face the issue of some or all of the land being taken by eminent domain, or by a mandated change of use , such as taking by the state or federal government for environmental benefit.  Here is one very useful quote from the presentation:

“…

Highest Highest and Best Use Analysis Analysis
If the value of the water right on the open market is worth more than its contributing value to the larger parcel under its existi ng use, then maximum value is attained by selling the water right separately.
 Example ‐ sell the appropriative water right for a beneficial use and convert the land to dry land grazing

…”

If you have any questions or comments, please comment here or contact me at RightsToWaterEng1@gmail.com.  It’s sprinkling here right now, and I hope that 2016 is a good water year for you.