|California Water LawBy Edward McCutchen
California Water Law is comprised of “Riparian Water Rights” and “Appropriative Water Rights”. The State Water Resources Control Board (SWRCB) has jurisdiction over water use permits in California and acts as arbiter of all disagreements over water rights. All water rights in the state must meet reasonable beneficial use standards; wasteful use of water can be contested and unreasonable use can be stopped by order of the SWRCB . Ground water taken from wells does not require a permit from the SWRCB unless the water taken comes from a clearly defined underground aquifer.
Riparian rights are those where water is extracted for use on lands that directly boarder the stream. Any owner of a parcel immediately adjacent to a water course has the right to take water for domestic and agricultural use at any time unless specific deed restrictions are stated in the title to the land. Riparian rights do not require a permit from the SWRCB. However, the SWRCB requests that riparian water users file a statement of diversion and use.
Water may be diverted from upstream areas for delivery to downstream riparian lands as long as agreements are in place with the land owner at the point of diversion and no damage is inflicted on intervening land owners. Riparian rights are not superior by virtue of prior use, so proposed new reasonable use and stream flow diversions have equal standing under the law. Because of these statues, the SWRCB cannot resolve differences between holders of riparian water rights. If insufficient water is available for all riparian users, ultimate recourse is in the courts. Water taken by virtue of riparian water rights cannot be impounded for deferred use. Riparian water rights also cannot be transferred to non-riparian owners.
The extent of lands having riparian status is determined by three criteria: (1) The land in question must be contiguous to the water course. The length of frontage is an immaterial factor. (2) The riparian right extends only to the smallest tract held under one title in the chain of title leading to the present owner. (3) The land, in order to be riparian, must be within the watershed of the stream. (Rancho Santa Margarita v. Vail (1938) 11 Cal. 2d 501).
As to any owner below the confluence of two branches of a water course, the drainage areas of both branches must be deemed to constitute a single watershed and the owner riparian to both branches. (Holmes v. Nay (1921) 186 Cal. 231).
A riparian owner may, for the more convenient use of the water on his riparian land, go upon the land of another farther up the stream, with the consent of such landowner, and there divert the water for use upon the land below. (Turner v. James Canal Co. (1909) 155 Cal. 82).
A riparian is only authorized to use that amount of water that is both reasonable and beneficial. (Sec. 3, Art. XIV, Constitution of California, California Water Code §§ 100, 101.)
Riparian rights are not determined by past geologic formations but by the present natural topography. (Rancho Santa Margarita v. Vail (1938) 11 Cal.2d 501).
A parcel of land loses its riparian status forever when severed from land bordering the stream by conveyance, unless the conveying document specifically reserves the riparian right. (Miller & Lux, Inc. v. J.G. James Co. (1919) 179 Cal. 689).
The riparian right is neither created by use nor lost by non-use. (Lux v. Haggin (1886) 69 Cal. 255).
If there is insufficient water for the reasonable beneficial requirements of all riparian owners, they must share the available water supply. Apportionment is governed by the circumstances of each case, including each owner’s reasonable requirements and particular uses. A riparian owner who uses water for domestic purposes (household use, watering of domestic animals, etc.) may take the whole supply over one who uses it for other purposes. (Deetz v. Carter (1965) 232 Cal.App.2d 851).
A riparian right is subject to those appropriative rights that were perfected, as the result of the diversion of water, prior to the date of vesting of the riparian right, which is when the grant from the United States government was obtained. Otherwise a riparian right is generally superior in right to an appropriative right. (Haight v. Costanich (1920) 184 Cal. 426; Pleasant Valley Canal Co. v. Borror (1998) 61 Cal. App. 4th 742).
The riparian right cannot be transferred for use upon a non-riparian parcel of land. (Holmes v. Nay (1921) 186 Cal. 231).
The riparian right does not apply to foreign water; i.e. water originating in a different water shed, or stored and released by another user. (Stevinson Water District v. Roduner (1950) 36 Cal.2d 264; Bloss v. Rahilly (1940) 16 Cal. 2d 70).
A riparian right does not grant the right to store the water for seasonal use (generally greater than 30 days). (Colorado Power Co. v. Pacific Gas & Electric Co. (1933) 218 Cal. 559).
Appropriative Water Rights
There are two types of appropriative water rights recognized in California, pre-1914 rights, and post-1914 rights which arose after “riparian rights” were established in California.
In 1872, the California Legislature enacted sections 1410 through 1422 of the California Civil Code. These code sections were in effect until December 19, 1914. Hence the name “pre-1914.” These sections established the procedure for fixing the priority of an appropriation of water. Generally, the person intending to obtain the right was required to first post a notice of appropriation at the proposed point of diversion and then to later record a copy of the notice with the appropriate County Recorder. If these procedures were not followed, the priority of the appropriative right did not attach until the water was beneficially used. (Duckworth v. Watsonville Water Co. (1910) 158 Cal. 206).
Once acquired, a pre-1914 appropriative right can be maintained only by continuous beneficial use of the water. The right is not fixed by the amount claimed in the original notice of appropriation; the notice of appropriation really only fixes the date of priority. The amount of the right is fixed by the amount that can be shown to be actually beneficially used as to both amount and season of diversion.
The rights acquired under a pre-1914 water right can be lost.
In order to provide notice to others of the existence of a pre-1914 water right, it is recommended that one who asserts owning such a right file with the State Water Resources Control Board a “Statement of Water Diversion and Use.”
On December 19, 1914, the California Legislature adopted Division 2, Part 2 of the California Water
Code. The enactment of Division 2 fundamentally changed the procedures for obtaining an appropriative water right.
The steps, generally, that now must be taken in order to initiate and acquire an appropriative water right are as follows:
a. File an Application to Appropriate Water with the SWRCB .
b. File an Environmental Information form with the Application.
c. Submit a map of the area (which may have to be drawn by a registered civil engineer depending upon the size of the appropriation sought).
d. Include a $1,000 application fee to the SWRCB and an $850 application fee to the Department of Fish and Game.
e. Enter into a Memorandum of Understanding with the SWRCB for the preparation of environmental documents.
The application forms can be obtained from the SWRCB, located at 1001 I Street, Sacramento, CA or on the internet. The steps described above can become very complicated and any person who would like to apply for a water right should contact an attorney who is familiar with them. Supplying incorrect or incomplete information during these steps can forever prejudice a hopeful applicant and result in unnecessary costs or the denial of the application.
There are two special subsets of appropriative water rights called a “small domestic registration,” and a “small livestock stock pond registration.” These “registrations” allow a person to obtain a permit for the appropriation of water, if water is available, for these uses as long as the amount of water sought does not exceed 4500 gallons per day or 10 acre-feet per year. The processing of these two types of rights is streamlined and does not normally require as much documentation as the typical appropriative water right application.
Loss of Appropriative Rights
Abandonment: To constitute abandonment of an appropriative right, there must be the intent and the actual relinquishment of the right. Thus, abandonment must be voluntary.
Nonuse: Nonuse is different from abandonment. Nonuse simply means the failure to put the water to beneficial use for a period of five years. It is also called "forfeiture." (Water Code Section 1241; Lindblom v. Round Valley Water Co. (1918) 178 Cal. 450; North Kern Water Storage Dist. v. Kern Delta Water Dist. (2007) 147 Cal.App.4th 555).
Disputes Over Use of Water
The right to use water is a property right and is protected in a number of ways. The individual who believes that his or her water right is being infringed upon may file a complaint with the SWRCB, or may institute court action. The SWRCB if consulted, may investigate and possibly fine the wrongful user if it finds that an individual is using water unlawfully. If a suit is instituted in court, the court may enjoin the wrongful user, or it may award damages to the rightful user of the water if it finds that an individual is using water in a manner that is wrongfully denying another the use of the water.
The SWRCB will not become involved in a dispute concerning the validity or exercise of a pre-1914 or riparian right, only a court of competent jurisdiction may do so. Generally, the SWRCB’s authority to determine the validity of a water right extends only to appropriative water rights initiated post-1914, unless petitioned by one or more claimants to engage in a statutory stream adjudication, in which case the Board is empowered to determine all rights to water of a stream system whether based upon appropriation, riparian right, or other basis of right. (California Water Code § 2501). Such adjudications are extraordinarily time consuming and expensive.
As a general rule, holders of appropriative water rights are junior to riparian right holders. Amongst those holding appropriative rights, the rule is first in time is first in right where the senior appropriator is entitled to divert and use as much water as he or she has the right to before a junior appropriator is entitled to divert and use and water.
If there is insufficient water for riparians and senior appropriators, then the junior diverter must cease his or her use. If there is insufficient water for riparians, then all appropriators must cease their use of diverting water.
Jurisdiction over groundwater is generally left to the county within which the groundwater lies. The jurisdiction of the SWRCB extends only to surface water and subterranean streams flowing through known and definite channels. (Water Code § 1200).
Generally, landowners have the right to withdraw water from an underground aquifer for reasonable beneficial use on their overlying land. This right to withdraw water is correlative (similar to a riparian right holder’s) with all the other landowners overlying the same aquifer.
With respect to a spring which has no natural outlet, the owner of the land in which it lies, under ordinary circumstances, owns the water as completely as he does the soil. (State of California v. Hanson (1961) 189 Cal. App. 2d 604). Such water may be used without obtaining a permit from the State Water Resources Control Board; however, a “Statement of Water Diversion and Use” should be filed with the SWRCB.
If a spring contributes to a flowing stream, a permit from the SWRCB must be obtained, unless the water can be used under a riparian water right.
The “public trust” is a legal concept imported from Roman law into English common law. From this origin in Roman law, the concept of the public trust evolved, under which the federal government owns all of its navigable waterways and the lands lying beneath them as trustee of a public trust for the benefit of the people. The states acquired title as trustees to such lands and waterways upon their admission to the union. Historically, the trust applied only to navigation and similar uses in navigable waterways. However, in National Audubon Society v. Superior Court of Alpine County (1983) 33 Cal. 3d 419, the California Supreme Court expanded the trust to include public interests in non-navigable waterways. Thus, the scope of the public trust in California is very broad. California Water Law.
Current Water Shortage
On January 17, 2014 Governor Jerry Brown proclaimed a drought state of emergency in California and instructed the SWRCB to advise water rights owners that they may be directed to reduce or cease water diversions from streams and rivers later due to low water conditions. The notices were targeted to junior water rights holders.