California water law is complex, governed by both state and federal law, part property law and part environmental law. The system incorporates a traditional water rights riparian system with the appropriative system found elsewhere in the West with the result being confusion that often leads to more questions than certainty.
At a recent staff training session at the State Water Board, Senior Staff Counsel Dana Heinrich gave this introduction to water rights in California where she explained the legal distinction between surface water and groundwater, the different types of surface water rights and groundwater rights, the public trust doctrine, the prohibition against the waste and unreasonable use of water, water right change petitions, the water board’s enforcement authority, and statutory stream adjudications.
WHAT IS A WATER RIGHT?
A water right is the right to divert water and put it to beneficial use. In the State Water Board’s regulations, the recognized beneficial uses include domestic use, irrigation, municipal and industrial uses, mining, power generation, recreation, fish and wildlife protection, stock watering, aquaculture, frost protection, and water quality. Ms. Heinrich pointed out that flood control is actually not a beneficial use for purposes of water rights.
A water right is a usufructuary right which is a legal way of saying it is the right to use water, but the water itself is actually owned by the people of the state of California. “That’s an important concept because the public retains a significant interest in water resources which are a public resource and the law protects that public interest in a variety of ways,” she said.
“Another important concept is that not all entities or people who divert and use water are water right holders,” she continued. “Many diverters actually have water supply contracts with water right holders, so contractors have to abide by both the terms of their contract which can vary as well as the parameters of the water right.”
SURFACE WATER AND GROUNDWATER, DEFINED
Water right law divides water into two basic classifications: surface water and groundwater. Surface water is defined under the water code as streams and lakes, as well as a legal construct called a subterranean stream. Everything that’s not basically surface water is considered percolating groundwater.
“The distinction between water in a subterranean stream and percolating groundwater is important because our surface water permitting system only applies to surface water, including water flowing in subterranean streams,” said Ms. Heinrich. “It does not apply to percolating groundwater, although with the passage of Sustainable Groundwater Management Act, now groundwater is regulated under SGMA but our permitting system doesn’t apply to percolating groundwater. There is the legal presumption that groundwater is percolating groundwater unless there is evidence to the contrary.”
The State Water Board has developed a four-part test for determining whether groundwater is part of a subterranean stream which was recently upheld in the North Gualala Water Company v. State Water Resources Control Board case ((2006) 139 Cal.App.4th 1577): There needs to be a subsurface channel, relatively impermeable bed and banks, the course of the channel needs to be known or capable of being known through reasonable inference, and groundwater needs to be flowing in the channel. Oftentimes, there is groundwater flow discharging into the alluvium and then the alluvium is discharging into the surface water stream, which is interconnected groundwater, but Ms. Heinrich noted that the test for a subterranean stream is not an impact test; application of the four-part test determines whether water is in the subterranean stream or not.
“Subterranean streams are not the same thing as interconnected groundwater, and it is at least hypothetically possible to have something that satisfies the test for the subterranean stream that is not connected in any way to a surface water body,” she said. “Conversely, just because groundwater is interconnected with the stream, whether gaining or losing, doesn’t mean that it’s a subterranean stream.”
TYPES OF WATER RIGHTS
There are five different types of surface water rights, and basically for every type of surface water right, there’s a corresponding groundwater right. For surface water, there are riparian rights, pre-1914 appropriative rights, post-1914 appropriative rights, pueblo rights, prescriptive rights, and federal reserved rights. The groundwater rights that correspond to riparian rights are called overlying rights; there are also appropriative rights, pueblo, prescriptive, and federal reserved rights to groundwater.
“The main distinction between surface water rights and groundwater rights is our permitting system,” Ms. Heinrich said. “Since 1914, a water right permit from the State Water Board or its predecessor has been required to get an appropriative right to surface water. That is not the case with respect to groundwater, although groundwater is now being regulated under SGMA.”
Riparian rights
A riparian right is the right to reasonably and beneficially use water on riparian land, which is defined as land that is adjacent to a surface water body. Riparian rights are part and parcel to the land, so they can’t be separated from the land; when the land is sold, the riparian right is sold along with it.
Riparian rights are also subject to severance, so if land is subdivided such that one parcel is no longer contiguous to a stream, the riparian rights that were attached to that land go away unless there is some language in the deed or other evidence of intent to retain a riparian right. But basically the law does favor riparian rights, so once the land is no longer touching the surface water body, normally the right is gone, she said.
So on the graphic, if Parcel A is sold and separated from Parcel C and there was no evidence of an intent to retain a riparian right, then parcel A would lose its riparian rights. On Parcel B, the water can be used on the land that is contiguous to the stream, but land outside the watershed cannot be supplied with water under riparian rights.
Riparian rights only extend to natural flows; they don’t extend to ‘foreign water’. Water can be considered foreign if it’s been imported into the watershed from a different watershed. It can also be foreign in time, such as releases from upstream storage. Any time water that would not under natural conditions be present is considered foreign water and riparian rights don’t attach to that, she said.
“That’s important because, for instance, if you’re looking at whether a riparian right holder might be injured by some change that takes place upstream, if the nature of the change is only affecting foreign water to which the riparian right holder is not entitled to begin with, then there’s no injury to that riparian right holder,” she said.
Water cannot be seasonally stored under riparian rights, which is generally taking water during a time of surplus and holding it for use later during a period when water is in short supply.
Riparian rights are correlative to one another, which means that they all have the same priority, regardless of the patent date of the land; they are all basically on equal footing. When there isn’t enough natural supply to satisfy all the riparian right holders, they are all supposed to cut back, but there isn’t a set procedure for how that happens.
Riparian rights also generally tend to be senior to appropriative rights, although the priority of the riparian right dates to the time the land was patented. Ms. Heinrich noted that there are appropriative rights out there with very old priority dates, so it’s conceivable that if an appropriative right were developed with a priority date older than the patent date of the riparian right, then the appropriative right can be senior to riparian rights, but as a general rule, riparian rights are senior.
Because they are based on land ownership, riparian rights don’t have to be exercised in order to be retained. In other words, they can be dormant and unused and they are still part of the land, even if they are not used, and they retain their seniority. Ms. Heinrich noted there are exceptions, such as during a statutory stream adjudication, the water board can actually subordinate the seniority of unexercised riparian rights to otherwise junior appropriative rights; it is not common but it has happened in the past and so that possibility exists.
Overlying rights
Overlying groundwater rights are analogous to riparian rights; they attach to land overlying a groundwater basin. Similar to riparian rights, the water can only be used on the overlying land and can’t be exported outside the groundwater basin.
Overlying rights only extend to native water within the groundwater basin. For example, down in Southern California in particular, a lot of water districts recharge their groundwater basins with imported water; that’s foreign water, so overlying rights don’t attach to that imported groundwater. With groundwater recharge, if you are specifically storing surface water underground, legally that is considered a surface water, so it is not groundwater in that circumstance and it becomes no different than if you were storing it in a surface water reservoir.
Overlying rights, like riparian rights, are senior to appropriative rights to the same groundwater basins. They are correlative with one another and they are not subject to loss for non-use, so they exist as part of the overlying land. Overlying rights are typically exercised by agricultural users because the water has to be used on the overlying land and typically the use is agricultural.
Appropriative rights
There are three types of appropriative water rights; pre-1914, post-1914, and appropriative rights to groundwater.
Appropriative rights date back to the Gold Rush era. Miners typically needed water to work their claims in California and elsewhere in the west, but they didn’t own the land as usually it was federal land they were operating on, so local customs for allocating the water were developed and were typically on a priority system of ‘first in time, first in right’. Later those local customs were ratified by the law and eventually it developed into the appropriative water rights system we have today.
Appropriative rights, unlike riparian and overlying rights which are based on land ownership, are based on the actual diversion and use of water. They can be developed over time, so a diverter can start small and grow, but there’s a fundamental concept where appropriative rights have to be developed with due diligence – you can’t just hoard water on future plans and never fulfill them and prevent anyone else from coming along and appropriating water.
Appropriative rights are not limited to riparian land or overlying land; they can be exported outside the watershed. They also are not limited to native water like riparian and overlying rights, so if there’s an upstream appropriator who imports water into a watershed, that return flow is available for appropriation downstream as long as it is abandoned by the party that imported the water to begin with. With appropriative rights, water can be stored.
The priority of appropriative rights relative to one another is based on the concept of ‘first in time, first in right’ with the priority date based on the date when the appropriator first manifests intent to develop the appropriative right. They are subject to forfeiture or loss from non-use.
All appropriative rights to surface water have certain components. They are a right to a particular source so they are not fungible; it’s based on the actual diversion and use from a particular water body. Appropriative rights are limited to a particular quantity that is based on actual diversion and use and is usually measured in terms of a rate, either miner’s inches or cubic feet per second or gallons per day, and a total volume, usually measured in acre-feet or both.
Appropriative rights are limited to a season of diversion; it can be year round, but most often is for an irrigation season. Appropriators have a particular priority of right, a particular point of diversion, a place of use, and purpose or purposes of use. The components on the pie chart in red are generally not subject to change; the yellow components are subject to change, depending on the circumstances.
“These are the foundational components of an appropriative right,” said Ms. Heinrich. “Most modern appropriative rights also have many other permit conditions, like reporting requirements, monitoring requirements, and the like. But these are sort of the foundational components of all appropriative rights.”
Pre-1914 appropriative rights
Surface water rights can be divided into pre-1914 and post-1914 appropriative rights, depending on whether they were initiated before or after the effective date of the Water Commission Act of 1914, which was the legislation that created the permitting system that the State Water Resources Control Board now administers. Prior to that date, appropriative rights were developed in accordance with the common law that came out of those early mining customs, but since 1914, the exclusive way to obtain an appropriative right to surface water is by getting a permit from the State Water Board.
“Before the December 1914 effective date of the Water Commission Act, there was a civil code procedure for posting and recording a notice of your intent to appropriate water and developing an appropriative water right, but it was optional,” Ms. Heinrich said. “So just because a party didn’t follow those procedures doesn’t mean that they don’t have a valid pre-1914 right; the benefit to it was that it established a clear date for the priority of the pre-1914 right. It was good for record-keeping but wasn’t mandatory.”
She also noted that pre-1914 appropriative rights needed to be initiated before December 19, 1914, but not necessarily completely developed by that date. “There’s a doctrine called progressive use and development, so if a pre-1914 appropriator establishes an intent and initiates the development of a pre-1914 right – remember I said it could be developed over time, so particularly for a small town or something like that, as long as there was a pre-1914 plan of development and that is followed with due diligence, then you can actually have pre-1914 rights that sort of straddle December 19, 1914; so they didn’t have to be completed by that date, but they did have to be initiated by that date.”
Post-1914 appropriative rights
There are three basic types of post-1914 appropriative surface water rights: permits and licenses (which are essentially the same type), temporary permits, and registrations. Ms. Heinrich also noted that there used to be provisions in the water code for acquiring a stock pond certificate and federal non-reserved statements, but those programs have expired, so although people cannot file for those anymore, those that did file before the statutory deadline still may be utilizing those rights.
There is a three-step process for obtaining a post-1914 appropriative right to surface water:
Step 1: An application is filed with the Division of Water Rights who issues a notice of the application. Protests can be filed on the basis that the appropriation would interfere with senior water rights, adversely affect fish and wildlife, or other public trust resources, or would not be in the public interest. Depending on whether those protests are resolved, the Board may hold a hearing to resolve the protest or any other material issues of fact that need to be resolved in order for the Board to act on the application.
The Board also has to comply with CEQA, the California Environmental Quality Act, before acting on an application unless the project is exempt. Ms. Heinrich noted unfortunately there are a lot of illegal projects out there, and often for those projects, an existing facility exemption under CEQA applies.
Step 2. Assuming the Board approves an application, a permit is issued. Generally, for projects that have not been constructed before obtaining a permit, there is a period of development when the permittee is authorized to go out and build their project, build their diversion facilities, and start applying water to beneficial use. During that time, they submit annual reports documenting their progress.
Once that period is over, the Division conducts a licensing inspection. If the Division finds that water has not been diverted and applied to beneficial use in accordance with the terms of the permit, then the permit can be revoked, but assuming that the Division confirms actual diversion based on the licensing inspection and the progress reports and any other relevant information in the application file, and the use is in accordance with the permit, then a license is issued confirming the right to the amount of water that’s actually been applied to use. So the license can be issued for less than the full face value of the permit, depending on how much water the permittee has actually put to use.
“The two-step system whereby first a permit is issued and later a license is issued reflects the legal principle that an appropriative water right is only acquired through the actual diversion and use of water,” said Ms. Heinrich. “So a permit when it is issued is not actually a water right. It’s what’s called an inchoate right to develop an appropriative right by diverting and applying to beneficial use water. A license is significant because it documents and it confirms that the permittee has done that, so a license is a vested water right.”
She acknowledged there is currently a licensing backlog due to staffing shortage and other division priorities. “So it’s not to say because there are projects out there that have been completed and are still operating under permits that those projects are somehow illegal,” she said. “They can operate that way indefinitely. It’s just that there’s always going to be uncertainty as to the validity and the scope of the right unless or until it is licensed.”
The most substantive requirement for a water right application is the water availability analysis. Under the water code, the water board is charged with determining whether there’s surplus water available for appropriation and that means looking at the demands of senior water right holders and how much water needs to remain instream for fish and wildlife and water quality and other instream beneficial uses.
“That sounds pretty straightforward in concept but in reality, the analysis can actually be quite complex,” she said. “How much water may be available at a given point on a stream can be quite complicated because you have to look at upstream demand, downstream demand, instream flows, and how much water is available, and then you back out the demands for senior water right holders and instream flows and see if you have anything left that’s available for appropriation.”
The State Water Board also has broad public interest authority, so it is charged with evaluating the public interests in whatever use the appropriator or the applicant wants to put the water to, weighing that against competing demands for the water, and deciding whether and under what conditions issuing a permit is in the public interest. The public trust doctrine and the reasonable use doctrine also come into play in the application process.
On the slide, the permit terms shown in green are the permit terms that are always in permits; those shown in yellow are usually in permits in addition to those shown in green. The components shown in green are the same basic components of appropriative rights: a specified source, a quantity, a season, and a priority date which, for permits, is based on the date when the application was filed.
Ms. Heinrich noted that there are deadlines to enforce the due diligence requirement for appropriative water rights, so there is a deadline to complete construction and a deadline to complete the application of water to beneficial use. The point or points of diversion and sometimes rediversion are specified, as well as the place and purpose of use and a reservation of authority to make future changes as warranted to the permit.
She also noted that for modern day permits, there’s almost always additional terms to protect senior water rights such as bypass flow conditions or to protect instream flows; there are often terms that specify the CEQA mitigation measures for environmental impacts.
Registrations
Registrations are for minor appropriations. There are three types: small domestic, livestock stock pond, and small irrigation. The allowable quantities are the same for small domestic and livestock stock ponds which is not to exceed 4,500 gallons per day by direct diversion or 10 acre-feet per year. For small irrigation registrations, the amounts are 42,000 gallons per day by direct diversion or 20 acre-feet per year by storage.
Essentially, the processing of a registration for the Division of Water Rights is ministerial. The right is obtained by filing a registration that meets statutory requirements with the Board and then applying water to beneficial use.
“Our job is to ensure that the statutory requirements are met,” said Ms. Heinrich. “The Department of Fish and Wildlife has more discretion to impose custom conditions on particular registrations.”
The Board maintains a list of fully appropriated streams and registrations cannot be filed for a fully appropriated stream. Registrations are exempt from CEQA, and they are only effective for five years but they can be renewed.
The Board is required to prepare an annual report that compiles how much water has been appropriated under registrations. The water code says that the report is to describe also streams that the Board anticipates may become fully appropriated during the next reporting period; registrations filed on that stream are not effective immediately as the Board has to make an affirmative determination that water is available for appropriation under registrations on the stream. So when it’s getting close to the point where the stream is fully appropriated, the process is not quite as automatic, she said.
Appropriative groundwater rights
Appropriative groundwater rights are analogous to appropriative rights for surface water. They are acquired through the actual pumping and use of water and are not limited to use on the overlying land. Groundwater can be exported out of a watershed under an appropriative water right or exported away from the groundwater basin. They are not limited to non-native water; an appropriator can divert imported water as long as its abandoned, but if the importer imports the water and recharges the groundwater basin with the intent to recoup that water, then that’s not considered abandoned and it’s not available for appropriation. The same priority system applies: first in time, first in right. Appropriative rights to groundwater are subject to forfeiture for non-use.
“The big difference is no permitting system,” said Ms. Heinrich. “Now we have SGMA, so hopefully that will bring some regulation and better practices to groundwater use.”
Pueblo rights
Pueblo rights are the highest priority rights that are held by a city. These rights can apply to a city that was once an historic Spanish or Mexican “pueblo” if the city has been deemed to “succeed” to all the rights, claims, and powers of the Pueblo in regard to property, and water allocation. There are only a handful of pueblos in California, so these types of rights rarely come up.
“If you are a city and you’re lucky enough to be a successor to one of these historic pueblos, then you may have pueblo water rights which are paramount rights to whatever native surface or groundwater originated in the original pueblo,” said Ms. Heinrich. “The water can be used anywhere within the modern city’s limits, but it is limited to whatever water was available within the pueblo.”
Since pueblo rights are not based on actual diversion and use but instead are based on the city’s interest in the pueblo, they are not subject to forfeiture or prescription. There have been two confirmed pueblo water rights, which are held by the City of Los Angeles and the City of San Diego.
Ms. Heinrich noted that as she was preparing for this seminar, she took a look to see what other pueblos might be out there. “San Jose, Santa Barbara, Monterey, San Francisco, and Sonoma are all on the site of a historic pueblo, but there was a procedure for filing claims a long time ago, and I don’t know if they followed them and if they might have a claim to hold pueblo rights or not.”
Prescriptive rights
A prescriptive right is acquired by taking water to which another water right holder has a senior claim to you; this is analogous to adverse possession in property law. The elements for a prescriptive right are that you have to actually use the water, the use has to be open and notorious for a period of five years or more and the use has to be adverse and hostile to the other water right holder or water right holders.
Ms. Heinrich noted that the use needs to be continuous and uninterrupted for period of five years or more, but that doesn’t mean that the adverse use has to be constant 24/7 year round. A prescriptive right can be acquired for a particular season, but the prescriptor has to be adversely using water during that season for a period of five years or more.
She acknowledged that it’s really tricky in the groundwater context. “In the surface water context, it’s a little more straightforward; if you have a water right and suddenly the stream at your point of diversion dries up because somebody upstream with a junior water right is taking your water, it’s pretty clear that their use is adverse,” she said. “In the groundwater context, it may not be clear that someone is taking water to which they are not entitled, so what the courts have held when this issue has come up is that the adversity element is satisfied when the basin goes into overdraft, and at that point, if you have juniors who are taking more than their fair share and driving the groundwater basin into overdraft, then the adversity element is satisfied.”
Another important point about prescriptive water rights is that you can’t prescript against the state. “You can’t get a prescriptive water right by diverting water for which a permit is required by diverting water without authorization,” she said. “So if you need a surface water permit in order to seasonally store water, you can’t just seasonally store water and then say, I have a prescriptive right now. Not against the state, you don’t. That’s an important limitation.”
Federal reserved rights
Federal reserved rights extend to federal land that has been withdrawn or reserved from the public domain, such as forest service lands, national parks, and Indian reservations. Federal reserved rights are rights to serve the primary purpose of the reservation, but not secondary purposes.
If the State Water Board is called upon to adjudicate a reserved right, then regular state law needs to be followed to acquire those rights, Ms. Heinrich said. Priority is usually based on the date when the reservation was established; one possible exception is some Indian treaties recognize preexisting rights that the Tribe held that are actually senior in priority to the date when a tribal reservation was established.
Federal reserved water rights are not dependent on actual use so they’re not subject to forfeiture, and they apply to both surface and groundwater.
THE PUBLIC TRUST DOCTRINE
The public trust doctrine is a common law doctrine that protects public trust uses of navigable water bodies which are navigation, commerce, fishing, recreation, and the preservation of fish and wildlife habitat. To determine whether a water body is navigable or not, there’s a navigable in fact test: If you can put a recreational vessel at least part of the year on a water body, it’s considered navigable, or in other words, if you can kayak it, it’s navigable.
The National Audubon Society versus the Superior Court Case in 1983 was a challenge to the Los Angeles Department of Water and Power’s diversions from four streams that were tributaries to Mono Lake, a terminal lake on the east side of the Sierra mountains. The licenses were long-standing and had a priority date back in the 40s. The licenses authorized LADWP to basically appropriate all the water from those four tributaries, and over the course of a couple of decades, they had drawn down the lake by more than 40 feet. The lake supports brine shrimp and provided nesting habitat for migratory birds, so LA DWP’s appropriations were threatening the ecosystem of the lake and recreation around the lake as well as air quality.
The court held that the public trust doctrine applies to non-navigable water bodies to the extent that a diversion from those water bodies impacts navigable water bodies. Mono Lake was navigable. The streams that LA DWP was diverting from were not considered navigable, but nonetheless the public trust doctrine applied to their diversions.
“The Court held that the Water Board has a duty to consider public trust in making allocation decisions to protect the public trust where feasible and in the public interest,” said Ms. Heinrich. “So the water board doesn’t have to afford perfect and absolute protection; it can actually authorize appropriations that do harm to public trust resources, but the Board has to consider it and balance the public trust values against the other public interests in the appropriation.”
After that case was decided, the water board reopened LA DWP’s licenses, held a hearing, balanced the competing needs for water, and cutback on LA DWP’s diversions, required them to curtail to the extent necessary to restore the lake to a particular level and maintain that level in order to afford reasonable protections to the public trust resources of Mono Lake.
Ms. Heinrich also noted a 2018 court case affirmed that the public trust doctrine also applies to interconnected groundwater, even percolating groundwater, so just like a non-navigable surface water body, if groundwater pumping is impacting a navigable water body, then the public trust doctrine does apply to that groundwater pumping.
WASTE AND UNREASONABLE USE DOCTRINE
The waste and unreasonable use doctrine is embodied in both the California Constitution and the water code that prohibits against the waste, unreasonable method of diversion, or unreasonable method of use of water. The doctrine applies to all water use, surface and groundwater, under any type of water right. There’s no definition of what is reasonable; it’s a fact-specific determination and it can change over time. For instance, in a time of plenty, an irrigation practice might be considered reasonable but as the demand increases, that irrigation practice may no longer be considered reasonable.
The Board is charged with taking all appropriate actions to prevent the waste or unreasonable use of water, and the Board has exercised this authority in a variety of ways. One example is back in the 1980s, the Board issued orders to the Imperial Irrigation District after they determined that their irrigation practices were wasteful and unreasonable because excessive runoff was causing flooding. That ultimately led to a number of conserved water transfers where Metropolitan Water District of Southern California and San Diego County Water Authority, and to a lesser extent, Coachella Valley District, all paid for conserved water transfers, so the proceeds of selling the water paid Imperial Irrigation District to implement conservation measures to free up the water for sale to the urban areas.
Another example of the Board’s exercise of its waste and unreasonable use authority was on the Russian River where the Board adopted a regulation that applied to all diverters in the Russian River watershed that divert water for frost protection. Due to the instantaneous water demand for frost protection, there were some stranding events that killed endangered salmonids, so the regulation basically found that that was not reasonable when there were alternatives and diversions could be coordinated or alternative methods of frost control could be employed to avoid stranding.
A final example is during the drought, the drought emergency regulations that the Board adopted requiring water conservation that said that certain practices during the drought emergency were unreasonable, such as washing down driveways and sidewalks with potable water.
CHANGES TO WATER RIGHTS
There are instances when a water right holder may want to make changes to the way in which they exercise their water right, or they may want to transfer water which requires changes in the parameters of their water right. Generally speaking, because riparian rights and overlying rights are limited to riparian or overlying land, those rights can’t be changed. Those water right holders can change their point of diversion and they can change their purpose of use, but generally speaking they can’t transfer the water because it has to be used on that land.
However, some components of appropriative rights can be changed which are shown in red on the slide.
“There’s a fundamental rule that you can’t, through a change, expand your water right,” Ms. Heinrich said. “You can’t change the source, you can’t increase the quantity, you can’t expand your season of diversion, and with possible exception, if you acquire a prescriptive right as against somebody else, your priority might change, but generally speaking, your priority can’t change either.”
An appropriative water right holder can change the point of diversion, place of use, purpose of use, or other permit terms and conditions with certain limitations, the most significant of which is the no injury rule which means that the change can’t result in an adverse impact to another legal user of water. Legal users of water are not just senior water right holders; the no injury rule also protects junior water right holders because relative to them, your change is junior. It also protects contractors who are considered legal users also for purposes of the no injury rule.
Changing the point of diversion can be straightforward sometimes and very tricky in others. “For instance, you can move upstream onto a tributary so long as there’s hydraulic continuity between your old point of diversion and the tributary, and you’re not taking water that would otherwise be unavailable to you at your old point of diversion,” she explained. “So generally moving upstream, as long as there’s hydraulic continuity, is okay. Same as downstream, if you do the accounting and you’re not taking advantage of say, a tributary that comes in between and is supplying more water than you would have available above that confluence of that tributary, for instance. … In most cases, it’s going to be pretty straightforward because somebody’s going to want to move their diversion and it’s not going to be very far from the original point of diversion, but the farther afield they go, so to speak, the more difficult the question.”
She also noted that pre-1914 appropriative rights can be changed, subject to the no injury rule. For post-1914 appropriative rights which are permit or licensed rights, approval from the water board is needed.
Change petitions
There are a number of different types of change petitions. There are both short-term and long-term change petitions and the procedures vary, depending on the type of change that it is. There are more streamlined procedures for evaluating temporary changes or temporary urgency changes.
For temporary changes, there’s a CEQA exemption, although there isn’t one for temporary urgency changes, but for temporary changes, the change is limited to water that would otherwise be consumptively used or stored in the absence of the change, she said.
There is a petition process for changes in the discharge of treated wastewater which are processed by the Division of Water Rights. 1707 petitions are a unique type of petition whereby any type of water right holder including a riparian right holder can dedicate water to instream beneficial use. And generally speaking, for all petitions, the Board has to find that there would be no injury to other legal users of water and no unreasonable impacts to fish and wildlife.
ENFORCEMENT AUTHORITY
In terms of the Board’s enforcement authority, the Board can issue Administrative Cease and Desist orders which order a diverter to cease or desist from an unlawful activity. Those can be issued in response to the prohibition against unauthorized diversion and use of water such as someone is diverting water without a permit and they need one, for any term or condition of a permit, license, registration, or certificate, board orders or decisions, board regulations, SGMA requirements, and certain requirements that apply to cannabis cultivation.
The Board can also issue Administrative Civil Liability (or ACLs) which are administrative penalties that can be issued for basically the same list of violations. The maximum penalty is $1000 a day for violating a cease and desist order and $500 a day for most other violations, but Ms. Heinrich noted there are a lot of exceptions to that, including exceptions for violations that occur during drought periods, and the exceptions are too numerous to list here.
“The Board may be called upon to evaluate the validity of a riparian right or a pre-1914 appropriative right,” she said. “Often, if somebody is diverting without a permit and there’s an inspection or there’s a complaint, the diverter will say, ‘I’m riparian’ or ‘I have a pre-1914 appropriative right’, and that’s when the water board may be called upon to evaluate the validity of that claim. The Board’s authority to do so has been affirmed in several recent court cases.”
STATUTORY STREAM ADJUDICATIONS
The procedures for statutory stream adjudications are laid out in the water code. A statutory stream adjudication has to be initiated by a petition from a claimant; the Water Board can’t decide on its own that it wants to adjudicate a particular stream system. If the Water Board does receive a petition, the Board can do a preliminary investigation and decide to conduct the adjudication or not.
In a statutory stream adjudication, all the water rights to a stream are determined – not just post-1914 appropriative rights, but the riparian rights, the pre-1914 appropriative rights, the federal reserved rights, and whatever else might be out there. It does not include interconnected groundwater, except for the Scott River, because it has a special statutory exception.
The process begins on the administrative side with a proceeding conducted by the Board and culminates in a court decree. The basic procedure is that the Board conducts an investigation and prepares a preliminary order of determination; there may be a hearing on objections to the preliminary report and order of determination; then the Board issues its final order of determination which is then submitted to the Court. The Court holds its own hearing then ultimately issues a decree.
“The good thing about statutory stream adjudications is they bring certainty,” said Ms. Heinrich. “Now everybody knows for those rights that aren’t permitted or licensed whether they are valid or not and the extent of those rights, but they can also be very time consuming and expensive, although the Board can recoup its expenses from the claimants.”
The priority of unexercised riparian rights can be subordinated as part of a statutory stream adjudication.
The most recent statutory stream adjudication was the San Gregorio Creek stream system in 1993, which is a coastal stream south of San Francisco, but there is a pending petition to adjudicate the Fresno River, which the Division is currently considering taking up.
COURT REFERENCES
Both state and federal courts can refer all or any issue in a case involving water rights to the Water Board for a determination. The federal provisions are not spelled out in the water code; basically the procedure is based on the rules of the court. For state court references, the board prepares a report of referee that, depending upon what issues have been referred over to the State Board, can have conclusions of law or findings of fact in them.
“References from courts are actually fairly common because a lot of courts find themselves ill-equipped to handle water right issues,” said Ms. Heinrich. “The cases are complicated and the courts don’t have the technical expertise in house and they don’t have people to help them with engineering issues, geology issues, or fishery issues. We get them fairly regularly and they’re kind of fun because sometimes it’s not our bread and butter type permitting stuff. We can get some unusual issues that way.”
Featured image: Gypsy Falls, near Nevada City. Photo by Thomas Hawk via Flickr.
- Visit the State Water Board’s Division of Water Rights by clicking here.
- For Frequently Asked Questions on water rights from the State Water Board, click here.
- For more on water rights permitting and change petitions, go here: CA WATER COMMISSION: A primer on water rights permitting and change petitions
- For more articles on water rights on Maven’s Notebook, click here.
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