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Water Rights

The excerpts below are from Chapter 6: Pacific Watershed Associates. 1994. Action plan for the restoration of the South Fork Trinity River watershed and its fisheries. Prepared for U.S. Bureau of Reclamation and the Trinity River Task Force, Contract No. 2-CS-20-01100. February 1994.

California Water Law

Two types of water use are recognized under California law: riparian rights and appropriative rights (SWRCB, 1990). 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 (1990). Ground water taken from wells does not require a permit from the SWRCB unless the water taken comes from a clearly defined underground aquifer, however, the Trinity County Health Department has required a permit for all domestic wells since 1990. The California Department of Water Resources tracks some well log data, but information collected is confidential.

Riparian Rights: 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 streamflow diversions have equal standing under the law. Because of these statues, the SWRCB can not 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.

Appropriative Rights: Any removal of water from stream side areas for delivery to non-adjacent parcels constitutes appropriative use, which requires a permit from the SWRCB. Appropriative water use prior to December 1914 has automatic standing as a permitted use. If challenged, a pre-1914 appropriative right must be documented both in terms of date of first use and continuing subsequent use. A "record of use" can be filed to document historical use of water and to preserve standing against future challenges. The record of use often comes from living memory of people who established such rights and if they die before such a record is made, substantiation of the appropriative right against later challenges may be difficult. Appropriative rights may be lost if not used for a period of five years. 

Enforcement Actions and Determination by SWRCB: The SWRCB investigates and takes appropriate action when written complaints are filed alleging illegal diversion, violation of permits, unreasonable use, or violation of public trust. The public trust doctrine has traditionally been used to protect navigation, commerce and fisheries, but recent court decisions have expanded it to include rights to fish, hunt, swim, boat and recreate (Baiocchi, 1993). A legal process to determine ownership of water rights is known as adjudication. After adjudication takes place, water users in the effected area may request the California Department of Water Resources (CDWR) appoint a water master, who has the power to uphold the court order. Water users in an area under adjudication would then pay for the services of the water master in accordance with their level of use.

Reference

Baiocchi, R., 1993, Comments on behalf of California Sportfish Protection Alliance (CSPA) to SWRCB (State Water Resources Control Board) on increasing the height of Vail Dam, Santa Margarita River (Riverside County). CSPA, Quincy, CA, 72 p.

Schneider, A.J. 1978. Legal aspects of instream water uses in California - background and issues. Staff paper no. 6. Governor's Commission to Review California Water Rights Law. Sacramento, CA. 139 pp. [380k]

Smith, F.E. 1980.  The Public Trust Doctrine - instream flows and resources. A discussion paper prepared by the California Water Policy Center. United States Fish and Wildlife Service, California-Nevada Area Office. Sacramento, CA. 32 pp. [97k], without picture pages.

State Water Resources Control Board (SWRCB), 1990, Information pertaining to water rights in California. California State Water Resources Control Board, Sacramento, CA, Publication No. COV0010. 20 p.

Web Site for Water Rights Information

CERES Water rights page:   http://ceres.ca.gov/theme/env_law/water_law/water_rights.html