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Spring 2014

Water Rights Revisited

As we enter planting season with a very uncertain water supply allocation understanding water rights is key. California has a very unique water rights system and it is paramount to the success of our 42 billion dollar agricultural economy that will take an unprecedented hit this year with the drought. We hope this summary written by Sandy Denn below helps you gain a better understanding of California water rights.

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…”

California recognizes multiple types of water rights that are prioritized. The highest and oldest rights are called Pueblo Rights and were for the purpose of providing water to the “pueblo’s” or one time small communities when Alto California was still under the jurisdiction of Mexico. Their priority was continued under the Treaty of Guadalupe Hidalgo when California became a United States possession. It merely establishes a priority of usage to “native water” and does not extinguish any other rights that may exist within the boundaries of the pueblo. They are no longer issued.

Next in priority came prescriptive rights which are acquired by adverse possession. This right is established in much the same manner as adverse possession of real property. The use must meet the same elements: actual, open, notorious, hostile, adverse
to the intent of the original holder of the right and continuous for astatutory period of five years under a claim of right. Once a prescriptive right has been perfected, priority among prescriptive users is subject to the principal of “First in time, first
in right.”

Riparian rights are presumed by usage but can also be recognized by license through the SWRCB. A party must own real property abutting or contiguous to a watercourse to have a corresponding riparian right to divert the water for use on his own riparian land within that watershed. The riparian right includes the rights to non-consumptive uses of the water, such as fishing and swimming as well as agricultural and domestic uses. These are vested rights, but are correlative, meaning each holder is entitled to a proportionate share of the water, and in times of shortage, a proportionate reduction in supply. Because riparian rights are not quantified, they may pose a threat to existing appropriative rights.

Water which is found between the beds and banks of a stream is subject to appropriation. These rights can be “appropriated” through a permit process with the SWRCB. These rights are prioritized by their dates of issuance with those issued
before 1914 being “Senior” Appropriative Rights, and those issued after 1914 are “Junior” to the pre 1914 rights, and further junior to each other based on dates of issuance. Generally, riparian rights may have first priority to a common water supply, ahead of an appropriator under the Doctrine of Prior Appropriation. However, riparian rights are subject to a more modern judicial policy of reducing their quantification than was applied historically. The right held on the main stem of the river itself is protected and the holder may have an actionable interest in waters arising from tributary inflow if he is damaged by diminished supply due to actions taken on the tributaries.

Only two states do not have absolute governmental control of groundwater, California and Texas. In California each owner of a parcel of land has an overlying right to the use of the water extracted from the ground beneath it, so long as he does no harm to other users of the aquifer. The priority of uses follows that of surface waters. When appropriators use groundwater a shared basin, they become junior in right to a landowner whose sole source of water is the aquifer. Thus if shortages occur or overdraft is approached, appropriators will be limited before private pumpers. These rights, in essence, are “vertical” riparian rights. The overlying landowner has only the right to use, not ownership of the water extracted.

“Taking” groundwater in excess of the safe yield of the aquifer is wrongful when it results in harm to other users of that aquifer or to the basin if it is found that the aquifer is uncontained and the excessive use has a negative impact on the yield or on the health of the aquifer itself. That is when the over use causes subsidence or supply shortages to other overlying rights holders. Subdivision of the overlying land can cause severance of the overlying right unless agreements are carefully drafted to preserve correlative shares to the subdivided parcels.

Unless expressly severed or reserved, water rights, in the case of riparian and overlying rights, generally stay with the land. The right vests by operation of the purchase of the land, and remains with the land unless divested by prescription or severance. Uses of water, as opposed to merely the right itself, are also prioritized since the California Constitution calls for beneficial, and highest and best use of water resources. The current highest and best use recognized is domestic, followed by irrigation. However, intertwined among these uses, are public trust and environmental uses which present ever challenging and evolving regulations and policies that can affect all other rights and uses.

About the author:
Sandy Denn is a member of the Board of Directors of the Family Farm Alliance. She has also served as Vice President of the Board of Directors of Glenn-Colusa Irrigation District in Northern California and is the former President of the Central Valley Project Water Association. She has served in a variety of other water-related and civic positions and recently earned a law degree. She is a third generation farmer from Willows, California, where she and her husband Wallace Denn grow rice at Snow Goose Farms.



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