Water Rights Laws

 California's hybrid water rights system includes riparian, appropriative, prescriptive, pueblo, contract, overlying, reserved and public trust rights.  A mix of water rights could coexist in a one water system without overriding adjudication. 

 The right to use water is a property right and may be protected in the same manner as any other property right, i.e. by court action.  As a property right, the owner has the same obligation to defend it against encroachment as in the case of any other kind of property.  The flow of water in streams is variable and cannot be predicted with accuracy.  Thus an approval of an application and issuance of a permit to appropriate unappropriated water does not guarantee that unappropriated water will be available at all times in the full amount specified in the permit.  The holder of a permit should be prepared to accept responsibility for diverting only to the extent and at such times as will not impair the prior rights of others, regardless of the amount or season named in the permit.

 Furthermore, the state may undertake to regulate environmental quality notwithstanding the resulting limitation imposed on the free use of property rights.  The law of water rights involves a hierarchy of priorities: Riparian rights have priority that must be satisfied before any appropriative rights are exercised.  Interests protected by the public trust of the state's water are nonconsumptive, instream uses; such as navigation, recreation, ecology and aesthetics.

State Water Resources Control Board (SWRCB)
 The State Water Resources Control Board (SWRCB) was established by the 1967 California Legislature to administer the states water quality and water rights functions.  It, in conjunction with nine regional boards, enforces pollution control standards to protect California's 103 rivers, 5,000 lakes, 461 groundwater basins and 1,840 miles of shoreline.  In granting water right permits, the SWRCB must determine that the proposed appropriation will best serve the public interest.  An appropriative right is an exclusive right to take a specific amount of water from a specific source for a specific use at a specific location during a specific period of time.  The right may allow for the immediate use or seasonal storage of water.

 SWRCB acts in a legislative capacity when performing its regulatory function of insuring water quality by establishing water quality objectives.  SWRCB actions are guided by legislative policy that the favored or highest use is domestic and irrigation the next highest (U1254).  SWRCB is expressl
 
 SWRCB in undertaking to allocate water rights, performs an adjudicatory function; there is no requirement that the agency prepare findings in support of its quasi'legislative decision.  It is only when an agency renders an adjudicative decision that findings are required in order to breach the analytic gap between raw evidence and ultimate decision.  The board's task is not to protect water rights but to protect "beneficial uses", however in the larger view of water resources, in arriving at a reasonable estimate of all water uses, an activity well within the board's water rights function is to determine the availability of unappropriated water.  It is is also essential to fulfill the board's water planning obligations. 

 The Water Code of California in Division 1 Chapter 1 addresses the General State powers over water.  The code makes specific reference in section 106, 1254 and 1460 that "It is hereby declared to be the established policy of the State that the use of water for domestic purposes is the highest use of water and that the next highest use if for irrigation."  In section 1203, the Code states, any water held by a municipality in excess of its needs can be appropriated by any person entitled to the possession of land upon which such excess water may be put to beneficial use, but "the right of such person to use such water shall continue only for such period as the water is not needed by the municipality."

 In addition, in section 1011 b. it states, "Water, or the right to the use of water, the use of which has ceased or been reduced as the result of water conservation efforts as described in subdivision (a), may be sold, leased, exchanged or otherwise transferred pursuant to any provision of law relating to the transfer of water or water rights, including, but not limited to, provisions of law governing any change in point of diversion, place of use and purpose of use due to the transfer."  It specifies that water conservation shall mean the use of less water to accomplish the same purpose allowed under the existing appropriative right.
 
 The Water Code designates in Article 1.7. Areas of Origin, the designation of a "protected area".  This designates all lands which normally drain to the ocean and specifics seven river systems of which the seventh is "the combined river systems which drain to the ocean from and including the Russian River System northward to the California-Oregon border."  A protected area gives water users within it the prior right to all water reasonably required to adequately supply the beneficial needs of the protected area above the right of water supplier exporting or intending to export water for use outside a protected area. 
 
 The Code in Article 1.3. gives the SWRCB the right to designate that a stream system is fully appropriated.  Then the Board shall not accept for filing any application for a permit to appropriate water from the stream system and the board may cancel any application pending on that date.  The Board may provide for acceptance for filing of applications under specified conditions. It can set limitations upon the new individual applications or to the aggregate of the applications or to both. Section 1707 authorizes the SWRCB the right of conversion of any existing water right into an "instream appropriation" to benefit fish, wildlife or other instream beneficial use.  Environmental instream flow is the water maintained in a stream or river for beneficial uses such as fisheries, wildlife, aesthetics, recreation and navigation.

 Section 1375 declares the basic principle that: "As a prerequisite to the issuance of a permit to appropriate water...[t]here must be unappropriated water available to supply the applicant."  Accordingly, in reviewing the permit application, the Board must first determine whether surplus water is available, a decision requiring an examination of prior riparian and appropriative rights.  In exercising its permit power, the Board's first concern is recognition and protection of prior rights to beneficial use of the water stream.  Yet the Board's estimate of available surplus water is in no way an adjudication of the rights of other water right holders; the rights of the riparian and senior appropriators remain unaffected by the issuance of an appropriation permit.  State Water Resources Control Board, Division of Water Rights is to assist in establishing and maintaining a stable system of water rights to best develop, conserve, and utilize in the public interest the water resources of the State, while protecting prior rights, water quality and the environment.

US vs SWRCB  1986
 In the case of U.S. vs. SWRCB (1986) the court found, "It is a fundamental principle of water law that one may not withdraw water from its source without first acquiring "water rights`.  Conceptually, what is meant by a water right is the right to use the water - to divert it from its natural course...The right of property in water is usufructuary, and consist not so much of the fluid itself as the advantage of its use....Water Code section provides that "[a]ll water with the State is the property of the people of the State, but the right to the use of water may be acquired by appropriation in the manner provided by law." Furthermore, the court stated,  "It is equally axiomatic that once rights to use water are acquired, they become vested property rights."

 The Court state,  "California operates under a 'dual' or hybrid system of water rights which recognizes both doctrines of riparian rights and appropriation rights. The riparian doctrine, from the common law of England, confers upon the owner of land the right to divert the water flowing by his land for use upon his land, without regard to the extent of such use or priority in time...All riparians on a stream system are vested with a common ownership such that in times of water shortage all riparians must reduce their usage proportionately... Upon discovery of gold and the development of the California mining industry, water was often diverted from streams passing through government lands to be used on nonriparian lands. To accommodate this usage, the doctrine of appropriation originated and was incorporated in California water law.  The appropriation doctrine confers upon one who actually divers and uses water the right to do so provided the water is used for reasonable and beneficial uses and is surplus to that used by riparians or earlier appropriators. Appropriators need not own land contiguous to the watercourse, but appropriation rights are subordinate to riparian rights so that in times of shortage riparians are entitled to fulfill their needs before appropriators are entitle to any use of the water.  And, as between appropriators, the rule of priority is "first in time, first in right.'  The senior appropriator is entitled to fulfill his needs before a junior appropriator is to use any water."  In similar fashion, in the amendment application of Mendocino vs SCWA, the statement was made, "It is a long-standing law that the Board need not adjudicate the rights of all senior water users before finding that water is available for appropriation...appropriation of water does not permit reservation of water for future needs."

 In another frame of reference, The Chicago Titles, in Handbook for Title 1994 definition of Water and Water Rights, (Section 56A.01 In General, pg. 432), comments that "in a state of nature, water is real property...However, title insurers refuse to accept liability for loss of water rights or claims or title to water...since the adoption of the state's existing public water policy in 1928, the quantum of a person's right, claim or title to water cannot be permanently established against the world.  Just as the benefit of an insured's use of water is subject to change, so might the state's administrative agencies or judiciary decree a change in the volume of water to which an individual is entitled."

Current SWRCB Actions
 In January and May of 1995, the State Water Resources Control Board (SWRCB) held a workshop session on a proposed strategy to deal with the pending water right issues on the Russian River. Primary issues are the determination of the flow of water (and other measures) needed to protect the fishery resources and to determine whether unappropriated water is available which would allow the approval of permit applications.  Approximately 80 applications were pending requesting additional water withdrawal from the mainstem and the tributaries of the Russian River, the largest of which are the applications by Northern California Power in The Geysers and the SCWA.  (See Table 1 - Pending Water Right Applications - Russian River Watershed and Map of Pending Water Right Applications on Russian River Watershed.) Plus a complaint was submitted by a coalition of fishery advocates, the California Sportfishing Protection Alliance, that requests the SWRCB conduct a comprehensive review of the 1,400 recorded water rights in order to determine the flow needed for fishery resources.  In comments submitted, the California Department of Fish and Game stated that they are concerned about the impacts on coho salmon and steelhead from conditions in the tributaries, instream flows, temperature, sedimentation, predation, unscreened diversions and barriers to fish passage, and recommended that the SWRCB declare all tributaries to be fully appropriated during the dry season. State Lands Commission (although having initiated legal actions against gravel mining operations on the Russian River) did not present comments at the hearing.
 
SWRCB recommended a multi-phased approach: 

  1. 1) conduct an environmental assessment of the potential cumulative effects and develop permit terms that would avoid impacts.  In each case a finding would be made as to whether additional water is available.
  2. 2) process pending applications and petitions that do not have significant impacts or with terms that would mitigate for local and cumulative impacts.
  3. 3) Respond to SCWA petition to change existing water rights permits on the main stem of the river upon completion of appropriate environmental documentation.
  4. 4) Hold a hearing to consider adding streams in the watershed to the SWRCB's declaration of fully appropriated streams as set forth in Order WR 89-25 and its revisions and make a determination of fully appropriated streams and the seasons in which they are deemed fully appropriated.
  5. 5) Assist in the development of a basin-wide management plan for the Russian River watershed and noted that the North Coast Regional Board is addressing water quality problems and could be incorporated into the plan. 


 SWRCB noted that many commentors at the hearing noted that no one has conducted detailed studies to define the instream flow or measures needed to protect fishery resources.  SWRCB also noted that the Department of Fish and Game is authorized to perform studies and to create a Fishery Management Plan (section 10002 et seq. of the Fish and Game Code) however, it required several years and costs of $250,000 on prior river systems. 

 SWRCB reiterated that they have the option to modify, or to deny applications and can reserve jurisdiction to modify conditions in the water right permits (Section 1394 of the Water Code) and if, for instance, additional information is submitted to them regarding instream fish flow requirements, then they could modify terms in current water right permits. In reference to multi-phase option #5 above, they state they do not have sufficient resources or authority to develop a watershed management plan but could take a lead role in preparing a Water Quality Control Plan or by amending the Regional Board plan and could request other agencies (such as the SCWA) prepare major components of a plan.