Transcript Sources of Water and Claims of Right

UC Davis Viticulture
& Enology
Water Rights in California
Impacts of New Regulations
February 13, 2015
Paula J. Whealen, Principal
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California’s Dual System
of Surface Water Rights
• Regulatory System is complicated and includes
− Surface Water Rights
• Appropriative Rights
• Riparian Rights
− Groundwater regulated separately
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Sources of Water and Claims of Right
• Surface Water
– Surface water flowing in a natural channel, generally above ground.
Subject to the surface water laws of appropriation including:
• Permit from the State Water Resources Control Board (SWRCB)
• Claim of a riparian right
• Pre-1914 appropriation
• Subterranean Stream Flow
– Water flowing underground in “known and definite channels.” Subject
surface water laws of appropriation including:
• Permit from the SWRCB
• Claim of riparian right
• Pre-1914 appropriation
• Groundwater
– Water not bounded within a subterranean stream. Previously
unregulated by the SWRCB. Recent legislation provides a mechanism
for regulation.
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California’s Dual System
of Surface Water Rights
Appropriative Rights - System of Prior Appropriation:
“First in time, first in right”
Pre-1914 Appropriation
– Must have commenced project development prior to
December 1914
– Pre-1914 Appropriations can be modified (Water Code
section 1706)
Appropriation by Permit (post-1914)
– Regulated by the State Water Resources Control Board
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California’s Dual System
of Surface Water Rights
Riparian Water Rights:
– No permit from State Water Resources Control
Board required
– May be subject to Fish and Game Code 1602
– Statement of Water Diversion and Use must be
filed
– Riparian rights attach to the smallest contiguous
tract of land abutting a natural stream
– A simple test: foreign in source, foreign in time
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Riparian Rights
Image courtesy of State Water Resources Control Board.
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State Water Resources Control Board
What’s New?
License and Permit Reporting Requirements:
• All Reports of Licensee and Progress Reports by
Permittee are now due annually on July 1st
• Must provide the monthly amount taken and
amount beneficially used
• Must file electronically
***Failure to file Reports constitutes non-compliance and may
result in a Cease and Desist Order from the SWRCB***
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Statement of Water Diversion & Use
What’s New?
Reporting Requirements
• All Supplemental Statements of Water Diversion &
Use are due every three years on July 1st
• Must provide:
− the average monthly rate of diversion, monthly
amount taken from the source, and the monthly
amount beneficially used
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Surface Water and
Groundwater Regulations
What’s New?
• SWRCB Frost Protection Regulation
• SWRCB Water Right Emergency Curtailment
• CDFW Code 1602 – Lake and Streambed
Alteration Agreement
• Groundwater Sustainability Act
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SWRCB Frost Protection Regulation 862
Russian River Watershed
• Regulates all water used for frost protection
– Pre-1914, appropriative, riparian and “interconnected”
groundwater
• A Water Demand Management Program including the following
information must be submitted to and approved by the SWRCB:
– Inventory of the frost diversion system
– Stream stage monitoring
– Assessment of potential risk of stranding fish due to frost
protection diversions
– Identification and timelines for implementation of any necessary
corrective actions
– Annual reporting
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Frost Protection Regulation 862
• Burden of proof shifted to water user to demonstrate
no impact to streamflow
• Amount or type of data necessary to demonstrate lack
of impact has not been defined
• Regulation has the potential to limit/restrict use under
water rights, including riparian rights, without
opportunity for hearing
• “Interconnected” groundwater has not been clearly
defined legally or otherwise
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SWRCB Emergency Regulation
2014 Water Right Curtailments
• Restricted diversion and pumping under water
right permits and licenses from all or portions of
Sacramento-San Joaquin, Russian, Scott, and Eel
River Watersheds due to drought
– The SWRCB temporarily lifted curtailment for
watersheds due to late 2014 rain events
– It is unknown when the State Water Board will
reinstate the curtailments
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SWRCB Emergency Regulation
2014 Water Right Curtailments
• Potential to limit/restrict water use under Permits
and Licenses without a determination of water
availability
• “Interconnected” groundwater – presumably not
included in curtailments
• No current way to abide by priority system for
setting or lifting curtailments
• SWRCB model for determining priority system –
will it include impacts to/from other sources
and/or diverters?
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California Department of Fish and Wildlife
Code Section 1602
• CDFW Code 1602 requires an entity to notify CDFW
before undertaking any activity that will “substantially
divert or obstruct the natural flow of, or substantially
change or use any material from the bed, channel, or
bank of, any river, stream, or lake…”
– CDFW recently determined that the diversion of water in
accordance with a valid water right requires notification
– CA Farm Bureau brought a lawsuit against CDFW to
define that the extraction of water in accordance with a
water right is not a “diversion” within the meaning of
Code Section 1602
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California Department of Fish and Wildlife
Code Section 1602
• Siskiyou County Superior Court held on December
24, 2012 that;
– “Fish and Game Code 1602 does not require
notification of the act of extracting water pursuant
to a valid water right where there is no alteration
to the bed, bank, or stream.”
• CDFW filed an Appeal on October 8, 2013
– It is anticipated that an Appellate Court decision
will be made in early 2015
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Groundwater Regulation
Sustainable Groundwater Management Act
• First regulatory structure addressing sustainability
of a groundwater basin
• Applies to all groundwater basins in the State
defined by DWR in Report Bulletin 118
– Bulletin 118 designates groundwater basin as
high, medium or low priority based on CASGEM
Program results
– Of the 515 basins, 26 (adjudicated or otherwise
regulated) are specifically excluded from the Act
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Sustainable Groundwater Management Act
• Act requires creation of a “Groundwater
Sustainability Agency” for implementation
• Requires the Groundwater Sustainability Agency
to prepare a Groundwater Sustainability Plan:
– Required by January 31, 2020 for all high or
medium priority basins that are subject to
critical conditions of overdraft
– Required by January 31, 2022 for all other high
and medium priority basins
– Optional for low and very low priority basins
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Sustainable Groundwater Management Act
• Implications for surface water diverters:
– The Act defines “Sustainable yield” as:
“…the maximum quantity of water, calculated over a
base period representative of long-term conditions in
the basin and including any temporary surplus, that
can be withdrawn annually from a groundwater supply
without causing an undesirable result…”
– One undesirable result, as defined by the Act is:
“…Surface water depletions that have significant and
unreasonable adverse impacts on beneficial uses of the
surface water…”
• Diversion from subterranean stream, underflow or
springs may be regulated through the Act
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Recommendations for Navigating
Changing Regulations
• Determine what your ‘source’ is – surface water,
groundwater, subterranean flow
• Know your legal claim of right to that water source
• Monitor and record how much water you are using
from each source (regardless if it is required by law)
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Recommendations for Navigating
Changing Regulations
• Know how new regulations “do or don’t” affect your
ability to divert water
• Evaluate the local and regional hydrology affecting
your source – where does the water come from and go
to?
• Be proactive working with your community of water
users to be part of the dialog at the local county, state
or federal level for regulations affecting your water
source
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Questions ?
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