INTRODUCTION TO
CALIFORNIA WATER LAW
A Program for the Members and Friends of
the Central Coast Paralegal Association
February 18, 2015
King David’s Masonic Lodge No. 209
Guest Speaker: Michael R. Jencks
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“Whiskey is for drinking. Water is
for fighting.” – Mark Twain
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California Water: Supply & Demand
• Supply:
– 78 million AFY surface water (for in-stream and
consumptive uses)
• State Water Project = 2.3 million AFY
• Colorado = 4.4 million AFY
• CVP=7.3 million AFY
– 13 million AFY ground water (includes estimated
“overdraft” of 1.5 million AFY)
• Demand for Consumptive Use:
– Agriculture = 31 million AFY
– Urban = 8 million AFY
[Figures based on year with average rain fall and snow pack]
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Water Measurement
• AFY = acre foot/year
– 325,851 Gallons (family of 4, 2 years)
• CFS = cubic feet per second
– used to measure stream flow
• GPM = gallons per minute
– measures pump yield
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Two Key Principles
• Right of use, not of ownership
• Right only exists for reasonable and
beneficial use of water. No right to
waste.
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“Usufructuary” Nature
of Water Rights
• A water right is not a right of
ownership of the water itself but of
the right to use water reasonably
and beneficially.
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Use Must Be Reasonable AND
Beneficial
• All waters of the State of California are subject to the
constitutional requirement (Art.X, §2) that they be
put to reasonable and beneficial use
– Prohibits waste of water
– Reasonableness includes not just reasonableness of use
but of method of use, and method of diversion
– Reasonable use includes use of water for instream or
environmental purposes
– Exceptions for pueblo water rights and federal reserved
rights
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California Constitution
• Article X, §2 states:
“…The right to water…shall be limited…as
shall be reasonably required for the beneficial
use to be served…and shall not extend to the
waste or unreasonable use..or method of
diversion…” 1928
• Keys: beneficial & reasonable
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Beneficial Uses - Safe Harbor
• SWRCB Beneficial Use Designations*
– 23 Use Designations
– Safe Harbors (Rebuttable Presumptions)
– Not exclusive
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Four Operating Facts about Water
Regulation in California
• Water regulation is primarily the province of state
governments, not federal;
• Historically and continuing largely today, regulation of surface
water and ground water is sharply bifurcated and ignores
their hydraulic connection
• California this year became the last State to adopt a system of
groundwater regulation (California and Texas for the past decade had
been the only two states which did not regulate groundwater)
• California has unique hybrid water rights system, using both
riparian and appropriative rights systems to allocate rights of
use of surface water between users
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Sources and Priorities of Water Rights
Examples of some sources of water rights:
– Riparian
– Appropriative
– Federal Reserved Rights
– Prescriptive Rights
– Treaty of Guadalupe Hidalgo (1848)
»
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Pueblo Rights
Spanish Land Grant Properties
Beach Access (Friends of St Martins)
Community Property
– Contracts with Water Projects
– Interstate Compacts
– Statutory Adjudications
– Public Trust Doctrine
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Water Rights
• Surface Water
• Reasonable & Beneficial
Use
• Riparian
• Groundwater
• Reasonable and
Beneficial Use
• Overlying rights
– Correlative
– Non-permitted
– Correlative
– Non-permitted
• Prior Appropriation
• Prescription
• Adjudication
• Appropriation
• Basin Adjudication
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Riparian Right to Surface Water
• The right to the use of water as a result of the
ownership of property that abuts a natural
watercourse. Gives the owner of a parcel of
land contiguous to a watercourse, the right to
divert water for reasonable, beneficial use on
that property, within the watershed, as long as
other riparians are not injured.
– Smallest Tract Rule
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Overlying Right to Groundwater
• The right to the use of water as a result of the
ownership of property that lies over an
aquifer. Gives the owner of a parcel of land
over groundwater, the right to pump and
extract water for reasonable, beneficial use on
that property, within the watershed, as long as
riparians and other overliers are not injured.
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Appropriative Water Rights
• An individual who first appropriates and uses water for a
reasonable, beneficial purpose has a right which is superior to
that of later appropriators (first in time, first in right). All
surface waters (and subterranean streams flowing in known
and definite channels) in excess of the reasonable and
beneficial needs of lawful users, including riparians, are
available for appropriation for beneficial use and may be
diverted and used in connection with lands away from
streams or even outside a watershed. Water user need not
have any real property interest (except legal access to
diversion).
– Post-1914 Licensed by State
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Prior Appropriation
• Rule = ‘First in time, first in right’
• Exclusive use to the full extent of appropriation (not correlative
or proportional right)
• Ownership of land not required (but means and legal access to
point of diversion is)
• For a definite amount of water
• Reasonable and beneficial use
• Juniors vs. Seniors (not correlative)
• Away from streams, out of watershed (subject to some county
of origin and export constraints)
• For the water left by riparians
• Upstream v. downstream immaterial
• Small appropriations (e.g. stock ponds)
• Practice Tip: In dealing with any existing water license, first
obtain and review copy of State file
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Rights to Surface Waters
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Transition Between Surface Water and
Groundwater
• Underground waters are divided into three
categories:
– The underflow of a surface stream;
– A definite underground stream; and
– Percolating waters;
• All underground water is presumed to be
percolating water and the burden of proving
otherwise is on the party seeking to show that
water is underflow or a definite underground
stream and, therefore, subject to appropriation
and/or riparian rights;
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Underflow
• The underflow of a surface stream consists of the
water in the soil, sand, and gravel in the bed of a
stream in its natural state and essential to its
existence;
• The flow must be in a known and definite channel
– The underflow may include lateral extensions of the
stream on each side of the surface channel if its
location and movement can be determined
• The party who owns the right to the surface flow
has the same rights to the underflow.
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Groundwater Rights
• Groundwater supplies account for more than 13
million AF of the State’s annual water needs
• The State’s groundwater basins are being
overdrafted by an estimated 1.5 million AF/year
• Despite the severe overdraft of many basins in
California, until this year groundwater has not been
regulated under a statewide permit system and state
permission was not required to drill a well and pump
groundwater (unless basin adjudicated). No permit system
for exercise of overlying rights or appropriative rights
in groundwater.
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REVOLUTION
• Sustainable Groundwater Management
Act Passed by State Legislature
• Scott Valley Superior Court decision
applying Public Trust doctrine to
groundwater in agriculture-heavy Scott
Valley in Siskiyou County
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Groundwater Regulation Arrives
• Sustainable Groundwater Management Act
(SGMA) creates a new comprehensive
regulatory program designed to ensure
California’s groundwater is “managed
sustainably for long-term reliability and
multiple economic, social and environmental
benefits for current and future beneficial
uses.”
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Implementation
• SGMA will be implemented through local
groundwater sustainability agencies having the
powers to monitor and track groundwater extraction,
impose extraction and well-drilling limitations,
allocate water to individual users, and collect fees
from users for program implementation.
• This process over the next 12 to 18 months, among
other things, will create new employment
opportunities, some of which may be particularly
well suited to paralegal skill sets.
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Courts, the Public Trust Doctrine,
and Groundwater
• A Sacramento Superior Court Judge found six months ago that
the rarely invoked Public Trust Doctrine applies to
groundwater in the agriculture rich Scott Valley. The Court
stopped short of finding the doctrine applies to groundwater
in general, basing its decision on the Scott River hydraulics
and relationship of groundwater to navigable waters. The
decision is on appeal.
• The Los Angeles Daily Journal last month opined that “the
threat of litigation looms large, as plaintiffs will undoubtedly
seek to apply the doctrine to groundwater in other parts of
the State.” The facts locally in the greater Salinas River
watershed may be ripe for such litigation.
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Percolating Water
• All underground waters other than underflow
or underground streams are considered
percolating waters
• Groundwater is presumed to be percolating
• Percolating waters include water in
underground basins and groundwaters that
have escaped from streams
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Correlative Rights Doctrine (1903)
• The use of percolating groundwater in California is
governed by the doctrine of correlative rights and
reasonable use, which gives each overlying property
owner a common right to the reasonable, beneficial
use of the basin supply on the overlying land
– The Court in Katz rejected English rule of absolute
ownership of “rock, soil, and water.”
• Owners of land overlying a groundwater basin have a
common right to pump from the basin for use on
their lands
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Riparian Analogy
• Rights of overlying owners are “correlative”, that is,
shared rights in the basin supply held in common to
be determined relative to the needs of others;
• An overlying owner is considered to have a water
right that is analogous to a riparian right and is given
similar protection;
– Unlike appropriators, there are no junior or senior
overlying users who gain priority by being first to pump
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Appropriative Rights in Underground
Water
• Underflow and underground streams are
appropriated in the same manner as surface
water
• Percolating groundwater that is surplus to
overlying needs previously could be
appropriated merely by pumping and using
the water; starting this year appropriators will
have to comply with SGMA and the rules of
the local groundwater sustainability agency.
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Consumptive and Environmental Uses
• Competition between consumptive and environmental
“instream” uses of water of comparatively recent vintage
(late ‘60’s and emergence of environmental movement)
• People had assumed enough water for all purposes
• People not sensitized to environmental needs for water or
to declining fish and wildlife resources
• Today instream fishery flow needs, wild and scenic river
flows, water needs of fresh-water wetlands, Bay-Delta
requirements, groundwater recharge, and defense against
seawater intrusion into potable aquifers are well
recognized environmental uses.
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“Hot” Water Law Issues
• Ground Water litigation utilizing Public Trust
Doctrine;
• New Groundwater Compliance and Reporting under
SGMA;
• Prosecution and defense of predatory suits attacking
non-reasonable/beneficial uses or uses not in
compliance with license paperwork;
• Increasing litigation on prescriptive claims; Increased
self-regulation of projects through strategic use of
CC&Rs
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Other Water Work and Role of
Paralegals
Samples of water tasks paralegals can
substantively and cost-effectively deal with:
• License maintenance (amending licenses to conform with
actual point of diversion, use, and place of use, work often
viewed as too expensive by ag clients to have attorney do but
getting too complicated for do it your selfers)
• Conducting due diligence on water rights in connection with
sale and finance actions;
• Doing new license apps, especially the purely administrative
ones like stock ponds but including larger licenses and
preparing for hearing.
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Other Water and Development Issues
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“Wet” vs. “Paper” Water
Public Trust and Groundwater
State enforcement of reasonable use
Water quality ~ water quantity
Water Farming and Water Banking
Graywater vs Reclaimed water
Groundwater Recharge
Long Term Reliable Supply
Basin Adjudications
Conjunctive Use
Desalinization
Supply Diversification (Los Robles Del Mar Case Study)
Water Marketing
Aquifer Protection Ordinances
County of Origin and export restrictions
Water Element of General Plan
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Salinas River
• 174 Miles
• Headwaters above Santa Margarita Lake,
empties into Monterey Bay Marine Sanctuary
at Elkhorn Slough
• Upside down > runs South to North
• Most degraded watershed in State
• Dreamingthesalinas.org
• Ownership of Navigable Waterway
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