The California Water Boards' Annual Performance Report - Fiscal Year 2009-10

What We Do and How We are Doing

Data Reported

The State Water Board establishes and maintains a system of water rights to help ensure that the State's limited water resources are put to the best possible use and the public interest is served. A water right is legal permission to divert and use a reasonable and nonwasteful amount of surface water for a beneficial purpose, such as drinking, swimming, fishing, farming, or industry. In allocating water rights, through a system of permits, licenses, and registrations, the State Water Board works to ensure that water rights, water quality, and the environment are protected. The State Water Board may also be called upon to adjudicate water for entire systems.

California's hydrology is influenced by differences in amounts of precipitation, both seasonally and geographically. With a growing population and greater demands being placed on a limited State water supply, especially during drought periods, it is important to have a water rights system that develops water resources in an orderly manner, prevents waste and unreasonable use of water, and protects the environment.

Water Rights System

Water is protected for the use and benefit of all Californians. The State's waters cannot be owned by individuals, groups, businesses, or governmental agencies. While water rights are property rights, water right holders do not own the water, but rather possess the right to use it. Water rights laws help provide certainty that a water user will have water available in the future. Permits, licenses, and registrations issued under water rights laws give individuals and others the right to beneficially use reasonable amounts of water. Water rights are based on a priority system that is used to determine who can continue taking water when there is not enough water to supply all needs. Those with high priority rights are likely to receive water. Those with low priority rights may not receive water in all years and should plan accordingly. Water users should make economic decisions based on the certainty of their water supply. For instance, farmers who have a high certainty of receiving water, even in dry years, may choose to plant permanent crops, like fruit trees or vineyards.

In California, water rights exist for both surface waters and groundwaters, and, depending on the type, may or may not require a permit or license from the State Water Board.

The State Water Board establishes and maintains a system of appropriative water rights to best develop, conserve, and utilize in the public interest the water resources of the State while protecting vested rights, water quality, and the environment. The water rights system allows water to be diverted from a water source and be put to beneficial, non-wasteful, and reasonable use. Because water quantity and quality are interrelated, the allocation of water can influence water quality standards. When the State Water Board declares a stream to be fully appropriated, it means there is no more water available for new appropriation.

Water right permits also help to protect the environment from impacts that occur as a result of water diversions. Water right permits include conditions to protect other water users and the environment. The water right permitting process can stop bad projects from starting, can modify poorly planned projects, and can protect existing streamflows. The water right permit process cannot by itself restore streams, but because the State Water Board has continuing authority over permits that it issues, it can modify permits and licenses it previously issued to require more protective conditions. The State Water Board must provide the permit or license holder with notice and opportunity for a hearing before making changes. If the permit holder disagrees with the State Water Board's decision to modify the permit, it can ask the court to review the matter.

Surface Water Rights

There are generally three types of surface water rights: riparian, pre-1914 appropriative and post-1914 appropriative. Historically, the State Water Board has administrative authority over post-1914 appropriative water rights in California.

Riparian rights usually come with owning a parcel of land that is adjacent to a stream. As a property right, a riparian right entitles the landowner to use a share of the water that would naturally flow through or adjacent to the property.

Riparian rights

• Do not require permits, licenses, or government approval
• Are not lost if the water is not diverted or used
• Do not entitle a water user to divert water to storage in a reservoir for use in the dry season or to use water on land outside of the watershed
• Remain with the property when it changes hands, although parcels severed from the adjacent water source generally lose their right to the water
• Disputes must be resolved in court.

Appropriative rights pertain to the diversion of water for immediate use on non-riparian property (property not including or adjacent to a stream) or for storing the water for later use. The State Water Board's appropriative rights system establishes a hierarchy of water right priorities, which is known as "first in time, first in right". An appropriative right allows others to divert available water from the same river or stream, but their rights exist within a hierarchy of priorities. Appropriate rights are categorized as either "pre-1914" or "post-1914" water rights, based on the Water Commission Act of 1914 that established the authority and process for administering permits and licenses for the State's surface waters (today, the California Water Code governs appropriations).

Pre-1914 appropriative water rights

• Do not require a permit from the State Water Board
• Are limited by the quantity of water that has been continuously used since before 1914

Post-1914 appropriative water rights

• Require a permit from the State Water Board
• Can not be issued on a fully-appropriated stream (i.e., all of the water has been appropriated/allocated to users

Although pre- and post-1914 appropriative rights are similar by definition, post-1914 rights are subject to a much greater degree of scrutiny and regulation by the State Water Board. In times of water shortage, the most recent ("junior") right holder must be the first to discontinue such use. Each water right’s priority dates to the time that the permit application was filed with the State Water Board. Riparian rights still have a higher priority than appropriative rights. The priorities of riparian right holders generally carry equal weight; therefore, during a drought, all share the shortage among themselves.

Groundwater Rights

With the exception of diversions from "subterranean streams flowing in known and definite channels" which are permitted by the State Water Board, rights to groundwater in California are obtained by extracting the groundwater and using it for a beneficial purpose. There are three types of groundwater rights in California: overlying, appropriative, and adjudicated. Overlying groundwater rights occur when percolating groundwater (groundwater that is not a subterranean stream) is extracted and put to beneficial use on the land overlying the groundwater basin from which the water was taken. Overlying rights do not require approval from the State Water Board or a court; however, the rights of others with land overlying the groundwater basin must be taken into account. Appropriative groundwater rights occur when extracted groundwater is used outside of the basin. Overlying groundwater rights have a higher priority than appropriative groundwater rights. Adjudicative groundwater rights occur when groundwater use is subject to regulation in accordance with court decrees adjudicating the ground water rights within the basins.

While, the State Water Board does not have authority to issue permits for groundwater diversions, except for those from subterranean streams, the Board does have authority to take action to stop wasteful or unreasonable uses of groundwater or to stop groundwater diversions that harm state resources, such as fisheries. Furthermore, local agencies, such as a county or groundwater management district, have some authority over allocation of percolating groundwater.

Water Rights Process (Post-1914 Appropriative Rights)

The State Water Board has a complex water rights process that includes issuing water right permits, approving proposed changes in water right permit conditions, adjudications, and enforcing permits. A summary of some key elements is provided below. More information on the State's water rights process can be accessed here.

Applications for Water Rights

Anyone who wants to divert water from a stream that is not adjacent to their property must first apply for a water right permit from the State Water Board. Filing of the application initiates the water rights process, which includes administrative and environmental reviews by State Water Board staff and public participation.

Permits

A water right permit is an authorization to develop a water diversion and use project. In deciding whether to approve applications and impose certain conditions in permits, the State Water Board is required to consider water quality control plans, including the protection of the beneficial uses of water, the public interest, reasonableness, and the public trust (protection of resources held in trust for all citizens, such as commerce, navigation, fisheries, and recreational and ecological values). Before issuing a water right, the State Water Board must find that "unappropriated" (unclaimed) water is available to supply the applicant, considering the water flows needed to remain in the stream (instream flows) for the protection of other beneficial uses, including municipal supply, agricultural supply, and fish and wildlife habitat. The water right permit specifies how much and during which season water can be diverted, and other conditions, such as special terms to protect instream flows. The right to use water is obtained through actual use of water within the limits described in the permit.

Licenses

A water right license is a certificate issued to confer a vested water right under certain conditions (a vested water right is established through beneficial use of water) and constitutes the final confirmation of the water right. The State Water Board issues a license to the appropriator when the water development project is completed, the terms of the permit have been met, and the largest volume of water under the permit is put to beneficial use. A license is issued for only that water that has been reasonably and beneficially used.

Change Petitions

A water right holder may file a petition to change the conditions of a water right permit or license, including a change in the point of diversion, place of use, or purpose of use of the water. The State Water Board may approve the change petition if it will not injure any legal user of the water.

Complaints

The State Water Board can investigate and resolve complaints about unauthorized (illegal) diversion, interference with prior rights, violation of terms or conditions of permit or license, wasteful or unreasonable uses of water, and injury to public trust resources. The State Water Board may also address such issues on its own initiative. Water users who do not stop misusing water are subject to various enforcement actions.

Enforcement Actions

The State Water Board has the authority to enforce the conditions of water right permits and licenses. For example, the State Water Board may issue a cease and desist order to ensure compliance with the terms in a timely fashion. The State Water Board may also issue an Administrative Civil Liability Complaint of up to $500 per day for any unauthorized diversion or use of water. In serious cases, the Board may revoke permits and licenses if the conditions are not met. The California courts have concurrent jurisdiction to enforce water right permits.

Adjudications

In addition to administering the water rights permit and licensing system, the State Water Board has responsibilities for statutory adjudication and court reference. Statutory adjudication is a process by which the comprehensive determination of all water rights in a stream or groundwater system is made. The State Water Board may be petitioned to adjudicate water for entire systems or groundwater basins. If the Board finds the action necessary and in the public interest, a lengthy process, which involves investigations, reports, and hearings, results in a court decree that determines all water rights within the disputed system.

The State Water Board also may be called upon to act as a "referee" or fact-finder in court cases involving water rights. The State Water Board assists the courts by initiating and conducting field verification of water right claims in stream system adjudications of water rights (upon request by an affected party) and by making findings of fact, findings of law, or both.

Registrations

Registrations can occur in lieu of a water right to divert and use a small amount of water from a stream for domestic purposes (such as indoor household uses or irrigation of residential land no more than one-half acre) or the use of a small amount of water for livestock. In such cases, the use is registered with the State Water Board and must follow conditions that may be set by the State Department of Fish and Game to protect fish and wildlife. Registrations are not allowed where the State Water Board has declared the stream to be fully appropriated. If more water is used than allowed under a registration, or if a portion of the water is used for a purpose other than domestic purposes or livestock watering, a water right permit (if not already issued) is required before the water can be used.

Electronic Water Rights Information Management System (EWRIMS)

The State Water Boards' web-based water rights information management system includes a search engine to find details on California water rights and a geographic information system that displays real-time data with maps. To access and obtain more information on EWRIMS, visit: https://www.waterboards.ca.gov/water_issues/programs/ewrims/

For more information about California's complex water rights laws and processes, visit: https://www.waterboards.ca.gov/waterrights/ (State Water Board's Division of Water Rights homepage), https://www.waterboards.ca.gov/publications_forms/publications/factsheets/docs/wr_process.pdf (fact sheet on water rights process), and https://www.waterboards.ca.gov/waterrights/board_info/faqs.shtml (frequently asked questions on water rights).

( Updated 9/20/11 )