UC Davis Viticulture

& Enology

Water Rights in California

Impacts of New Regulations

February 13, 2015

Paula J. Whealen, Principal

California’s Dual Systemof Surface Water Rights

• Regulatory System is complicated and includes− Surface Water Rights• Appropriative Rights• Riparian Rights

− Groundwater regulated separately

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.

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

California’s Dual Systemof 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

California’s Dual Systemof Surface Water Rights

Riparian Rights

Image courtesy of State Water Resources Control Board. 

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***

Statement of Water Diversion & UseWhat’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 andGroundwater Regulations

What’s New?

• SWRCB Frost Protection Regulation

• SWRCB Water Right Emergency Curtailment

• CDFW Code 1602 – Lake and Streambed Alteration Agreement

• Groundwater Sustainability Act

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

SWRCB Emergency Regulation2014 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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• 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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SWRCB Emergency Regulation2014 Water Right Curtailments

California Department of Fish and WildlifeCode 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 14

California Department of Fish and WildlifeCode 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 201515

Groundwater RegulationSustainable 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 22

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 NavigatingChanging 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 NavigatingChanging 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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