Urban Water Institute- August 2015 Justice Ronald B. Robie

Drought Water Rights Issues Basic water rights enforcement issues are complicated and difficult in California REASON- Our legally disjointed system of water rights - as compared to a traditional Western state such as Colorado

Water Right Issues (Cont.) California is only Western State with both Riparian Rights and two types of Appropriative Water Rights AND A separate system of Groundwater Rights

Riparian Rights Attach to property adjacent to stream Right to natural flow only All riparians have correlative right to the flow of the stream Limited to smallest parcel in continuous ownership Can divert to use but NO STORAGE Have priority over all other rights

Appropriative Rights Based on “first in time, first in right.” Limited to available natural flow of stream Can divert directly from stream or to storage. Can carry over until next season First recognized in Irwin v. Phillips (1855) 5Cal.

Pre-1914 Appropriative Rights Perfected by diverting and putting water to beneficial use. Lost by non-use No government involvement required May file statement of diversion and use with the state Many large users –San Francisco

Post-1914 Appropriative Rights Must get permit from Water Resources Control Board Limited to natural flows only Priority based on date of application State must approve changes in type of use, season of use, place of use Can be lost by non-use

Importance of Natural Flow Concept All these rights are limited to natural flows BUT many streams, including the Sacramento-San Joaquin Delta --- Have large flows released from Upstream Storage Reservoirs These flows are Not Available to traditional water right holders

Groundwater No state permit system Currently rights determined by common law adjudications 2014 Legislation “Sustainable Groundwater Management Act” requires plans to be developed locally to manage groundwater

Important Limitations on Rights California Constitution, Article X, § 2 . . . The waste or unreasonable use or unreasonable method of use be prevented. . . Right to water . . .shall not extend to waste or unreasonable use or unreasonable method of use or unreasonable method of diversion. . .

Constitutional Provision applies to all water rights – Riparian, Appropriative, and Groundwater Enforced by Water Board

Leading Cases Authority of State Water Resources Control Board to enforce constitutional provision Young v. State Water Resources Control Board (2013) 219 Cal.App.4th 397 (3rd Dist.)

Light v. State Water Resources Control Board (2014) 226 Cal. App Light v. State Water Resources Control Board (2014) 226 Cal.App.4th 1463 (1st Dist.) Millview County Water District v. State Water Resources Control Board (2014) 229 Cal.App.4th 879 (1st Dist.)

Public Trust Doctrine National Audubon Society v. Superior Court (1983) 33 Cal. 3rd 419 Applies to navigable streams and their tributaries Never applied to Groundwater

Current Issues Because of lack of information on water rights and fact so many rights are not subject to administrative regulation and enforcement – Extremely cumbersome system

Since groundwater is not generally subject to permit system, relationship between streams and groundwater basins is generally vague. Enforcement of interference of pumping with stream flow and stream flow with ground water rights is nearly impossible