1. Urban Water Institute- August 2015
Justice Ronald B. Robie

2. 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

3. 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

4. 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

5. 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.

6. 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

7. 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

8. 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

9. 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

10. 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. . .

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

12. 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.)

13. 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.)

14. 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

15. 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

16. 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