As California enters its fifth consecutive year of drought, a forfeiture of water rights, or even a potential reduction in water rights are particularly contentious issues. The widely predicted “ El Nino “ never happened, and the 2016 reported rainfall in Southern California at present is more than two inches less than at this time in 2015. Recent legislation, the Sustainable Groundwater Management Act (SGMA), recent case law and at least one significant California Supreme Court case from 37 years ago present potential problems for water rights holders, no matter the type of rights they hold. Subsequent articles will discuss the Supreme Court case of 37 years ago and the SGMA. This article will discuss recent holdings of the California courts concerning water rights.
Water rights holders need to get legal advice now before they are challenged by the State Water Resources Control Board (Board), or potentially other agencies, for every acre foot they believe they can claim as their own for possible redistribution and resale.
In California both riparian and appropriative rights are permissible. Property owners whose land contains a river or stream, or borders a river or stream, generally have use of the water and thereby riparian rights to it. There is no predetermined limit on the amount of water that an individual riparian user may divert, so long as the uses to which the diverted water is put are riparian, beneficial and reasonable.
Appropriators, those who hold the right to divert water for use on noncontiguous lands, are separated into pre-1914 rights and post-1914 rights. An appropriator before 1914 was required only to post a notice of intent to divert water. After December 19, 1914, appropriators had to file an application with the state administrative agency in charge-presently the State Water Resources Control Board. The appropriator had to show that unappropriated water was available, and that it could be put to beneficial use. Appropriators may divert only so much water as is authorized by their permit.
In September of 2014, the Court of Appeal for the First Appellate District rendered its opinion in Millview County Water District v. State Water Resources Control Bd., 229 Cal App. 4th 879. The case concerned the sale of a pre-1914 appropriative right to the Millview Water District by two individuals who acquired the rights to Russian River water from the prior owners in 1998. Millview was formed to supply water to an unincorporated area of Mendocino County. This area was part of an original parcel of 165 acres in 1913 called lot 103 of the Rancho Yokayo. Of that 165 acre parcel, a man named Waldteufel purchased a 33.88 acre parcel in 1913 and recorded a notice of appropriation of water, at issue in the case.
A citizen’s complaint to the Board, and an evidentiary hearing resulted in the Board issuing a Cease and Desist Order (CDO) restricting Millview’s diversion of water under the right, finding it had been largely forfeited by a period of diminished use from 1967 through 1987. The Board concluded the claim was never perfected for more than 243 afa and had been reduced by forfeiture to 15 afa as there was no evidence that the original owner ever made appropriative use of water under the claim, beyond 15 afa. Millview was limited to the use of 15 afa, the amount presumably used by the original underlying permittee, Waldteufel, for the growth of grapes and walnuts on the original 33.88-acre parcel, purchased in 1913.
On appeal, the court agreed that the Board had authority to determine whether water appropriated pursuant to a claimed pre-1914 water right that was never perfected, has been forfeited or is otherwise invalid, relying on Young v State Water Resources Control Bd., (2013) 291 Cal App. 4th 397 and Water Code section 1831. Young also held that pursuant to Water code section 1831, the board can make a preliminary determination for purposes of enforcement whether the diverter has either the riparian or pre-1914 appropriative rights it claims without filing a lawsuit. The diverter or interested parties can thereafter seek judicial review if warranted. The court also held that the scope of a pre-1914 claim is determined by the amount of water actually used by the claimant, not the amount claimed.
Finally, the court determined that a competing claim to the unused water by a rival diverter must be present. If no other beneficial use for the surplus water has been asserted, there is no reason to find a forfeiture. Fortunately for Millview, no competing claim was found to exist. No other entity had used the unappropriated water for any beneficial use, or any use whatsoever.
It is in the best interest of water rights holders to seek legal advice now, proactively, to understand the implications of these recent legal opinions. William K. Koska and Associates have the experience and resources to assist you with any questions/concerns you may have as a water rights holder. We would be pleased to review your rights and offer guidance if there are steps you should take to protect those rights now, and in the future.
See Part 2 here.
Author – William K. Koska, Law Offices of William K. Koska and Associates, Attorney.
Water rights holders need to get legal advice now before they are challenged by the State Water Resources Control Board (Board), or potentially other agencies, for every acre foot they believe they can claim as their own for possible redistribution and resale.
In California both riparian and appropriative rights are permissible. Property owners whose land contains a river or stream, or borders a river or stream, generally have use of the water and thereby riparian rights to it. There is no predetermined limit on the amount of water that an individual riparian user may divert, so long as the uses to which the diverted water is put are riparian, beneficial and reasonable.
Appropriators, those who hold the right to divert water for use on noncontiguous lands, are separated into pre-1914 rights and post-1914 rights. An appropriator before 1914 was required only to post a notice of intent to divert water. After December 19, 1914, appropriators had to file an application with the state administrative agency in charge-presently the State Water Resources Control Board. The appropriator had to show that unappropriated water was available, and that it could be put to beneficial use. Appropriators may divert only so much water as is authorized by their permit.
In September of 2014, the Court of Appeal for the First Appellate District rendered its opinion in Millview County Water District v. State Water Resources Control Bd., 229 Cal App. 4th 879. The case concerned the sale of a pre-1914 appropriative right to the Millview Water District by two individuals who acquired the rights to Russian River water from the prior owners in 1998. Millview was formed to supply water to an unincorporated area of Mendocino County. This area was part of an original parcel of 165 acres in 1913 called lot 103 of the Rancho Yokayo. Of that 165 acre parcel, a man named Waldteufel purchased a 33.88 acre parcel in 1913 and recorded a notice of appropriation of water, at issue in the case.
A citizen’s complaint to the Board, and an evidentiary hearing resulted in the Board issuing a Cease and Desist Order (CDO) restricting Millview’s diversion of water under the right, finding it had been largely forfeited by a period of diminished use from 1967 through 1987. The Board concluded the claim was never perfected for more than 243 afa and had been reduced by forfeiture to 15 afa as there was no evidence that the original owner ever made appropriative use of water under the claim, beyond 15 afa. Millview was limited to the use of 15 afa, the amount presumably used by the original underlying permittee, Waldteufel, for the growth of grapes and walnuts on the original 33.88-acre parcel, purchased in 1913.
On appeal, the court agreed that the Board had authority to determine whether water appropriated pursuant to a claimed pre-1914 water right that was never perfected, has been forfeited or is otherwise invalid, relying on Young v State Water Resources Control Bd., (2013) 291 Cal App. 4th 397 and Water Code section 1831. Young also held that pursuant to Water code section 1831, the board can make a preliminary determination for purposes of enforcement whether the diverter has either the riparian or pre-1914 appropriative rights it claims without filing a lawsuit. The diverter or interested parties can thereafter seek judicial review if warranted. The court also held that the scope of a pre-1914 claim is determined by the amount of water actually used by the claimant, not the amount claimed.
Finally, the court determined that a competing claim to the unused water by a rival diverter must be present. If no other beneficial use for the surplus water has been asserted, there is no reason to find a forfeiture. Fortunately for Millview, no competing claim was found to exist. No other entity had used the unappropriated water for any beneficial use, or any use whatsoever.
It is in the best interest of water rights holders to seek legal advice now, proactively, to understand the implications of these recent legal opinions. William K. Koska and Associates have the experience and resources to assist you with any questions/concerns you may have as a water rights holder. We would be pleased to review your rights and offer guidance if there are steps you should take to protect those rights now, and in the future.
See Part 2 here.
Author – William K. Koska, Law Offices of William K. Koska and Associates, Attorney.
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