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CALIFORNIA LAW OF SURFACE WATER AND

GROUNDWATER

Presentation toCalaveras County Water District

July 22, 2015

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Overview of Presentation

● Surface water rights

● Groundwater rights

● Sustainable Groundwater Management

● 2015 Water Right Curtailments

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Surface Water

• Types of rights to surface water

• Water right priorities

• Reasonable use

• The public trust doctrine

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Riparian Rights• No permit required; right arises from ownership of

land that abuts a watercourse.

• Only direct diversion; no seasonal storage.

• Use may only be on riparian parcels.

• Riparian right-holders have equal priority; they share water shortages on a pro-rata basis

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Riparian Rights (cont.)• Rights not subject to forfeiture due to non-use but

“dormant” rights may be subordinated (put last in priority) in a stream adjudication.

• Riparian lands only decrease, never increase: riparian right is severed when land is subdivided and no longer abuts a watercourse, and deed does not preserve the right.

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Appropriative Rights

• Right may be for direct diversion or seasonal storage

• Perfected by applying water to beneficial use

• Water may be used on any lands within authorized place of use

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Appropriative Rights (cont.)

• Pre-1914: Permit not required to for a right established prior to December 19, 1914

• Post-1914: Priority date for post-1914 rights is the date of filing of the application with the SWRCB

• Riparian rights typically have priority over appropriative rights

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Appropriative Rights (cont.)

• A senior right must be fully satisfied before a junior right may be exercised.

• SWRCB includes permit terms limiting the appropriation, to further the public interest.

• Subject to forfeiture for non-use (5 years).

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Reasonable Use

• Article X, section 2 was added to the California Constitution in 1928.

• Limits all water rights (whether riparian, appropriative, surface or groundwater) to reasonable and beneficial uses.

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Reasonable Use (cont.)

Reasonableness depends on the circumstances and standard may change over time.

– Unreasonable use in 1935: using water to drown gophers.

– Unreasonable use in 1967: using water to amass and lift sand and gravel.

– Unreasonable use in 2015: watering ornamental turf in Russian River watershed.

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The Public Trust Doctrine (cont.)

Nat. Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 446), California Supreme Court stated:

“The state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible. . . .”

The Public Trust Doctrine (cont.)

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● Public trust doctrine does not require that conflicts between public trust uses and other water uses always be resolved in favor of protecting the public trust. (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 778.)

● The SWRCB (or the courts) must determine whether it is "feasible" to protect public trust uses. In doing so it must decide whether protection is "consistent with the public interest."

California Groundwater Law

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Types of Groundwater Rights

• Overlying Rights

• Appropriative Rights

• Prescriptive Rights

• Pueblo Rights

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An Important Rule

• Public use of groundwater is not an overlying use.

• Use of groundwater by cities, counties, special districts and CPUC-regulated utilities is an appropriative use (behind overlying uses from a water right priority standpoint absent prescription).

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Priority Rules

• Overlying vs. Overlying

• Overlying vs. Appropriative

• Appropriative vs. Appropriative

• Prescriptive

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What is Overdraft?

• A condition caused by pumping in excess of safe yield plus any temporary surplus that produces undesirable result(s) such as chronic lowering of groundwater levels, inducement of seawater intrusion or other water quality degradation, land subsidence, etc.

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Overdraft-Related Undesirable Effect:Chronic Decline in Ground-Water Levels

(San Fernando Valley)

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Overdraft-Related Undesirable Effect:Depletion of Ground-Water Storage (Antelope Valley)

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Overdraft-Related Undesirable Effect:Seawater Intrusion (Salinas Valley)

(from MCWRA, 2001, Salinas Valley Water Project Summary Report)

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Overdraft-Related Undesirable Effect:Land Subsidence (Mendota Area, San Joaquin Valley)

(from Water Education Foundation, Layperson’s Guide to Groundwater, 2003)

Sustainable Groundwater Management Act (SGMA)

• SGMA requires that "[a] groundwater sustainability plan shall be developed and implemented for each medium- or high- priority basin by a groundwater sustainability agency to meet the sustainability goal established pursuant to this part." (Water Code section 10727(a))

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SGMA

• All basins designated medium or high priority that are subject to critical conditions of overdraft shall be managed under a GSP by January 31, 2020.

• Local agencies may become groundwater sustainability agencies or, in the absence of local management the State of California may intervene.

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2015 Water Right Curtailments

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2015 Curtailments

• April 23 and May 1, 2015: curtailed all post-1914 appropriative water rights in Sacramento and San Joaquin River watersheds

• June 12, 2015: curtailed same back to 1903. • June 26, 2015: curtailed Merced to 1858

Curtailments enjoined

"The Court finds that the issuance of the May Curtailment Letter violated Petitioners’ Due Process rights. Every day the Letter remains in its current form constitutes a violation of those constitutional rights."

Curtailments enjoined

"Respondents [SWRCB] are free to provide truly informational notices to water diverters of the nature of the drought and the Board’s right to initiate Water Code section 1831 or 1052 proceedings."

The matter is set for an order to show cause on July 30, 2015 at 9:00 a.m.

Rescission of Curtailments

• July 15, 2015: "To the extent that any of the notices described above contain language that may be construed as an order requiring you to stop diversions under your affected water right, that language is hereby rescinded. Similarly, any language that may be construed as requiring affected water right holders to submit curtailment certification forms is hereby rescinded."

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SWRCB Enforcement Actions

If the State Water Board finds following an adjudicative proceeding that a person or entity has diverted or used water unlawfully, the State Water Board may assess penalties of up to $1,000 per day of violation and $2,500 for each acre-foot diverted or used in excess of a valid water right. (See Water Code, §§ 1052, 1055.)

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SWRCB Enforcement Actions

• SWRCB has issued several draft Administrative Civil Liability Complaints for unauthorized diversion and use of water including draft Complaint issued July 20, 2015 against Byron-Bethany Irrigation District seeking $1.5 million civil penalty.

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Thank you.

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