Water Rights 101 LOUIE BROWN KAHN SOARES CONWAY

Water Rights 101 LOUIE BROWN KAHN, SOARES & CONWAY, LLP

Basic Water Rights �Riparian – land with water �Prior appropriation – First in time; First in Right

Riparian �English Common Law �Appurtenant to Land – the Right to divert water from a water body adjoining land for use on the adjoining land. �Part of the bundle of rights that runs with the land. If land is severed from the water body, the riparian right may be lost unless preserved by title. �Reasonable use �Not lost through non-use

Prior Appropriation �Western law �Perfection of right through posting a notice at place of diversion �Priority based upon first in time; first in right �May be forfeited �May require a State Permit

1914 �Pre Appropriative right that pre-dates the State Water Resource Control Board’s authority to regulate the State’s water supply �Post – State develops a process for recognizing appropriative water right. Permits issued which include � Point of diversion � Time period when diversion can take place � Quantity of water that can be diverted � Intended place of use � Intended purpose of use

Top 20 water rights holders in CA �Government holds 10 of top 20 with US Bureau of land management holding more rights than all other entities combined. Sierra Pacific Industries City of LA Dept of Water & Power PG&E Diamond Lands Corporation

Contracts �Not a water right �Contract between the water right holder and another entity that will take the delivery of water diverted by means of the water right Exchange � 1993 - CVP Settlement � CVP

Groundwater �Overlying Pumper Analogous to riparian rights in a stream Correlative �Non-overlying Pumper Analogous to appropriative rights First in time; first in right �Prescriptive rights Adverse possession – 5 year prescriptive period Prescriptive right cannot be obtained against public agency �Federal reserved rights Armed Forces bases Native American tribal lands

Curtailment Orders � 2015 – first time since the 1976 -77 drought, the SWRCB issued curtailment orders for the Sacramento-San Joaquin River and Delta watershed and the Scott, Russian, and Eel watersheds, and for several other river systems. �Orders directed junior appropriators, post 1914 appropriators to immediately cease diverting water. �Pre-1914 curtailment notices also sent to Sacramento, Feather River and Delta watersheds

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