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Water Rights

DEFINITION

Rights of property owners to reasonably use water located below the surface of their properties.

EXPLANATION

Water rights refer to a landowner’s ability to extract water from a water source, such as a stream, river, or underground collection. California’s unique geographic conditions have led to the creation of two types of water rights: riparian and appropriative.

Types of Water Rights

Riparian Rights

Riparian rights allow property owners to use and divert water from a water source on his or her residential property. This guides the disbursement of water among property owners whose land borders, crosses, and/or enters water.

A property owner who intends to make use of water on his or her property may be required to get a permit. This typically applies to situations involving commercial water use.

A landowner’s water use must be “reasonable” and serve a purpose that benefits more than one party. He or she does not have the right to use more water than necessary. His or her use cannot reduce the quality or substantially reduce the amount of water.

For example, a large local farm that supplies a significant amount of produce would have the right to use water running through the farm because the production of crops is beneficial to the local economy.

Riparian rights do not give landowners ownership over the water, but rather, the legal right to use the water. Therefore, landowners do not have the right to remove water from the water source and sell or transfer it to others.

If a landowner sells his or her land, his or her water rights are terminated.

Appropriative Rights

Appropriative rights allow property owners to divert, or transport, water in one location to be used in another. These rights are typically used for farming.

Right of Prior Appropriation

California also recognizes the right of prior appropriation. The right of prior appropriation is a legal concept whereby the first legal holder of a water right retains that right over future users. This embodies the “first in time, first in right” principal.

When a water source passes through multiple properties, all property owners possess the same right to use and enjoy the water.There are instances when the government has the right to terminate a property owner’s right to use the water on his or her property. The right of appropriation allows the government to confiscate or divert water for a beneficial purpose that benefits the community.

Water Rights Law

California’s unique geographic conditions has led to the creation of a water system where water rights are primarily appropriative and riparian.

The right of prior appropriation is a legal concept whereby the first legal holder of a water right retains that right over future users. This embodies the “first in time, first in right” principal. When a water source passes through multiple properties, all property owners possess the same right to use and enjoy the water.

Water rights only provide use of the water, however, not ownership.

Consequently, the owner of a property with an abundant water supply does not have the right to disrupt access to that water during a drought for the purpose of driving up the price of water.

California has strict environmental regulations. The State Water Board is an agency tasked with creating and enforcing water laws in California. Its objectives include promoting the fair use of water and preserving the state’s unique water sources. These objectives must be pursued in consideration of property owners’ water rights.

Getting Permits for Water Use

A property owner who intends to make use of water on his or her property may be required to get a permit. (This is typically applicable to situations involving commercial water use.) The permit review process is extensive and approval is never guaranteed. The process of obtaining a permit takes at least a year, but it can take much longer.

Water rights are typically not contentious in areas with plenty of water and/or fewer users. However, areas where water is scarce and/or there are many users can lead to water right disputes.

For example, after several consecutive dry years, California issued a state of emergency in 2014 due to a lack of water. The state subsequently increased water prices, restricted water access during certain periods, and imposed harsh penalties on “unreasonable” water users as a means of combating the water shortage.

Other Water Rights in California

Prescriptive Water Rights: gained through the unauthorized use of a property for the purpose of gaining property rights through adverse possession.

Littoral Rights: rights of property owners whose properties border non-flowing bodies of water, such as lakes, seas, or oceans.

Pueblo rights: rights of California cities that are successors of Spanish or Mexican pueblos, or settlements, to beneficial use of naturally-occurring water.

The Right of Correlative Use: legal doctrine that limits the water rights of property owners who share the same water source as one another, Correlative use gives property owners equal access through a reasonable share of the water, usually based on the size of an owner’s property.

Reliction: provision stating that when bodies of water — such as a pond, river, lake, sea, or ocean — permanently move back, the adjacent land becomes the property of the adjoining property owner.

Avulsion: refers to the sudden loss or addition to a property from the action of water. For example, if a river suddenly changes in a manner different from normal activities, it can change property lines. A property owner has the right to reclaim a property where avulsion has occurred for one year.

Accretion: refers to the gradual loss or addition to a property through the action of water.

Case Law As it Relates to Water Rights

Case Review: Gilbert v. State (1990)

The case, Gilbert v. State (1990) 218 Cal.3d 234., involved a landowner seeking severance damages for restrictions on his water rights during a drought.

The State instituted a water moratorium in an area due to an ongoing drought. It temporarily halted new water service connections in order to protect the state’s water reserves. A landowner (Gilbert) alleged that the water moratorium violated his water rights. He brought legal action against the State, seeking severance damages.

The Superior Court contended that the State did not violate Gilbert’s water rights because it was fulfilling a legitimate public purpose. It argued that since Gilbert had purchased the land without any water service, the water moratorium did not warrant severance damages. The ruling was for the state.

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