The following websites and contact information will provide you with informationregarding the water rights process in California and Nevada.

USDA Forest Service

Contact information:

Pacific Southwest Region1323 Club DriveVallejo, CA 94592707.562.8737TTY: 707.562.9130

Randy GouldWater Uses Program ManagerPacific Southwest Region707-562-8956

Forest Service Websites

http://www.fs.fed.us/r5/http://www.fs.fed.us/r5/forests.htmlhttp://www.fs.fed.uslim/directives/fsm/2500/2540.txt

State of California

Contact information:

Purpose Number

General General Water Right information; (916) 341-5300Requesting an Application to divert water;Filing a Groundwater Extraction Report; andlor,Supplemental Statement of Water Diversion and use.All other forms.

Filing a Water Right Application, Protest or Petition (916) 341-5356

Filing a complaint regading unauthorized stream (916) 341-5348diversion

Filing a License or Permittee report (916) 341-5348-- - -

Division of Water Rights Fax Number (916) 341-5400-

Small Business Assistance (916) 341-5274

Division of Water Rights phone directoryhttp://www.waterrights.ca.gov/staffdirectory.htm

State of California websites

Information on California Waterrightshttp://www.waterrights.ca.gov/WRINFO/

Californian Water Codehttp://www.leginfo.ca.gov/calaw.html

California Code of Regulationshttp://government.westlaw .comllinkedslice/ default. asp?SP=CCR -1000

Fully Appropriated Streams Listhttp://www.waterrights.ca.gov/html/faslist.htm

Water Rights Processhttp://www.waterrights.ca.gov/html/wrprocess.htm

State of Nevada

http://water.nv.gov/

Water Rights Overviewhttp://water.nv.gov/Water%20Rights/Water%20Law/waterlaw.htm

Nevada Water Rights Databasehttp://water.nv.gov/Water%20Rights/permitdb/permitdbdisc1aimer.htm

Water Words Dictionaryhttp://water.nv.gov/Water%20Planning/dict-lIww-index.htm

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AN OVERVIEW OF WATER RIGHTS IN CALIFORNIA

Three California agencies playa role in regulating state water rights and uses:

California Department ofFish and Game (DF&G), is charged with protecting state's fish andwildlife resources. DF&G assesses an "environmental filing fee" to any applicant for anappropriative water right that exceed the limits for domestic use registration. These fees supportpreparation of streamflow protection standards on stream studies around the state. See map forState and Regional offices.

The California water rights process is outlined in California Water Code and the Department ofFish and Game is the Trustee Agency mandated to protect California's fish and wildlife resourcesfor the people of the State (Fish and Game Code § 711.7). Article X ofthe Constitution of theState of California states that "water resources shall be put to beneficial use to the fullest extentof which they are capable, and that the waste or unreasonable use or unreasonable method of useof water be prevented, and that the conservation of such waters is to be exercised with a view tothe reasonable and beneficial use thereof in the interest of the people and for the public welfare."Water Code §1243 states that "The use of water for recreation and preservation and enhancementoffish and wildlife resources is a beneficial use of water." The Department of Fish and Game'sMission Statement is:

To manage California's diverse fish, wildlife, and plant resources, and the habitats upon whichthey depend, for their ecological values and for their use and enjoyment by the public.

1. California Department ofFish & Game (Department) involves itself in water rightapplications through a tiered process, It can either comment on a project proposal throughthe California Environmental Quality Act (CEQA) process or by directly protesting theApplication per Fish and Game Code §'s 711.7 and 1802. The Department will commenton a CEQA document in anticipation of a lengthy process before the State WaterResources Control Board (SWRCB). There have been situations where the Departmentfailed to comment on a CEQA document due to staffing priorities and subsequentlysubmitted a protest without commenting on the CEQA document. The CEQA process isan information dissemination document designed to present alternatives and appropriatemitigation for significant impacts. The Lead Agency, (often water districts), can over ridemitigations and recommendations proposed by trustee agencies thus, sometimes givingpeople the impression that this is a waste of resources.

2. The Department can protest any pending application before the SWRCB. Whether itis a new application, change in purpose of use, change in point of diversion.

3. The Department can involve itself in pre-1914 water rights when it has determinedthat the water right is causing undo harm to aquatic ecosystems or other public trustvalues. The Department can make a request for legal documentation of the right and userecords from the operator. Following receipt of that information the Department canevaluate the validity and compliance with the claimed right. Should there be

discrepancies the Department can file a complaint with the SWRCB or the local districtattorney or state attorney general.

4. The Department has involved itself in groundwater pumping issues where it isbelieved that over-utilization of those resources may adversely impact public trust values.The Department has become involved usually through local land planning processeswhere a project proponent proposes to tap into groundwater to supply the project withsource water and there are believed to be potential impacts to nearby surface waters. Thenext steps may involve litigation challenging the legality of the CEQA document or theproposed groundwater management plan. Over allocation or utilization is only recentlydrawing the attention of resource agencies.

5. If the Department becomes aware of illegal diversion of water by a party, theDepartment can take several courses of action ranging from filing of a criminal complaintwith local district attorney, filing a complaint with the SWRCB, or asking CaliforniaAttorney General to investigate the complaint.

6. The Department is notified by the SWRCB of all water right applications per WaterCode §1243. The Department is required to submit a Protest with applicable studies orinformation to back up injury claims set forth in the Protest. The Department (or anyprotestant) has 60 days to respond if the application is for a direct diversion greater than 3cubic feet per second (cfs) or greater than 200 acre-feet (AF) of storage. If the directdiversion is 3 cfs or less than 200 AF of storage the Protestant has 40 days in which torespond. Protest forms are available at the SWRCB web site. (FORMS)

7. Historically the Department would list the aquatic and terrestrial resources thatcould potentially be injured by the proposed water right application, and if availablepresent preliminary data to support those assertions. Requests would be made for theapplicant to submit studies determining the extant of the impact to those resources.Following receipt of those studies, dismissal terms (dismissal terms are those that wouldallow for the protest to be dismissed after they have been addressed) would be developedthat would protect the resource. In most cases this is still the process followed, howeverrecently the SWRCB has required that the Department submit data and studies backingup claims of injury. Additionally, if the Department failed to comment on the CEQAdocument, protests could be limited or diminished by the SWRCB. This is done under thepremises that the Department should give the applicant all available opportunities toaddress up front, issues raised by the Department.

California Department of Water Resources (DWR), has overall responsibility for managing thestate's water resources. DWR conducts statewide water resource planning, operates the StateWater Project, and runs the federal-state Flood Operations center.

State Water Resources Control Board (SWRCB), is part ofDWR, and together with nineRegional Water Quality Control Boards, regulates water quality in all state waters; sets waterquality standards and administers the state's permit system to appropriate and divert surface

California Department of Fish and GameState Headquarters Regional Headquarters

~

Resources Building1416 Ninth Street, 12th FloorSacramento, CA 95814(916) 653-7664

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. Northern California - North Coast Region«;:{ 601 Locust StreetRedding, CA 96001

. (530) 225-2300

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Sacramento Valley - Central Sierra Region~ 1701 Nimbus RoadH Rancho Cordova, CA 95670

(916) 358-2900

§] Central Coast Region~ 7329 Silverado TrailN Napa, CA 94558

(707) 944-5500

Mailing Address:P. o. Box 47Yountville, CA 94599

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San Joaquin Valley - Southern Sierra Region~ 1234 E. Shaw AvenueN Fresno, CA 93710

(559) 243.4005

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South Coast Region~ 4949 Viewridge AvenueN San Diego, CA 92123

(858) 467.4201

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Eastern Sierra· Inland Deserts RegionA 3602 Inland Empire Boulevard, Suite C-220N Ontario, CA 91764

(909) 484-0167

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Marine Region (along entire coast)

* 20 Lower Ragsdale Drive #100Monterey, CA 93940(831) 649-2870

Field Offices

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water; allocates water between competing beneficial uses in a watershed for state waterrights. The Forest Service will generally work with the Division of Water Rights under theSWRCB.

Water right law in California and the rest of the West is markedly different from the lawsgoverning water use in the eastern United States. Seasonal, geographic, and quantitativedifferences in precipitation caused California's system to develop into a unique blend of twovery different kinds of rights: riparian and appropriative. Other types of rights exist inCalifornia as well, among them reserved rights (water set aside by the federal government whenit reserves land for the public domain) and pueblo rights (a municipal right based on Spanish andMexican law).

Riparian rights usually corne with owning a parcel ofland that is adjacent to a source of water.With statehood, California adopted the English common law familiar to the eastern seaboard;such law also included the riparian doctrine.

A riparian right entitles the landowner to use a correlative share of the water flowing past his orher property. Riparian rights do not require permits, licenses, or government approval, but theyapply only to the water which would naturally flow in the stream. Riparian rights do not entitle awater use to divert water to storage in a reservoir for use in the dry season or to use water on landoutside of the watershed. Riparian rights remain with the property when it changes hands,although parcels severed from the adjacent water source generally lose their right to the water.

Water right law was set on a different course in 1849, when thousands of fortune seekers flockedto California following the discovery of gold. Water development proceeded on a scale neverbefore witnessed in the United States as these "forty-niners" built extensive networks of flumesand waterways to work their claims. The water carried in these systems often had to betransported far from the original river or stream. The self-governing, maverick miners appliedthe same "finders-keepers" rule to water that they did to their mining claims--it belonged to thefirst miner to assert ownership.

To stake their water claims, the miners developed a system of "posting notice" which signaledthe birth oftoday's appropriative right system. It allowed others to divert available water fromthe same river or stream, but their rights existed within a hierarchy of priorities. This "first intime, first in right" principal became an important feature of modem water right law.

In 1850, California entered the Union as the thirty-first state. One of the first actions taken by itslawmakers was to adopt the common law of riparian rights. One year later, the Legislaturerecognized the appropriative right system as having the force of law. The appropriative rightsystem continued to increase in use as agriculture and population centers blossomed andownership of land was transferred into private hands.

The conflicting nature of California's dual water right system prompted numerous legaldisputes. Unlike appropriative users, riparian right holders were not required to put water toreasonable and beneficial use. This clash of rights eventually resulted in a constitutionalamendment (Article X, Section 2 of the California Constitution) that requires all use of water to

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be "reasonable and beneficial." These "beneficial uses" have commonly included municipal andindustrial uses, irrigation, hydroelectric generation, and livestock watering. More recently, theconcept has been broadened to include recreational use, fish and wildlife protection, andenhancement and aesthetic enjoyment.

Up to the early 1900's appropriators--most of them miners and non-riparian farmers-shad simplytaken control of and used what water they wanted. Sometimes notice was filed with the countyrecorder, but no formal permission was required from any administrative or judicial body.

The Water Commission Act of 1914 established today's permit process. The Act created theagency that later evolved into the State Board and granted it the authority to administer permitsand licenses for California's surface water. The act was the predecessor to today's water Codeprovisions governing appropriation.

These post-1914 appropriative rights are governed by the aforementioned hierarchy of prioritiesdeveloped by the forty-niners, In times of shortage the most recent ("junior") right holder mustbe the first to discontinue such use; each right's priority dates to the time the permit applicationwas filed with the State Board. Although pre- and post-1914 appropriative rights are similar,post-1914 rights are subject to a much greater degree of scrutiny and regulation by the Board.

Riparian rights still have a higher priority than appropriative rights. The priorities of riparianright holders generally carry equal weight; during a drought all share the shortage amongthemselves.

GROUNDWATER

By 1911, appropriation procedures were being developed for California surface water. Groundwater flowing through known and definite channels, a very small percentage of the total groundwater resource, is subject to the appropriation requirements of the State Water Resources ControlBoard. Percolating ground water, by far the bulk of the resource, was not included in theregulations. There are no comprehensive statutory provisions for delineating percolating groundwater rights. Instead, a number of judicial decisions control this area of law.

A significant decision was rendered in 1903 by the state Supreme Court in the case of Katz v.Waikinshaw. Shortly after California was admitted to the Union in 1850, it adopted the Englishcommon law system. The court in Waikinshaw decided that the English ground water rightssystem of essentially unregulated pumping wasn't compatible with the needs of California's aridclimate. Instead, the Court held that a rule of reasonable use must be applied to ground waterresources. It established the concept of an overlying right in which all property owners above acommon aquifer possess a mutual right to use of a reasonable ground water resource on landoverlying the aquifer from which the water is taken.

As a result, the owner of the strongest pump or deepest well could no longer take unlimitedquantities of ground water without regard to the needs of other property owners over the sameaquifer. In addition, solely by pumping first, overlying users do not obtain priority over other

overlying users who later tap the ground water resource. Like riparian rights, overlying rights arecorrelative regardless of the water use status or date wells were established.Later court decisions have established that ground water may be appropriated by pumping andtransporting the resource for use on non-overlying land but no permit procedure exists to regulateground water appropriations. The appropriator's use of ground water is unlikely to be disturbedunless another ground water user feels that his or her water right is being threatened and takesthe problem to court or unless the extraction of ground water produces problems, such assubsidence, which induce local government regulation or court action. Appropriators of groundwater possess a right subordinate to an overlying right. If a ground water basin is adjudicated,however, and all reasonable and beneficial overlying rights are satisfied and sufficient surplusground water exists, the claim of an appropriator will be allowed by the court under mostcircumstances. Among ground water appropriators the "first in time-first in right" priority systemapplies.

Another landmark ground water court case that is significant is Pasadena v. Alhambra (1949).In this case the California Supreme Court developed the doctrine of mutual prescription. Forchronically over-drafted ground water basins the court decided that both overlying andappropriative users had acquired prescriptive rights, or rights to infringe upon the water rights ofeach other, and were awarded a pro rated share of the basin supply. Rights to the use of groundwater were based upon the last five years of pumping history, held to be a demonstration of need.

State Groundwater Bulletin 118 can be found as an attachment to this document. Simply click on theAttachment tab to access the document.

Chronology of Major Decisions Affecting Water Rights in California Including FederalReserved Water Rights

1848 -Riparian and Pueblo Rights. Treaty of Guadalupe Hidalgo is signed, ceding Californiafrom Mexico to the United States. All property rights under Mexican law areprotected, included private riparian and pueblo water rights.

1849 -Early Appropriative Rights. California Gold Rush begins and miners develop thesystem of posting notice to hold a water claim. Appropriative rights are acquiredsimply by physically controlling and beneficially using water posted under claim.

1850 -Early Riparian Rights. California becomes the 31st state and adopts English commonlaw, including its doctrine of riparian rights, on top of the existing miner'sappropriative rights system and pueblo rights.

1855 -Appropriation judicially recognized: Irwin v. Phillips. Rights based on appropriationof water on public lands are recognized by the State.

1872 -Recording Sets Priority. Appropriators are given the option to file their water claimswith the county recorder to preserve priority. No state centralized filing system yetexists.

1886 -Riparian rights judicially recognized: Lux v. Haggin. Riparian versus appropriatorclash. Court decides in favor of riparians and reaffirms the doctrine of riparianrights in California. Court upholds the right of riparians on private land to demandundiminished flow of water source.

1887 -Irrigation District Law: Wright Act. Permits formation of irrigation districts.Recognizes use of water for irrigation as a public benefit.

1897 -Organic Act. National Forest lands withdrawn authorizing reserved rights for timber,favorable conditions of flow. Watershed in good condition implies quality andquantity of water.

1903 -Groundwater rights shared by overlying users: Katz v. Walkinshaw. Established theconcept of overlying rights in which all property owners above a common aquiferpossess a right to use that groundwater resource. Overlying rights are held to becorrelative, or shared in times of shortage. Appropriative groundwater rights aresubordinate to correlative rights of overlying users.

1908 -Federal reserved rights established: Winters v. US. All federal Indian reservationscarry an implied and unqualified right to water sufficient for the purpose for whichthe reservation was created. In subsequent decisions; the implied right is not lostby non-use, is not subject to diligence and beneficial use requirements and assumesthe date of creation of the reservation as its date of priority.

1914 -State Permit system begins: Water Commission Act. Appropriators are required tocomply with the state-centralized water use permit process and terms andconditions attached to permits and licenses.

1920 -Fifth Proclamation (No. 1575): Modoc NF lands withdrawn under this proclamationauthorizing reserved rights for timber, watershed and grazing purposes.

1922 -National Forest water uses recorded. Forest Service first gave State listing of existingwater use.

1926 -Unreasonable use by riparians upheld: Herminghaus v. Southern California. Adownstream riparian can command the entire flow of a river to flood-irrigate land.Decision upheld the riparian's right to use water in an unreasonable and wastefulmanner as against claims of an appropriator.

1928 -California Constitution amended to require reasonable use. Requires all water uses,riparian and appropriative, to be both reasonable and beneficial.

1948 -P.L. 449. Shasta NF lands withdrawn under this law authorizing reserved rights for allmanagement purposes.

1949 -Mutual prescription for groundwater pumping to establish use rights: Pasadena v.Alhambra. A "race to the pumphouse" occurs as ground water users attempt topump maximum quantities of water to acquire sizable water rights.

1952 -State adjudication of federal rights: McCarran Amendment. Enables state courtsalong with federal courts to adjudicate, or quantify, federal water rights in a stream-wide adjudication.

1959 -Permittees water rights for water used on NFS land will be held in name of UnitedStates.

1960 -Multiple Use Sustained Yield Act. Established reserved rights for recreation, fisheries,range, wildlife.

1963 -Federal reserved rights extended to non-Indian federal reservations: Arizona v.California. Forest Service began to assert federal reserved water rights formanagement of all resources rather than applying for consumptive water uses underState laws and procedures. Instream flows were largely unprotected.

1964 -Wilderness Act. Established preservation of wilderness characteristics identified underthe wilderness designation.

-Forest Service started filing for reserved rights under state law (recorded on form 2500-7). Water permit applications (in application phase) became reserved rightsinstead.

1965 -Forest Service started filing, for State information only, on pre-1914 riparian rights(SWRCB Form 40).

1974 -Stockpond certificates. Legislation provided for stock watering claims made prior to1978 with priority date = date built; claims made after 1977 with priority date =date filed.

1975 -Mutual prescription limited: Los Angeles v. San Fernando. Reaffirms the puebloright, limits the doctrine of mutual prescription and revives correlative rights foroverlying groundwater users. Water rights of a public entity cannot be prescriptedbut public and private entities may prescript against private entities.

1976 -Federal reserved right limited: Cappaert v. US. Implied water rights attached tofederal reservations extend only to such water as is necessary to accomplish theprimary purposes of that reservation.

-Direct diversion by riparians limited: SWRCB v. FORNI. Direct diversion of waterby riparians was an unreasonable use of water when there was insufficient water tosupply the instantaneous needs of all persons and that the shortage could beprevented by utilizing storage reservoirs.

1978 -Rio Mimbres decision: US v New Mexico. Narrowed scope of reserved rights to onlythose primary purposes land was reserved for, favorable water flow and continuoussupply of timber. Now Forest Service must determine claim necessary for securingfavorable conditions of stream flow. Forest Service must obtain water rights for"secondary purposes" (instream flows for fisheries, wildlife, recreation, astheticvalues and stock watering) under state law.

-President's Water Policy standardized federal reserved water rights activities. Federalagencies directed to work closely with states to protect fish and wildlife and othervalues associated with instream flows; develop an inventory of reserved lands orwater administered by the Forest Service; develop methodology by which each typeof reserved right claim may be physically quantified; establish a priority list ofareas where reserved rights will be claimed; resolve disputes with emphasis onnegotiation rather than litigation; assert reserved rights reflecting true need ratherthan theoretical or hypothetical need; state will be the focal point for water resourcemanagement.

1979 -Instream use beneficial but not subject of permit: Fullerton v. SWRCB. Instream usesof water, although clearly beneficial uses in a water right law sense, cannot be thesubject of an appropriative water right application. Appropriative rights water use

must be a physical diversion out of stream, impounded or discharged through awater wheel.

Instream use not a riparian beneficial use since must have a diversion to execiseriparian rights.

-Unused riparian rights given lower priority: Rowland v. Rameli. In Long ValleyCreek case, dormant riparian rights are not lost through nonuse, but the SWRCB inconducting general statutory adjudications, may assign a subordinate priority to thedormant riparian right and reserve jurisdiction to quantify such rights when they areactivated.

1981 -State conditions allowed on federal project: US v. California. Court upheld a numberof conditions placed on the New Melones Project by the SWRCB including aprohibition against storage of water for consumptive uses until the US hasdeveloped a plan for such uses; a prohibition against storage solely for powerpurposes; water quality and area of origin conditions.

1983 -Statutory adjudication quantifies federal reserve right: Nevada v. US. Oncequantified in a general stream adjudication, parties to the adjudication are limited tothe amount of water decreed and cannot assert a greater right, even against thosenot party to the prior adjudication.

-Public Trust doctrine upheld: National Audubon Society v. Superior Court. Publictrust applies to Los Angeles rights to divert water from streams tributary to MonoLake. Los Angeles has no vested rights and may reconsider the impact on thepublic trust.

-State sanction of reserved rights under Multiple Use Sustained Yield Act: Section1227 California Water Code. Appropriative process for "secondary" purposessuspended by grandfather filing by 7/1/1984 for water uses prior to 7/3/1978.Priority date = date use began or date special use permits issued to private parties(range, recreation, wildlife). Need to look at dates use began for grandfathered usesvs. filing dates for riparian rights (SWRCB 40 forms) to take duplicates out of Statesystem. Some uses never filed and may be included on existing other uses.

1985/86-Wilderness reserved rights: Sierra Club I and Sierra Club II. Colorado courtdecisions that a federal reserved right exists in a minimum amount necessary to satisfy thepurposes for which wilderness areas were set aside. Priority date is the date of wildernessdesignation.

1986 -Reasonable Use rule reinforced: US v. SWRCB. Reasonable use is the cardinalprinciple of California's water law. All water rights are subject to governmentregulation and "no one has a vested right to use water in a manner harmful to theState's waters".

-Unexercised federal rights are given lower priority: Hallet Creek decision.California didn't recognize riparian rights on federal lands, but court decision gavefederal lands the same riparian rights as other land owners. Unexercised federalwater rights are given junior status, or lower priority, than those of active users onthe same stream. The federal government must seek an appropriative permit forany amounts above their traditional usage and can be treated equally in the event ofa statutory adjudication.

1987 -Unreasonable use by pre-1914 appropriators subject to SWRCB: Imperial IrrigationDistrict v. SWRCB. SWRCB has administrative authority to require pre-1914appropriators to use water reasonably.

1988 -Federal Riparian rights: Hallet Creek Adjudication. Forest Service has riparian rightsunder State law on reserved lands.

1991 -Instream use allowed under State Water Law: Section 1701 California Water Code.The holder of an existing appropriative, riparian or other water right to petition theSWRCB for a change of purpose of use of water to preserve or enhance wetlandshabitat, fish and wildlife resources or recreation inion the water.

Grandfather permits for water uses in effect prior to reserve rights: USC 661.Statutory right of way for permits if transmission works to water still in operationfrom construction that preceded reservation (assume not lost right due to non-use,must have evidence of continuous use).

Permitted and Licensed Activities: Miners and FERC license/permittee rights arenot same as Federal riparian right, must apply for state appropriative right.

Instream Recreational and Aesthetic Uses: Elsinore v. Temescal (1939) and LosAngeles v. Aitken (1935). Riparians are allowed to divert water from the source ormaintain minimum water levels for instream recreational and aesthetic purposes.

PUBLIC TRUST

With its roots in Roman law, the doctrine of public trust holds that certain resources are theproperty of all. In its modem form, the public trust doctrine holds that a state, as sovereign, takestitle to tidelands and the beds of nontidal navigable waters at the time the state is admitted to theUnion. Holding these lands and the waters above them in bust, the state's duty is to exercisecontinued supervision over the trust for the benefit of the people. Entities acquiring rights, forexample in navigable streams, lakes, marshlands and tidelands, generally hold those rightssubject to the trust and can assert no vested right in a manner harmful to the public trust. In otherwords, rights acquired in public trust resources cannot be placed entirely beyond the directionand control of the state.

The scope of the public trust doctrine continues to evolve as popular perceptions of the valuesand uses of waterways change. The public trust was traditionally defined to protect navigation,commerce, and fisheries; but recently it has been held to include the right to fish, hunt, bathe,swim, boat, recreate, navigate, and use the bottom of navigable waters for anchoring, standing, orother purposes.

On February 17, 1983, the California Supreme Court filed its decision in National AudubonSociety v. Superior Court of Alpine County, 33 Cal. 3d 419, 189 Cal. Rptr. 346 (1983). TheCourt merged the public trust doctrine with the California water rights system. The Court alsoheld that all uses of water, including public trust uses, must conform to the standard ofreasonable use. The Court further held that the SWRCB has a duty to consider public trust valuesbefore it approves water right applications. Finally, the Court held that the SWRCB has acontinuing duty to supervise the taking and use of appropriated water.

Regardless of the nature of the water right in question, two very important principles will alwaysapply. First, under the California Constitution, water must be put to reasonable and beneficialuse. No water right grants any party the right to waste or make unreasonable use of water, andany water right can be curtailed or revoked if it is determined that the holder of that right hasengaged in a wasteful or unreasonable use of water.

Second, no 'Yater user in the State "owns" any water. Instead, a water right grants the holderthereof only the right to use water (called a "usufructuary right"). The owner of "legal title" toall water is the State in its capacity as a trustee for the benefit of the public. The so-called"public trust doctrine" requires the State, as a trustee, to manage its public trust resources(including water) so as to derive the maximum benefit for its citizenry. The benefits to beconsidered and balanced include economic, recreational, aesthetic and environmental; if at anytime the trustee determines that a use of water other than the then current use would better servethe public trust, the State has the power and the obligation to reallocate that water in accordancewith the public's interest. Even if the water at issue has been put to beneficial use (and reliedupon) for decades, it can be taken from one user in favor of another need or use. The public trustdoctrine therefore means that no water rights in California are truly "vested" in the traditionalsense of property rights.

In its presently-developed form, the public trust doctrine requires the courts and the SWRCB toperform a balancing test to weigh the potential value to society against the impact on trustresources of a proposed or existing diversion. The action which will feasibly protect public trustvalues must be implemented.

WHAT COULD POSSIBLY GO WRONG??

Can anybodyname three ofthe five typesof water rightsrecognized bythe State ofCalifornia?

POP".,•QUiZ

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California Water Rights

California recognizes five types ofwater rights:-riparian,-overlying (groundwater),-prescriptive,-pueblo,- appropriative.

Federal and StateJurisdiction over Terms

and Conditions forWater Use on National

Forest Lands

NFS OBJECTIVES

To manage National Forest Systemsurface and ground water resource toensure adequate supplies of sufficientquality are secured and maintainedunder Federal and State laws to meetNational Forest System purposes andresource needs before making excesswater available to private parties fortheir uses.

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NFS POLICYTo protect and manage water rights and usesintegral to the workings of National Forestresource functions and activitiesmanagement.

To recognize the role ofthe states inadministering water rights and the validity ofprivate property rights of individuals.

3RD PARTY OWNERSHIP: FSMANUAL DIRECTION

• Current direction requireswater rights to be owned by theUnited States when the water isdiverted from NFS lands andused on NFS lands for apermitted purpose.

NATIONAL EXCEPTION: SKIAREAS

• Water rightownership policyis now jointownership within "permit boundariefor limitedconditions. SeeJune 21, 2004letter.

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Right to OccupancyPossession of a state water rightdoes not grant the right to occupyor transfer water across NationalForest land, or grant an absoluteright to special use permit tooccupy or transfer water acrossNational Forest land.

Legal Right to WaterIn California permission of thelandowner is required before anappropriator can go on that land anddivert water. Without a special usepermit, the State will not issue a waterright (Section 775, Title 23, CaliforniaCode of Regulations).

Legal Right to WaterA water right, although a propertyright, is not considered ownership ofwater.

In California a legally valid state waterright cannot be established without aspecial use permit to transmit thatwater (Section 776, Title 23, CaliforniaCode of Regulations)

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Legal Right to WaterIn California, a legally valid statewater right cannot be maintained ifthe special use permit for aprivately-held water right isterminated. Without a special usepermit, the permittee cannotexercise the water right, and it willbe terminated by the state after 5years of non-use (Section 850, Title23, California Code of Regulations)

Where the Forest Service holds a waterright, other than a Federal reservedwater right, on a stream, spring orwell, and has determined that there is aportion of the water under this waterright potentially available for use bythe applicant, the Forest Service mayauthorize use of that portion underState law and set any other conditionsin the authorization needed to protectNational Forest resources.

QUESTIONS

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