Russian and Eel River Advocates Gather to Set the Rules of Engagement

Thanks for publishing this. I’d like to provide some clarifications. In doing so, I want to emphasize that although I am the former Deputy Director for Water Rights at the State Water Board, I’m retired and speaking for myself, not the Water Board, and I’m a Civil Engineer and not an attorney.

Things like the public trust, the Endangered Species Act and the Wild and Scenic Rivers Act are better characterized as restrictions on the exercise of a water right than as a water right itself. That is because although things like fisheries and river navigation require water, in California you have to take control of the water to acquire a water right. You cannot get a water right for an instream use except by transferring an existing right under Section 1707 of the Water Code.

Similarly, those types of uses are not a federal “reservation” either. Federal reserved rights are applicable on federal lands that have been set aside (aka “reserved”) for specific uses. Typically these include tribal reservations, forestry reservations, and military reservations. The reserved right allows for the use of water for the primary purpose of the reservation (eg, growing trees as an agricultural commodity is the primary purpose of a forestry reservation, but camping is not; the Forest Service typically acquired an appropriative water right permit from the state for its campgrounds).

Instream uses are best thought of as a limit kn the amount of water available for diversion and use by riparians and appropriators. In the case of the Wild and Scenic River Act, there are also restrictions on the construction of diversion facilities unless waived by the Secretary of the California Department of Water Resources.

There are two types of water right adjudications for surface waters. The first is referred to as a “Statutory Adjudication” (though the procedures for both types are in statute). A statutory adjudication is a process to quantify all rights to water on a stream or on a specified reach of a stream. It is binding on water users on the stream. Under the process the State Water Board conducts an investigation to determine the use of water from the stream by all of those claiming a water right. The Board prepares a report called an “Order of Determination,” which it submits to the local Superior Court. The Court will provide notice of its consideration of the report, and after an opportunity for hearing of any objections by affected parties, will issue a judgment that confirms each valid water right claim, quantifying each right, and setting relative priorities among all the users. The last decree of this type in California was issued in 1992 in San Mateo County. The biggest impediment to these types of proceedings is resources. They’re resource intensive, and the water right claimants are obligated to pay for the State Water Board’s reasonable costs in conducting the adjudication.

The other type is called a court referenced adjudication. Those are initiated by private litigation. A judge can refer the matter to the State Water Board for findings of fact or findings of law, or both. The Board jnvestigates and prepared a “Report of Referee” for the Court. The court holds a hearing and issues a decree. The decree is only binding on the parties to the litigation, not to every claimant. Again, the parties to the litigation are responsible for the Board’s costs, and the Board can refuse the reference if provisions for paying for those costs are not in place in advance of the investigation.

Many western states conduct water right adjudications. They get trickier when the federal government is one of the claimants due to federal sovereignty issues. California conducted several statutory adjudications in the period immediately following the proposal and permitting of the Central Valley and State Water Projects (the 1920s/30s and the 1960s/70s). California parties have attempted to do a hybrid of the two types in which one party sues everyone else who takes water from a stream in order to bind everybody (example: Putah Creek in Solano County). The disadvantage of that as compared to a statutory adjudication is that under a statutory adjudication you can do things like subject dormant (aka unexercised) riparian rights to existing diversions and use. That’s because the goal of a statutory adjudication (and one of the benefits to the parties) is certainty.

As for the 10,000 and 8,000 acre-ft “reservations” for Sonoma and Mendocino Counties on the Russian River, those exist because at the time the State Water Board’s predecessor was deciding whether to grant consumptive water right permit to local water agencies for Lake Mendocino and Lake Sonoma (which were constructed as flood control and not water supply projects), the Board desired to set aside water that had been used by local users regardless of whether that use was legal at the time. The water availability analysis for Sonoma County’s water right permit applications depended on a report that was prepared in 1949 and included an accounting of all then-existing water users on the system.

The Board concluded that the existing and future use of water by non-district users in the two counties would be 10,000 and 8,000 acre feet. Whereas normally any illegal user of water in 1949 who applied for a water right permit after Sonoma County Water Agency would have gotten a water right with a priority if the date of his/her/its own water right permit application, the set aside (reservation) allowed those applicants to acquire a permit for a right senior in priority to the District’s water right permit. It was essentially a “gimme” in recognition that SCWA would be exporting water out of the Russian River watershed. Initially the Board’s order approving SCWA’s application included a deadline by which other pre-1949 unpermitted appropriators were to have filed water right applications in order to get the priority, in subsequent Boards, that deadline was extended and then removed. The Water Board had made similar reservations in the Central Valley in order to preserve water for local water users under then-existing area of origin laws. “Pre-1949 rights” are only applicable to the Russian River, although the Board has used similar concepts in other watersheds (eg., on the Carmel River a similar provision was made for “Table 13” water users, so designated because they were listed in Table 13 of the Water Board’s decision on a reservoir permit application upstream on the Carmel River). That said, if you are a post-1914 appropriator on the Russian River whose use started prior to 1949 and you do not have a water right permit, you are an illegal water user unless you obtain your water under contract with a legal water user consistent with that water right holder’s permitted place and purpose of use.

This kind of a “reservation” should not be confused with a “federal reserved water right.” They are two entirely different and unrelated things.