Understanding Water Rights, Appropriation, and Use

A water right is a legal entitlement authorizing water to be diverted from a specified source and put to beneficial, non-wasteful use. Water rights are property rights, but those who hold these rights do not own the water itself--they only possess the right to use it. The exercise of some water rights requires a permit or license from the California Water Resources Control Board, whose objective is to ensure that the state's waters are put to the best possible use and that the public interest is served.

 In making its decisions, the state water board targets three main areas:

• developing water resources in an orderly manner;
• preventing waste and unreasonable use of water; and
• protecting the environment.

The state board's duties are not limited to permits and licenses. It may be called upon to adjudicate water for entire systems or to act as a 'referee" or fact-finder in court cases involving water rights.

Water Right Law
Water rights in California and other Western states are markedly different from the laws governing water use in the Eastern U.S. Water right law has developed into a unique blend of two different kinds of rights, riparian (owning land adjacent to a water source and appropriative (being the first to claim water rights). Other rights exist in California as well, among them prescriptive (openly taking water to which someone else has the right) and pueblo (a municipal right based on Spanish and Mexican law).

Learn more about History of Water Right Law.

Ground Water Rights
The 'reasonable use' provision, resulting from the same 1903 law that governs other types of water rights, also applies to ground water. Previously, the English system of unregulated pumping of ground water dominated, but was inappropriate in California's semi-arid climate. Later court decisions established that ground water may be appropriated, although appropriators' rights are subordinate to those with overlying rights, and no permit process exists.

California ground water law is complicated because of the variety of ground water rights recognized in the state. In 1914, California created a water right permit process governing the appropriation of surface water and subterranean streams. Appropriations of subterranean streams require a permit from the state Water Resources Control Board. The method for appropriating percolating ground water is to simply pump the water and put it to reasonable beneficial use. No state permit is required.

Statutory adjudication is a process that determines all water rights in a stream system. This can happen if a claimant petitions the state water board for an adjudication and the board finds the action necessary and in the public interest. The California Supreme Court has held that claimants or petitioners can include water users and those seeking recognition of public trust values on a stream-wide basis.

After granting the petition, the state board staff investigates the matter and issues a report that includes a Draft Order of Determination. A hearing is then held on objections to the draft report, after which the State Board adopts a Final Order of Determination and files it with the appropriate Superior Court. Objections to the final order are heard in a court hearing and the court determines their merits. The final step is a court decree that determines all water rights within the disputed system.

The state water board also may be called upon to act as a "referee" in water right conflicts, either recommending a decision on the entire case in dispute or answering questions of physical fact. State board staff carefully study the matter, then issue a draft report to which the interested parties may file objections. A hearing on these objections is authorized but is not required by law. The report becomes evidence, but the court is also required to hear any other evidence offered in rebuttal.

Originally, the public trust was limited to commerce, navigation and fisheries, but over time the courts broadened the definition to include recreational and ecological values.

Balancing the potential value of a proposed or existing water diversion with the impact it may have on the public trust is difficult. After carefully weighing the issues and arriving at this determination, the state water board is charged with implementing the action that would protect the public trust. As with all the other pieces of the California water puzzle, allocating the limited resource fairly and impartially among many competing users represents one of the board's greatest challenges.

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Frequently Asked Questions (FAQs)

1. What types of activities involving water quality are regulated?
	Direct Discharge into surface waters, streams, lakes, rivers or ocean from any activity are regulated by volume and quality of discharge.  Wastewater disposal into a municipal treatment system or individual septic system is regulated to protect surface and ground water from contamination and public health problems. Runoff from businesses or farms also pollute waters, even if the runoff doesn't enter a stream at a single point. Separate programs exist to manage non-point sources. Activities in and next to waterways, such as dredging or fill operations, can affect water quality by disturbing habitat, creating silt, or changing water temperature. Hazardous materials and waste are closely regulated to prevent contamination of surface or ground water.
2. Who regulates water quality and its use?
	Water quality issues involving discharges to state waters are the responsibility of: State Water Resources Control Board (SWRCB) Regional Water Quality Control Boards (RWQCB) These two agencies administer almost all federal and state water quality programs and standards that are primarily based on either the Federal Clean Water Act or the California Porter Cologne Water Quality Act. Sonoma County is divided between two RWQCB areas and either of these agencies can tell you which agency has jurisdiction at your location: North Coast Regional Water Quality Control Board (NCRWQCB) General area covered: Russian River drainage basin and coastal areas San Francisco Bay Area Regional Water Quality Control Board (SFBRWQCB) General area covered: Petaluma and Sonoma Valleys The California Department of Fish and Game has extensive jurisdiction over activities in or alongside waterways, based on protection of habitat and species. Some other state agencies may also have jurisdiction based upon specific project location, such as areas around San Pablo Bay or in some streambeds. Local jurisdictions are the primary agencies responsible for regulation of disposal into municipal wastewater treatment systems and disposal in septic or other ground disposal systems. Some jurisdictions have adopted local ordinances controlling either site erosion or disturbance of local waterways.
3. What are the basic types of water quality permits and who issues them?
	Two basic permit types are issued by the Regional Water Quality Control Board for Sonoma County locations. Many of the requirements are similar for the two permits except where noted (see below). The National Pollutant Discharge Elimination System (NPDES) permit structure controls all discharges from a single point into surface waters. The NPDES permit is required for all public and private discharges and sets the conditions for volume, timing, pre-treatment, characteristics and quality, among others. The waste discharge requirement structure controls all discharges that directly or indirectly affect surface water or groundwater. Examples include: drainage from agricultural operations, landfills, logging operations, and mines; animal feedlots waste from construction or dredging operations food production and processing wastes manufacturing and refining operation wastes municipal and industrial wastes if percolation or injection to groundwater are the disposal methods residual waste and effluent from cleanup of sites.
4. If my project doesn't involve any those activities listed in #3, is it exempt from water quality regulations?
	Many activities can affect water quality without any direct discharge to a waterway. Think and ask questions before doing any work at your site to save time, penalty fees, or prevent litigation and complications that may result from trying to obtain permits after the work has been completed. For example, the following are some activities that frequently require a permit and/or are restricted under water quality or water resource laws. Bank stabilization and erosion control in a waterway Adding or removing riparian trees or vegetation adjacent to a waterway Work in an historic or existing wetland, marsh, or vernal pool. Remove water from a creek or stream by direct diversion or well Commercial or industrial discharges to wastewater treatment systems Dredging or filling in or adjacent to a waterway or wetland Timber harvesting in a watershed Construction and grading that may affect erosion or stormwater runoff Gravel mining or dredging in or adjacent to a waterway Use of agricultural chemicals that may move into surface or groundwaters.
5. What are the exceptions to the normal water quality and discharge regulations and permit procedures?
	Most owners or operators of facilities that discharge waste into a municipal sanitary sewer system do not need to obtain an NPDES permit. However, some industries are required to treat waste before it is discharged to a municipal sanitary sewer system by the United States Environmental Protection Agency (USEPA), the SWRCB, and the respective RWQCB or local wastewater management agency. The local agency advises industries of what requirements govern their property. Stormwater runoff is regulated through two parallel programs that address runoff from urban areas, manufacturing operations and construction sites. Contact the RWQCB to determine if you need to apply and to which agency. For more information, see: Construction Storm Water Filings and Permits Industrial Storm Water Filings and Permits. Hazardous materials and hazardous waste regulation is typically delegated to local agencies to carry out state mandates and permitting systems. These regulations change rapidly. For the most current requirements, contact the RWQCB or the County Office of Emergency Services.
6. Do I have to pay any fees to get these permits?
	When you submit your permit application to RWQCB a fee is required which serves as the first annual fee. After you receive your permit, you pay an annual fee to the SWRCB. The RWQCB determines how much the initial fee is and the amount to be paid annually. A "rating" system is used to determine fees and the criteria is based on the extent of the threat to water quality.
7. What happens if any of these regulations are violated?
	It is up to you to find out what regulations affect your property or business. If you violate or misrepresent the conditions that are covered by regulations, the SWRCB or the RWQCB may require: the discharge be discontinued assess civil liability up to $10,000 per day go to court and seek fines up to $25,000 per day for violations. go to court and seek fines up to $50,000 per day for intentional violations

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Water Right Permit Process

Permit Issuance
Water right permits carefully spell out the amount, condition and construction timetable for the proposed water project. Before issuing a permit, the State Water Resources Control Board takes into account all prior rights, availability of water in the basin, and considers the flows needed to preserve in-stream uses such as recreation and fish/wildlife habitat.

Records of water use and appropriation statewide are maintained by the state board's Division of Water Rights. Unauthorized appropriation of water is against the law and can result in court actions and fines. See below for Additional Duties.

To obtain a permit, follow these steps:

1. File an Application. The permit process is initiated when an application is filed by the person or agency desiring to divert water. This application very specifically describes the proposed project's source, place of use, purpose, point(s) of diversion and quantity to be diverted.
2. Acceptance of Application. The state board notifies the applicant within 30 days whether the application is incomplete or accepted. Acceptance establishes priority as of the date of filing.
3. Public Notice. The state board then publishes a notice of the applicant's intent and invites public comment. Copies of any protests are given to the applicant, who is required to respond.
4. Protest Resolution. The state board takes actions to resolve any protests that have been filed.
   • If both parties agree to mutually acceptable conditions, the protest is resolved at this point in the process.
   • If it is not resolved, the issue may be solved for small projects through an engineering field investigation report from the Division of Water Rights.
   • If it is appealed and for large projects, a formal hearing is held before one or more members of the state board. The state board's decision is based upon the record produced by the hearing.
5.  Permit Issuance. Two initial state board findings are required before a permit can be issued:
   1. Unappropriated water is available to supply the applicant
   2. The applicant's appropriation is in the public interest, an overriding concern in all state board decisions.
   3. The permit is then issued if the state board determines that the proposed use of water best meets these criteria. If the permit is not approved, see Conditions.
6. Licensing. When the project is finished, the terms of the permit are met and the largest volume of water permitted is put to beneficial use. The state board confirms the terms and conditions and issues a license to the appropriator. This license is the final confirmation of the water right and remains effective as long as its conditions are fulfilled and beneficial use continues.

Other conditions are placed on the permit, such as construction and water use completion dates. The permit applicant may petition for an extension.

Unlike riparian rights, appropriative rights are quantified as the maximum amount ultimately needed by the proposed project ("beneficial users") for as long as the project is deemed reasonable and diligently pursued. Any change in purpose or place of use or point of diversion requires state board approval. The proposed change cannot initiate a new right or injure any other water user.

Statutory adjudication is a process by which the comprehensive determination of all water rights in a stream system is made. This happens if a claimant petitions the state board for an adjudication and the board finds the action necessary and in the public interest. The California Supreme Court has held that claimants or petitioners can include not only water users but also those seeking recognition of public trust values on a streamwide basis.

Environmental Review: Consideration of environmental effects is required by the California Environmental Quality Act (CEQA) before a permit can be issued. Large projects that could endanger or degrade natural habitat or water quality usually require preparation of an Environmental Impact Report (EIR). The state board examines the proposed project's potential environmental impacts and determines whether conservation measures will be needed.

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Water Quality and Resource Regulations
Two basic water quality permits are issued by the Regional Water Quality Control Board (RWQCB) for your location. Many of the requirements are similar for the two permits.

Surface Water Quality PermitsThe National Pollutant Discharge Elimination System (NPDES) permit structure controls all discharges from a single point into surface waters. This permit is required of all public and private dischargers, and sets discharge conditions for volume, timing, pre-treatment, characteristics and quality, among others.

The Waste Discharge permit structure controls all discharges that may indirectly affect surface water quality or could affect groundwater quality. Examples include drainage from:

• Agricultural operations, landfills, logging operations, and mines
• Animal feedlots
• Waste from construction or dredging operations
• Food production and processing wastes
• Manufacturing and refining operation wastes
• Municipal and industrial wastes, if percolation or injection to groundwater are the disposal methods
• Residual waste and effluent from cleanup of sites

Other activities affecting water quality
Without any direct discharge to a waterway, many activities can affect water quality. Some actions can discharge solids, such as silt or debris, or stir up stream sediments because of work in or adjacent to a stream channel. Some activities that frequently require a permit and/or are restricted under water quality or resource laws are listed below.

• Bank stabilization and erosion control in a waterway
• Adding or removing riparian trees or vegetation adjacent to a waterway
• Work in an historic or existing wetland, marsh, or vernal pool.
• Removing water from a creek or stream by direct diversion or well
• Commercial or industrial discharges to wastewater treatment works
• Dredging, filling, or a location adjacent to a waterway or wetland
• Timber harvesting in a watershed
• Construction and grading that may increase erosion or stormwater runoff
• Gravel mining or dredging in or adjacent to a waterway
• Use of agricultural chemicals that may move into surface or groundwaters.

Before beginning work on your site, take the time to ascertain the regulations that may apply to the project and save yourself the cost of fines, litigation, and complications that may occur if you try to obtain permits after the fact.

Hazardous materials and hazardous waste regulation is typically delegated to local agencies that carry out state mandates and permitting systems. This area of regulation goes through rapid change. Keep up with current requirements, and contact your RWQCB or the County Off ice of Emergency Services if you are unsure.

Normal Procedures
All information submitted in an application (or technical report) is available to the public under California law unless the person submitting the information identifies trade secrets or proprietary information and justifies withholding information from the public.