Water Rights: the Basics
What are water rights?
Water rights are entitlements to use water. Unlike land rights – which have clearly defined boundaries – California water rights are a hybrid system of entitlements and prerogatives that is still evolving. Under California law, water is the property of the people and is subject to the public trust doctrine: the final arbiter of its use and distribution.
Who has water rights?
In most – but not all – cases, land ownership determines water rights. There is no such thing as ownership of water, only the “right” to use it reasonably and for beneficial purposes.
The California State Water Resources Control Board (SWRCB) regulates surface water rights by licensing the diversion of water from streams, rivers, and lakes. Groundwater is regulated under the Sustainable Groundwater Management Act of 2014 (SGMA), which requires groundwater basins to be managed in a sustainable manner.
The California Department of Water Resources (DWR) oversees local agencies that develop groundwater sustainability plans throughout California. The State Water Resources Control Board may take over management of a basin if sustainability is not achieved. But SGMA has not fully addressed the nuances and tensions of the state’s groundwater issues, and disputes over groundwater quantification and rights are numerous.
Types of water rights
Riparian rights
Owners of properties that border a stream, river, or lake are entitled to use of that water. The land contiguous to these bodies of water is considered “riparian land.” Riparian water can’t be transported to another watershed or to another land parcel that is not riparian. Riparian water rights are not lost with nonuse, and the water must be shared with other riparian rights parcel owners.
Appropriative rights
California water law allows surface water to be diverted at one point and used (appropriated) beneficially at a separate point. This contrasts with a riparian right, which is based on ownership of the property adjacent to the water. An appropriative right is based on physical control, beneficial use, and if initiated after 1914, on a permit or license from the SWRCB.
Appropriative rights may attach to surface water that exceeds superior riparian claims, and to “surplus” groundwater. The rights depend upon continued use and may be lost by nonuse; they may be sold or transferred within the community. Unlike riparian rights, long-term storage of water is considered an acceptable exercise of an appropriative right.
Prescriptive rightsA prescriptive right to water is similar to a squatter’s right to land. It’s acquired through a process known as “adverse possession” – which means using something absent a legal right for a "prescriptive” period of time. (In California it's five years). Prescriptive rights are difficult to obtain, and since 1914, the courts have confirmed that the only way to acquire a new water right is to obtain a permit from the State Water Resources Control Board.
Groundwater rightsGroundwater use has been unregulated through most of California’s history. That changed with the 2014 SGMA; judicial rulings in recent years also have subjected some new wells to California Environmental Quality Act (CEQA) review.
Under current law, overlying property owners are entitled to the water under their land. Appropriators who take “surplus” groundwater outside a given basin to use on non-overlying property are considered “junior” rights claimants.
If there is insufficient water to meet the needs of the overlying users, the junior appropriators lose their rights altogether, and the remaining water is distributed proportionally among the overlying users.
Though SGMA has brought some regulation to bear on groundwater use, it has by no means resolved all associated issues. One example: the intersection of groundwater with surface water has not been adequately investigated, and it’s not clear how this dynamic will affect water rights.