The laws applying to groundwater that percolates are of much greater interest because virtually all groundwater moves

as dispersed flow. Five basic theories are used to allocate rights to withdraw percolated groundwater: 1. 2. 3. 4. 5. 6. The English Rule of Capture, or Absolute Ownership Rule. The American, or Reasonable Use Rule, Doctrine. The Restatement of the Law of Torts. Correlative Rights Appropriation. Combination

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Volume 3, Number 4

April, 2003

The
As a service to our readers, Greenspace has listed below some common water related terminology that you will be hearing in the months ahead. Water law is complex and in California, water rights law is magnified in complexity two-fold. We hope to write indepth articles about many of these types of water rights in future Insider issues. Riparian Water Rights There are many nuances to riparian water rights but generally riparian water rights are the right to the use of water as a result of the ownership of property that abuts a natural watercourse. This right gives the owner of a parcel of land contiguous to a watercourse the right to divert water for reasonable and beneficial use on that property. A riparian right is not gained by use, nor generally lost by disuse, but is part and parcel of the land. Appropriative Water Rights Again, there are many legal nuances to appropriative water rights. The courts have determined that there are pre-1914 rights and post-1914 rights. But generally, an appropriative right is the right to divert and use a specific quantity of water for reasonable, beneficial use in a specific location. Where there are more than one appropriative user in a defined watercourse the adage of first-in-time, first-in-right prevails. The first user has the senior right. Underground Water Rights Currently there are no regulations on groundwater extractions. Property owners with land overlying groundwater can simply drill wells and extract water. These users share the use of groundwater with other overlying users for reasonable, beneficial purposes, similar to riparian rights. Surplus water can be appropriated and used away from the overlying property, however. How this is accomplished is often left to the courts and the appeal process.
Source: California Water, Littlewood & Garner, Solano Press 1995

Insider
Statutory Adjudication Groundwater rights can be determined, and pumping limited, through court adjudications. A statutory procedure exists for adjudicating the rights of all claimants to the use of water in a stream system for both riparian and appropriative rights. The purpose of an adjudication process is to allow the State Water Board to make a determination of the rights to a stream system that includes streams, lakes, or other bodies of water and tributaries. A petitioner (e.g. the CCSD) can petition the courts and force landowners to hire legal council (whether they are financially able to or not) and legally challenge their water rights through the Superior Court. The court issues a decree establishing all rights to use of the water in the stream, the priority of the right, and the place of use. Any claimant who does not submit a proof of claim during the adjudication process is prevented from subsequently asserting rights, leading to a forfeiture of rights not reflected in the courts decree. Prescriptive Water Rights A prescriptive water right is a permanent right to use water acquired when the essential elements for adverse use are met. Top obtain a prescriptive water right in California, the use of nonpublic water must be for a reasonable and beneficial purpose, open and notorious, adverse and hostile, continuous and uninterrupted for a period of five years exclusive and under claim of right. An adverse user may acquire all or part of an existing water right, but need not prescribe the entire flow of a watercourse to gain title. We hope the above definitions will result in the citizenry of our area to ask questions of their elected representatives and learn more about water procedures and legalities. The best way to protect your water resources is to be educated about the issues and practice sound watershed practices.

WATER RIGHTS - What Are They Talking About?