PUB00020

• Year: 2000
• Title: Layperson's Guide to Water Marketing
• CWCB Section: Interstate & Federal
• Author: California Water Education Foundation
• Description: Layperson's Guide to Water Marketing
• Publications - Doc Type: Other

WATER RIGHTS AND TRANSFERS

California's water rights laws are complex and
marketing proponents say they tend to discourage
water transfers. Others contend such laws are safe.
guards to block inappropriate transfers. Ownership
of water is separate from the use of water. Under
state law, water is the public property of the people
of the state. It also is considered a public resource.
Thus, the state has a continuing duty to protect its

The l'ust majority ofw(l[er
rights are appmpriaril'c
rights. which initially were
den>/oped by gold miners.
Appmpriatil'c rights are
Illlrelared 10 riparian land
0l\'11ership and are hosed
on the principle of ':first in
rime. first ;11 right."

6

people under the public trust doctrine (among other
theories) - a doctrine which has its foots in Roman
Law and is merged with the state's water rights sys-
tem.ln contrast, the right to use water can be claimed
by individuals and entities, which include water dis-
tricts and the state and federal governments.

The state Constitution requires all claimants' use of
water be reasonable and beneficial. "Beneficial" uses
include irrigation, municipal, domestic, industrial,
recreational use, protection of fish, wildlife and their
habitat, and aesthetic enjoyment. "Reasonable" use,
on the other hand, is not as tangible because it
depends on the particular circumstances of the case,
which may change over time. Legal scholars have
characterized water rights as "vague" and "fugitive"
and ownership of the right as "qualified."

The state has a dual system of water rights: riparian
and appropriative. Riparian rights are based on
ownership of land adjacent to a stream or river and
account for about 10 percent of the rights to use

suriace water in California. In general, riparian rights
are not lost if unused or unquantified. Riparian rights
are generally not transferable to other water users,
but riparian rights can be dedicated to environmental
purposes and instream beneficial uses.

The vast majority of water rights are appropriative
rights, the concept for which were initially developed
by gold miners. Appropriative rights are unrelated to
riparian land ownership and are based on the
principle of "first in time, first in right." The first to
claim and beneficially use a specific amount of water
has a claim superior to subsequent appropriators.
The appropriator's right depends on continued use
and can be lost if not used. Appropriations made
aher 1914 fall under the authority of the California
State Water Resources Control Board (State Board).
(Water appropriated prior to 1914 generally is exempt
from State Board regulation.) The board's permits
may contain binding terms and conditions to protect
other water rights holders or the public interest. A
permit can be revoked if its conditions are violated.
Both the CVP and SWP are appropriative rights
holders and permitees of the State Board.

Pre.1914 water rights holders are granted more
liberties than post.1 914 water rights holders and may
change place of use, purpose of use, or points of
diversion for the purpose of transferring water with-
out approval of the State Board. Post-1914 water
rights holders must have their applications for water
transfers approved by the State Board. However, both
pre.1914 (through the courts) and post.1914
(through the State Board) water rights holders must
ensure other water users and the environment are
not injured by a transfer. This "no injury" rule, related
to changes in water rights, can affect the amount of
water available for transfer and dates back to the
1850s. To ease concern that a transfer could jeopar-
dize an appropriator's water right, legislation was
passed in 1980 specifying that transfers are not
considered a non-use or abandonment of the right.
Since 1990, the State Board has approved over 2
million acre-feet of short-term water transfer propos-
als throughout the state.

With the Owens Valley providing a reminder of an
unrestrained interbasin transfer, area-of-origin stat-
utes designed to protect counties and watersheds
where the water originates from the export of water
outside the region were passed. Area.of-origin laws
help define "injury" caused by water transters. How-