Sanhedrin Ranch Water
From CFI
Eel river property water research by Cliff Paulin
I contacted Joe on March 28, 2006 to discuss the water situation on the Eel River Property. The following is a summary of that discussion.
WELLS: Before the Smith and Wests moved to the property a well had been dug, but was a dry hole. There is currently one functional well on the property. It is located approximately 30 feet from the concrete stock watering tank next to the road leading to the Smith residence. The well was dug approximately 4 years ago, and was sited in its current location on the advice of a water witch who searched the property and identified the location as the best place to drill. The well drillers estimated that it would produce about 7 gallons per minute, however actual flow rate is closer to 2 gallons per minute. The water is high in hydrogen sulfide (rotten egg smell) and would require ozone treatment to be useable. Joe and the well drillers (Weeks Drilling) thought that the current location was less than optimal for siting a well. They both thought that a more suitable location would be up the hill near the water tanks, as the soil profile there is rockier, while the current location is heavy clay.
SPRINGS: One spring is located near the northern most boundary of the property. It has never been utilized or developed. Flow rate is not known. Another spring is located below the double-wide. Due to the presence of pipes and other development activity, Joe estimates that the spring may have been utilized but never fully developed. It is currently not being utilized.
SURFACE WATER: The property is bounded on the south side by Mill Creek, a perennial stream, and on the west side by the Eel River. Mill Creek is currently the sole source of water for the property. There are two water systems feeding the property from that source. One is the main intake which is situated just upstream from the West home. This intake feeds both to the pump-house located near the shop and by gravity to the garden and to the Smith’s home. At the pump house the water is treated by a calcite filter and ultra-violet purification system to remove any sediment and bacteria. The water is then pumped up hill to the water tanks through a buried 4 inch pipe, where it is fed to the cabin, the doublewide, and the Smith and West homes for domestic consumption. The gravity fed water is untreated and is used for agriculture and fire protection. There are fire protection risers located near the shop (2.5” for CDF hook in), near the double wide (2”), near the Smiths (1.5”), and near the cabin (1.5”). The gravity system is drained in the winter so that the uninsulated pipes will not be damaged.
In addition there is a separate intake, located much further upstream on Peter Armstrong’s property (with permission) that feeds the micro hydro system. This intake also feeds 3 risers in front of the West home that are used for irrigation.
WATER RIGHTS ON THE PROPERTY: All water utilized on the property is taken under Riparian Rights. Water from Mill Creek has been continiously used under riparian right since the property has been inhabited. No appropritive right has ever been applied for or granted. Water from the Eel river has never been used on the property.
CALIFORNIA WATER RIGHTS GENERALLY:
Simply put a water right is a grant from the State to a party to put to use a given quantity of water. Water rights are required to appropriate any surface water of the state. A water right is a property right but it is different is significant ways from a traditional property right. Rather than giving a party exclusive ownership of a tangible item, a water right grants a party the right to use a given quantity of water. That water must be put to beneficial use (defined below) and can not be simply stored away like money in the bank.
California uses what is known as a “hybrid” system of water rights which utilizes both of the traditional means of administering water rights; riparian and appropriative. The important features and differences of these systems are outlined below.
Riparian rights
A riparian (touching water) right is the right to take and use water on that riparian land by virtue of that land crossing or abutting a body of surface water (lake, river, or stream).
California’s use of the riparian doctrine is not defined in any State Statute. Rather, the doctrine has come into force through a series of court decisions and was confirmed in the California State Constitution, section 3, Article XIV.
Parcels through which a river or stream flows or abuts have riparian rights if those rights are still attached to the land. A parcel of land loses its riparian right when severed from land bordering the stream by conveyance unless the right is reserved for the severed parcel. The riparian right also may be destroyed when purportedly transferred apart from the land by grant, contract, or condemnation. Once lost, a riparian right cannot be restored. Water taken under a claim of riparian right may be used only on riparian lands.1 Riparian water can be stored on site for 30 days or less (regulatory storage) without requiring an appropriative right to store.
While a property owner may have a riparian parcel they do not automatically have the right to remove whatever amount of water they wish. First, all riparian rights are correlative with the right of each other riparian owner. Correlative rights permit extraction of only a reasonable share of the natural flow of water. Natural flows do not include return flows derived from use of ground water, water seasonally stored and later released, or water diverted from another watershed. In addition appropriative claims to surface water can limit the availability of natural flow for riparian right holders.
State has placed administrative limits on new riparian rights. Because the state uses both riparian and appropriative rights, the SWRCB will only authorize new riparian claims if that authorization will not impact any existing riparian or prior appropriative claims. While this may appear unfair, the possibility of new riparian claims becoming active would threaten the value of appropriative rights.
No permit is required for riparian use; however diversions made under claim of riparian right are required to file a Statement of Water Diversion and Use with the SWRCB.2 It is this requirement that places riparian rights within the jurisdiction of the SWRCB.
Appropriative Rights:
Appropriative water rights are granted on the principle of, “First in time, first in right.” This system grants current users the license to apply an allocated amount of water to any piece of property as long the water is continued to be put to a beneficial use. Beneficial use are defined by regional water quality boards and traditionally cover municipal, domestic, and agricultural uses although more modern definitions of beneficial use cover broader uses such as protection of wildlife and other ecological functions. Failure to use water allocated in an appropriative right results in loss of the right.
Prior appropriation rights differ significantly from their riparian counterparts. Rather than vesting as a virtue of holding riparian property, appropriative rights are validated by continued beneficial use based upon seniority of use. Between riparian owners priority of use establishes no priority of right; i.e., one cannot claim superior right merely because water was used first. Between appropriative users, rights are classified by a system of seniority. As opposed to riparian rights in which all riparian user’s rights are correlative, the most senior appropriator is entitled to take her entire appropriation before the next most senior appropriator can successfully lay claim to her water right. Under this system there are years when a junior right holder may not be entitled to take any water, even though they hold a valid right. Second, riparian rights are neither created by use nor lost by nonuse. An appropriative right is secured only through the continuous and ongoing use of water and can be lost either through abandonment or non-use. Lastly, appropriative rights can be used to apply water to non-riparian lands, while riparian rights cannot be the justification for application of water to a non-riparian parcel of land.
California’s Hybrid System:
California’s use of both riparian and prior appropriation systems would seem to be incompatible. The largest concern is for holders of appropriative rights. Because prior appropriation rights are entitled to specified quantities of water only when water is available there is obvious concern that a new riparian owner could lay claim to water reducing the availability for prior appropriation rights. However this concern has been addressed by the SWRCB. While riparian owners do not have to obtain a license to divert water onto riparian property they are required to file a Statement to Divert and Use Water. This requirement places limitation on riparian rights when the exercise of such right would preclude a valid appropriative right.
Therefore under the California system any withdrawal of surface water requires approval from the SWRCB. Withdrawal of groundwater is not subject to this approval, unless again that groundwater is actually a “subterranean streams flowing through known and definite channels.” These subterranean streams are usually those subsurface waters located in alluvial sediment near rivers.
1 Rancho Santa Marqarita v. Vail, 11 Cal. 2d 501, 81 P. 2d 533
2 CWC §5101
