I recently attended a forum on the
idea of a Scott River “Water Trust.” The speaker was a Sacramento lawyer named
Robert Donlan. The forum was sponsored by the Scott River Watershed Council (SRWC) and the
Siskiyou Resource Conservation District (RCD.) The presentation pertained only to the Scott
River system and its water rights “adjudication” – not to the Shasta. The
Water Trust concept did not look at groundwater.
For many years, Scott Valley locals have been trying to figure out
how water can be legally purchased or leased to benefit fish. Sometimes a small amount of
additional high quality cold water can help re-hydrate streams to help coho juveniles in
the summer or to eliminate barriers to adult fish migration in the fall. As past volunteer
water efforts have proven, there are farmers who are willing to help fish. The Water Trust
would institutionalize that effort, paying the donors a price for the water, while
protecting the rights and use of downstream users.
Donlan said that the Scott River Water Adjudication provides a good
roadmap for a workable Water Trust. The adjudication was a process that looked at all the uses
of surface water in the Scott River system, (including a small band of “interconnected” ground water 500 ft. or
less from the river.) The process: (1) separated areas of the river and its tributaries
into independent reaches; (2) recognized the “beneficial uses” of the water,
(such as domestic, irrigation, stock watering, power, ) (3) quantified the water rights
claimed, (4) established points where water was diverted, and (5) ranked all the water use
rights by priority of use.
The Superior Court of Siskiyou County published its adjudication as a Court decree in 1980,
complete with “schedules” for each reach detailing all recognized rights to
surface water use. The Superior Court has retained jurisdiction over the adjudication. In
1989, the State Water Resources Control Board (SWRCB) issued an order declaring streams in
Scott
Valley now "fully appropriated" during the period
4/1-11/30 of each year.
Donlan discussed the various options that owners might have
in donating, leasing or selling their right to use water. The “forbearance”
agreement is when the user agrees not to divert his water. This does not require Superior
Court approval or SWRCB approval. Donlan remarked that it is an agreement that could be
difficult to police or enforce. It is best used when the water use right is a
“riparian” right, (parcel adjacent to the river or stream,) as this type of
right “runs with the land” and is never lost. It can be a risky agreement for an
appropriative right, (one that brings water by
ditch to parcels away from the river,) as this type of right can be lost if not put to
continuous beneficial use within a five year period.
The State Water Code Section 1707 allows a water use right
owner to petition the SWRCB to change the beneficial use of
a right to include “instream flow.” The petition must state the
time period, location and scope of the change. The change cannot expand the users right or
injure other legal users. (An injury could occur when a downriver user’s right and
water availability is affected. It is usually up to those downriver users to complain of
potential injury at the time of petition.)
Water Code section 1425 authorizes “temporary urgency
changes” for a limited amount of time.
Water Code section 1700 authorizes permanent or long-term
changes in a water use right for purpose of use or point of diversion. This protects an
appropriative right dedicated to instream use from loss due to nonuse. A user can petition
for change under a long term contract, (like 20 years,) and when that contract is up
revert back to prior type of use. The user must be careful that any ditch easements over
other’s property have been secured by title or they may lose an unsecured
prescriptive ditch easement from non-use. The no injury to other users rule applies.
Water Code section 1725 authorizes temporary transfer or
change of water use rights for a period of one year or less. No CEQA process is required. The petitioner must
demonstrate that he/she is transferring only the amount that would have been consumed
otherwise. (For irrigators, this is generally the amount consumed by evapotranspiration or
deep percolation into the aquifer.)
Water Code 1735 allows for transfer of a water use right on
a long term basis from one water user to another.
In exploring the Water Trust idea, the Siskiyou RCD is
looking at a possible joint petition process, presenting a package that would involve
several users. Once the petition is granted, changes would most likely be made to the
adjudication through a supplemental decree confirming the action of the SWRCB. (It would
be undesirable to modify fundamental aspects of the decree, such as the blanket addition
of instream flows as a beneficial use, as this would reopen the whole adjudication to
challenge.)
The RCD would be interested in water use rights that are
currently actively used and that would provide quality water to specific locations.
Agreements would only cover transfer of the water use right to instream flows from point
of diversion to the next downstream water user. So diverters affecting long stretches of
river would be desirable. Because of community concerns and possible injury to other
users, no attempt would be made under the RCD program to “shepherd” the water
past other diverters down a stream. (Note, others are attempting to buy land or easements
to do exactly this.) It is hoped that a
multi-million dollar endowment fund could be established allowing the Water Bank to
operate off the interest. There will be future opportunity to explore this idea and
community concerns.
The California Water
Code is located online at http://www.leginfo.ca.gov/calaw.html |
