STATE WATER BOARD: Riparian and pre-1914 water rights in the Delta

State Water Board staff use information gleaned from 2015 informational order to compile the first taxonomy of senior water rights in the Delta

At the peak of the drought in February of 2015, the State Water Resources Control Board’s Division of Water Rights issued an informational order to 445 water right claimants in the Delta and its tributaries that required both riparian and pre-1914 claimants to submit information detailing the basis of their right to divert, point of diversion, and place of use for each claim, as well as the volume of diversions by month.  In total, the informational order requested information from 1,061 claims of water rights.  The information obtained as a result was critical in managing the state’s water supply during the drought as the Division of Water Rights relied on the data received to clarify anticipated supply and demand for water and to help refine the their water availability analyses.

State Water Board staff recently released the additional information obtained from the respondents on the basis of their water right claims, including a spreadsheet summarizing the results of the Division’s review of responses by recipients of the order.  At the February 20th meeting of the State Water Board, Erik Ekdahl, Deputy Director of the Division of Water Rights, and Michael George, Delta Watermaster, updated the board members on the findings and the recent release of the additional material.

Erk Ekdahl began with the background on the need for the information order.  In the spring of 2015, the snowpack was just 5% of historic average.  Researchers at Stanford using tree ring and modeling data have estimated that the spring extent of the snowpack in 2015 was probably the lowest in at least 500 years with the period between 2013 and 2015 being the driest three year period in about 1300 years, he said.  The drought peaked in 2015, and even though 2016 was a better water year, the state remained in drought, just trying to make up that deficit for the last couple of years that preceded it.

This is important for the Division and the Board in general because we’re responsible for managing the water rights and the beneficial use of those water rights and the way that we do that is by looking at supply and demand,” said Mr. Ekdahl, explaining that they use the information they have to estimate the water available and issue notices of unavailability.

The main issue that we were running into in 2015 was the lack of high quality data.  Prior to the passage of SB 88, the data that we had came in every three years, so the data we relied on in 2015 was from 2011, and even the data that was submitted then may not have been very high quality, so we were in the position we where we had very, very low water supplies and not enough real data to tell us how to correctly administer the water rights system that we have.”

The Board issued the informational order in February of 2015 which applied to riparian and pre-1914 statement filers in the Delta and its watershed; it only applied to riparian and pre-1914 statement filers as the Board has better information for other appropriative post-1914 users, he said.  The order was distributed to 445 recipients representing 1061 claims of right which represents the top 90% of reported senior water use in the Delta watershed and its tributaries.

The order requested information on the volume of diversions per month, the basis of right to divert, and the point of diversion and place of use for each claim, as well as documents that support the claimed water right to be submitted within 30 days of the receipt of the information order.

He displayed a series of maps showing the diverters that the information order applied to, noting that there are a lot more riparian and pre-1914 diverters within the Delta than in the Sacramento and San Joaquin basins.

The staff reviewed the information for the claim of water right, looking for whether or not there was information to support the claim.  “One of the issues that we see when trying to determine the water availability analysis is if you say you have a pre-1914 right and conceptually if the board moved in to say that you didn’t have water available for diversion under that right, could you just then flip over to a riparian right and how would that affect our water availability analysis and the modeling that we had to do,” Mr. Ekdahl said.

To illustrate the the difference between riparian and appropriative water rights, he presented a conceptual drawing.  He noted that if a land parcel touches the waterway and the landowner diverts water from the waterway and uses it on the parcel that touches the waterway, that’s a riparian right; if the water is used in a parcel that doesn’t touch the waterway, in general that’s an appropriate right.  There are nuances, he acknowledged.

The informational order requested “all documentation supporting the type of water right claimed.” For riparian rights, the Informational Order called for information related to the “property patent date and patent map.” For pre-1914 appropriative rights, the Information
al Order sought “a copy of [the] notice [of appropriation] filed with the county, copy of property  deed and all other information…pertaining to initial diversion and continued beneficial use of water. Mr. Ekdahl then presented some examples of materials that were submitted, noting many historical documents were received with some documents extending well back into the 1800s.

State Water Board staff examined the documents as well as spent time looking for additional information to supplement the submitted materials; this process has taken about two years of analysis, and recently, a spreadsheet was released to stakeholders that summarized their findings.

Delta Watermaster Michael George said that staff then separated the information received into four categories:

  • Category 1: Responses that do not provide information supporting all the elements of the claimed water right.
  • Category 2: Responses that provide information supporting many, but not all, of the elements of the claimed water right.
  • Category 3: Responses that provide information supporting each of the elements of the claimed water right.
  • Category 4: Responses that indicate an alternative basis of right to divert water (usually a water supply contract) in addition to the underlying right.

Mr. George presented a table showing the results of the analysis (below).  “What we were trying to do is take all of the 1061 water rights that we asked for information on, broadly categorize them as whether they claimed riparian or pre-1914, or as you see here, mostly both, and then we broke them down.”

Mr. George pointed out that those that fell into category 4 have water supply contracts that act as a wrap-around, so even where there might be a weakness in some of the documentation for the underlying water rights, that doesn’t mean that there was an unlawful diversion or that there’s any reason to do a lot more analysis.

He then gave the general findings.  “First of all, most diverters submitted documents providing substantial support for at least one of their claims, and actually one claim is all you need.  The notion of stacking water rights is a problem for all of us.  It’s also a problem in our historic documentation, as the data we were working with in 2015, where we had duplicate reporting, the same water was reported twice under two different water rights, basically doubling what apparently was the demand.   That’s a problem because that means that you’re providing for demand by cutting off juniors to support that demand, when that demand has already been met by another water right.  But it is important to note that most diverters throughout the watershed provided some substantial documentation for at least one right.”

Mr. George said it’s important to note the value of the additional materials.  “We believe we have patents from the entire watershed that we’ve never had a reason or a way to get.  Many of those came in from the responses, but staff dug out the other ones, either through the State Lands Commission or other sources.  And importantly, that information is now available to the whole water community to fill in some blanks.”

He also noted that many diverters claimed both riparian and pre-1914 appropriative rights.  “Over time, we’re going to have to sort out, because there were a lot of the claims where it was impossible to differentiate between the riparian and the pre-1914 right,” he said.  “So in terms of trying to figure out who should be curtailed to protect whom, you got into a whack-a-mole situation where if my pre-1914 is junior enough to be curtailed, then I’ll go to my riparian right, and particularly within the Delta, where there are overlaps in terms of time and priority between riparians and pre-1914s, it was a pretty complex process.”

Mr. George said this is one of the big challenges that we face in preparing for the next shortages that come because they are trying to administer a shortage between a riparian system and a priority system that have different systems of allocating that priority.  “It is most acute in the Delta which is also the hub of our system and it’s also where we have many more smaller diversions that are less choreographed and consolidated, so it’s a problem that we need to think about in terms of how we help the water community administer the water rights system so that the seniors get the protection that the system is designed to give them.”

Mr. George pointed out that was not an adjudication of water rights, which can only happen before the courts and with due process; this was a staff review of documents that were provided by the water right claimants to show the basis on which they made their claim.  He also noted that this review does not identify unlawful diversions or invalid claims at all.

What it does do, which I think is really important, is to provide the summary of responses to create the first comprehensive taxonomy of senior water rights demand in the watershed,” he said.  “That’s a really important thing that we did not have in 2014-2015.  The estimates of what those senior water rights were outside of our administrative system … so through a review of these responses, we’ve developed that first taxonomy.”

Mr. George acknowledged that there are some mistakes in the staff review, but they are hoping for ‘crowd correction’ to improve the data over time.  “Nonetheless, what this response summary has done is give the water community and the regulators as well as other people who are interested in this a framework on which to hang information, understanding, and data.  So it’s a big step forward.”

Mr. George said there is a website (more information here) for the public to review the data, which includes the GIS mapping, and is organized by island; it includes a chronological progression of maps where available.  A spreadsheet is also available that identifying each of the water rights and the staff’s summary of the information provided.

We are looking for crowd correction,” he said.  “That’s one of the reasons for showing our work and for making this available to the public, which is to demonstrate the value through the work of the staff, as well as the significant work of those who responded, which has provided something really valuable.  This provides a framework on which to hang that additional information that has come up.

Mr. George said they were dedicated to updating the records as further information comes in.  “Droughts are getting worse and more numerous, partly because of climate change, so it is incumbent upon us to take the lessons that we learned from 2014-15 and be as transparent as we can about how we hope to use that information to improve the quality of our data, so that as we face droughts in the future, we can use that information in a way that is predictable to water managers, so they can understand and think about what we might do and what they should do.”

Board member Dorene D’Adamo asked Delta Watermaster Michael George to discuss the existing contracts in the Delta.

If you take the San Joaquin River, everything north of that in the legal Delta is subject to a water supply contract between the DWR and the North Delta Water Agency, so every square inch of more than 1/3 of the Delta is covered by that water supply contract, which says ‘DWR without respect to an analysis of the underlying water rights, will supply water of an adequate quality for any beneficial use in that area.’  so that’s why we put them in category 4,” responded Michael George.  “We said even if the water right documentation is not everything we’d like, there’s no illegal diversion and use as long as its beneficial, along as its within Article 10 Section 2, meaning no waste and unreasonable use, if it’s beneficial use in that area, it’s covered.  It’s has a wrap around water supply contract.”

In addition, there is a similar contract in east Contra Costa County,” he said.  “The East Contra Costa Irrigation District at roughly same time in 1981, entered into a very similar contract with DWR.  So those are circumstances where there are blanket beneficial use contracts.  Now there are elsewhere within the Delta, people have other kinds of contracts.  Maybe the most recognized would be the Contra Costa Water District, which is a CVP contractor, so again the basis of their right would be very limited for their service area, but their contract with USBR essentially covers that, and the analysis that we do about the water rights is under USBR’s water rights, so we’re really talking in terms of the importance of these documents about Central and South Delta Water Agency jurisdictions, so basically from the San Joaquin line of demarcation all the way down to Vernalis.”

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