WATER RIGHTS FACT SHEET
August 15, 2001
(Download printable PDF version)
Water Rights System:
California’s system of water rights is referred to as a
"dual system" in which both the riparian doctrine and the
prior appropriation doctrine apply to water rights. There is
also a separate doctrinal basis for ground water, as well as
pueblo rights, so a more accurate classification of
California’s system would be a "plural system". Water rights
in California are use rights. All waters are the property of
the state. A water right in California is a property right
allowing the use of water, but it does not involve ownership
of the water. California’s water law is contained in the
California Code of Regulations, Title 23, and can found at:
Riparian rights result from the ownership of land bordering
a surface water source (a stream, lake, or pond). As
a class, these rights are senior to most appropriative
rights, and riparian landowners may use natural flows
directly for beneficial purposes on riparian lands without
applying for a permit (see Appendix One for Attributes of
Appropriative rights are acquired by putting surface water
to beneficial use. Prior to 1914, appropriative rights could
be claimed by simply diverting and using the water, posting
a notice of appropriation at the point of diversion, and
recording a copy of the notice with the County Recorder.
Since 1914, the acquisition of appropriative rights has
required an application through the State Water Board.
addition to riparian and appropriative rights, California
recognizes pueblo rights. These rights are derived from
Spanish law whereby Spanish or Mexican pueblos could claim
water rights. As a result, pueblo rights are paramount to
the beneficial use of all needed, naturally occurring
surface and subsurface water from the entire watershed of
the stream flowing through the original pueblo. Water use
under a pueblo right must occur within the modern city
limits, and excess water may not be sold outside the city.
The quantity of water available for use under a pueblo right
increases with population and with extensions of city
limits. In general pueblo rights are limited to use of water
for ordinary municipal purposes.
Responsibility for water in California is shared among
several agencies. The State Water Resources Control Board
(State Water Board) is responsible for the water rights and
water quality functions of the state. They have the
jurisdiction to issue permits and licenses for appropriation
from surface and underground streams. The board also has the
authority to declare watercourses fully appropriated. The
California courts have jurisdiction over the use of
percolating ground water, riparian use of surface waters,
and the appropriate use of surface waters initiated prior to
1914. The Department of Water Resources is responsible for
planning the use of state water supplies, and develops, in
consultation with the California Water Commission, rules and
regulations for this purpose.
Any entity intending to appropriate water is required to
file an application for a water right permit (or a use
registration for small scale domestic use) with the State
Water Board. A list of available applications can be seen in
A permit is not required from riparian right holders, ground
water users, users of purchased waters, or those who use
water from a spring or standing pool lacking a natural
outlet on the land they are located.
Once the application or registration has been accepted, a
priority is established in relation to other appropriators.
For domestic registration, the State Water Board provides a
Certificate of Registration which establishes general
conditions under which the diversion may be made. When an
application for a water right permit is filed, public notice
is given to interested parties. This indicates an
opportunity to file protests against the proposed
application. If differences cannot be resolved, either a
field investigation (for small applications requesting 3cf
or 200 acre-feet per year) or a State Water Board hearing is
application for a new water appropriation is approved if it
is determined to be for a useful or beneficial purpose and
if water is available for appropriation. In
evaluating an application, the Board considers the relative
benefits derived from the beneficial uses, possible water
pollution, and water quality. If a permit is approved, it
may be approved in full or it may be subject to specified
conditions. A decision or order from the State
Water Board is reviewable by the Superior Court. Once the
State Water Board issues a permit, the use and diversion of
water is authorized (see Appendix Three for a summary of the
steps to obtain a permit).
Once the permittee completes the necessary works, the water
is put to full beneficial use, and all terms and
conditions are met, a license is issued. The license
is the final confirmation of an appropriative right and it
remains in effect as long as the license conditions are met
and the water is put to beneficial use.
The time frame involved in obtaining a license in California
is highly variable. Permit decisions are required to be
reached within six months on accepted applications for
non-protested projects which do not require extensive
environmental review. Applications with unique requirements
for environmental review and/or require protest resolution,
may extend the time frame by months and even years.
Point of Diversion and Change of Use Procedures:
1928, the California Constitution was amended to require
reasonable diversion and use in the exercise of all water
rights. The only exception to the point of diversion
requirement is for instream flow rights. The State Water
Board and the courts have concurrent jurisdiction to apply
and enforce diversion and use requirements. The holder of an
appropriative right may change the point of diversion, place
of use, or purpose of use, so long as other rights are not
injured by the change. In order to change an attribute of a
water right in California, a change application must be
filed with and approved by the State Water Board. Change
applications follow the application process described above.
State Recognized Beneficial Uses:
Beneficial uses in California include the following:
Aquaculture - Raising fish or other aquatic organisms not
for release to other waters.
Domestic - Water used by homes, resorts, or campgrounds,
including water for household animals, lawns, and shrubs.
Fire Protection - Water to extinguish fires.
Fish and Wildlife - Enhancement of fish and wildlife
resources, including raising fish or other organisms for
scientific study or release to other waters of the state.
Frost Protection - Sprinkling to protect crops from frost
Heat Control - Sprinkling to protect crops from heat.
Industrial Use - Water needs of commerce, trade, or
Irrigation - Agricultural water needs.
Mining - Hydraulicking, drilling, and concentrator table
Municipal - City and town water supplies.
Power - Generating hydroelectric and hydromechanical
Recreation - Boating, swimming, and fishing.
Stockwatering - Commercial livestock water needs.
Water Quality Control - Protecting and improving waters
which are put to beneficial use.
The vast majority of California’s groundwater is
unregulated. The state does not have a comprehensive
groundwater permit process to regulate ground water
withdrawal. There are three legally recognized
classifications of groundwater in California: subterranean
streams, underflow of surface waters, and percolating
groundwater. Subterranean streams and underflow of surface
waters are subject to the laws of surface waters and are
regulated by the State Water Board. Percolating groundwater,
on the other hand, has few regulation requirements.
Percolating groundwater has two subclassifications:
overlying land use, and surplus groundwater. Land owners
overlying percolating groundwater may use it on an equal and
correlative basis. This means that all property owners above
a common aquifer possess a shared right to reasonable use of
the groundwater aquifer. These rights are similar to
riparian rights and since they are correlative, a user
cannot take unlimited quantities without regard to the needs
of other users. Surplus groundwater may be appropriated for
use on non-overlying lands, provided such use will not
create overdraft conditions. A permit is not required to use
percolating groundwater of either classification, but the
appropriation of surplus groundwater is subordinate to the
correlative rights of overlying users.
Water rights in California can be held by any legal entity.
There are no restrictions on who can hold water rights, thus
the owner can be an individual, related individuals,
non-related individuals, trusts, corporations, government
agencies, etc.. Water rights are considered real property
(they can be owned separately from the land on which the
water is used or diverted) and can be transferred from one
owner to another, both temporarily or permanently. Any
transfer (sale, lease, or exchange) is subject to approval
by the State Water Board through the application process
discussed above. Approval is granted upon finding that the
transfer would not result in injury to any other water right
and would not unreasonably affect fish, wildlife, or other
instream beneficial use.
appropriative water right in California can be maintained
only by continuous beneficial use, and can be lost by five
or more continuous years of non-use. Riparian rights, on the
other hand, cannot be lost through non-use. Appropriative
rights can also be lost through abandonment, but to
constitute abandonment of an appropriative right, there must
be the intent not to resume the beneficial use of the water
right. As a result, abandonment is always voluntary. The
rights to waters lost through abandonment or non-use revert
to the public, but only after notice has been given and a
public hearing is held.
California, adjudication can be initiated through the court
or through statutory procedures. Court initiated
adjudication occurs when a water right lawsuit is filed in
court (all surface and ground water rights may be included
in this procedure). In the case of a court initiated
adjudication, the court often asks the State Water Board to
act a referee and to conduct an investigation and report
back. Statutory adjudications result when one or more
entities claim a right from a specific source and file a
petition with the State Water Board. The statutory procedure
can be used to determine all rights to any body of water
including percolating groundwater. The result of a statutory
adjudication is a decree that integrates all rights on the
water source and sets quantity, season, priority, etc..
of 2000, sixteen basins in California had been adjudicated.
1991, California adopted changes to its water laws which
permitted the transfer of existing consumptive water rights
to the purpose of instream flow. These transfers can be made
for the purposes of enhancing wetlands habitats, enhancing
fish and wildlife resources, or increasing recreation on the
water. California law allows transfers to be either
permanent or temporary changes in use; therefore instream
flow rights can be both purchased and leased. New instream
flow rights retain the priority date of the original right.
California state law does not permit new appropriations of
water for instream flow. The State Water Board may attach
conditions requiring bypass flows to new consumptive use
appropriations, but these conditions do not constitute newly
appropriated instream flow rights. When a new water use
permit application is submitted, the State Water Board must
notify the Department of Game an Fish, which has the
authority to recommend amounts of water necessary to
preserve fish, wildlife, and recreation in the affected
stream. The board then considers these recommendations and
may set instream flow requirements as conditions for the new
permit. In this way, current flows can be protected even
though new appropriations for instream flow rights are
Recognized Beneficial Uses for Instream Flow:
Recognized beneficial uses of instream flow in California
include enhancing wetlands habitat, enhancing fish and
wildlife resources, increasing recreation on the water, and
protecting water quality.
Holdership of Instream Flow Water Rights:
Under California law, any "person" (public or private) may
hold an instream flow right, as long as that right was
established through a legal transfer.
BLM Specific Information:
The application process in California has proven to be
expensive for the BLM. For the appropriation process, the
BLM pays $1050 which includes the following: $100
application fee, $850 environmental filing fee, and $100
upon issuance of the permit. Since 1991, water right
applicants have been required to pay an $850 environmental
filing fee to the California Department of Fish and Game
(CDFG) with each application. This is a concern for the BLM
because the CDFG’s review is redundant to the BLM’s NEPA
process. The 1991 memo introducing the fee states that
"these fees are not intended to reimburse costs specifically
identifiable to individual projects, but rather to offset a
relative portion of the cumulative effect of all projects".
Therefore the BLM cannot request a waiver of this fee. In
terms of other water rights applicants, the BLM is required
to approve the necessary right-of-ways prior to the approval
of the application by the state.
The BLM is not currently involved in any of California’s
adjudications. In the past, however, the BLM has been
involved in the Eagle Lake and Alturas adjudications.
Regarding federal reserved water rights, the BLM California
holds a number of PWRs. In order to assert a PWR 107 or
other PWR, the BLM provides notice to the State of
California. In the past 15 years, there have been relatively
few PWR assertions in California and the extent of
unasserted PWRs is unknown. There are a number of PWRs that
are included in the Master Title Plans on BLM lands, and
these probably originated from assertions made before the
early 1980's. The BLM does not have any federal reserved
water rights on Wild and Scenic Rivers or on wilderness
areas in California.
The relationship between the BLM and the State of California
is very close and cooperative. The staff of the Division of
Water Rights have ben especially helpful to the BLM in
interpreting the details involved in each particular water
right decision. The staff has a practical mind set and helps
the BLM achieve their goals. The BLM also commonly assists
the state in their capacity surveys for the BLM reservoirs
which are moving from permit to licence. This has expedited
the process. The state has also been quite receptive to
suggestions from the BLM for streamlining some of the water
right reporting requirements.
State Water Resources Control Board
Division of Water Rights
1001 I Street
Sacramento, CA 95814
Appendix One: Attributes of Riparian Rights:
Riparian rights are of equal priority.
Unless adjudicated, the right is not quantified, rather
it extends to the amount of water which can be
reasonably and beneficially used on the riparian parcel.
Riparian rights are correlative. During times of water
shortage, the riparian proprietors share the shortage.
Water may be used only upon that portion of the riparian
parcel which is within the watershed of the water
The riparian right does not extend to seasonal storage
The riparian right is part of the riparian land and
cannot be transferred for use on other lands.
The riparian rights remains with the land when riparian
lands are sold.
When riparian lands are subdivided, parcels which are
severed from the adjacent water source lose their
riparian rights, unless the rights are reserved.
A riparian right is not lost by non-use.
Appendix Two: Types of Applications
Water Right Application Form
Environmental Information Form
Notice of Assignment Form
Agent Assignment Request Form
Application Protest Form
Cancellation of Application Form
Notice of Assignment Form
Answer to Complaint Form
Petition for Extension of Time Form
Petition for Correction Form
Petition for Change Form
Petition for Change in Distribution of Storage Form
Petition for Protest Form
Notice of Assignment Form
Request for Revocation Form
Petition for Temporary Permit Form
Petition for Temporary Urgency Change Form
Long term Transfer
Wastewater Change Petition Form
Appendix Three: Steps to Obtain a Permit
If you need assistance Board engineers will help you
prepare application forms, small project maps, and other
documents. Incomplete applications won’t be accepted.
You prepare an application which meets specific
requirements, including a filing fee.
Acceptance of Application
Board notifies you within 30 days that either your
application is incomplete or that it has been accepted.
Acceptance of your application establishes your priority
as the date of filing.
Unless you are granted an extension, you must provide
any additional information requested by the Board within
60 days of notification. If not, your application may be
Your proposed project is assessed to determine to what
extent it could alter the environment.
You assume cost for preparation of any required
The Board will send you a public notice describing your
proposed project. Copies of the notice are also sent to
known interested parties and to post offices in the area
of your project for posting.
For small projects, you must post the notice for 40
consecutive days in two conspicuous places near your
project site. For large projects, you must publish the
notice in a newspaper at least once a week for three
During the noticing period, the Board may receive
protests against your proposed project from interested
individuals or groups.
If protests are filed against your application, you must
respond to them in writing and attempt to reach
agreements so that protests can be withdrawn.
If protests cannot otherwise be resolved, you and the
protestant present your cases at a field investigation
or during a hearing conducted by the Board. The Board
issues a decision on protested applications based on
information gathered at the field investigation or on
evidence presented during the hearing.
You prepare testimony and exhibits for presentation at
the hearing and cooperate with the Board and protestant
toward reaching a satisfactory resolution.
A water right permit is issued when protests, if any,
are resolved or dismissed, or when the Board approves
the application by decision following a hearing. In
addition, a permit fee must be paid. During this phase,
the Board determines whether water conservation measures
Prior to issuance of a permit, you must submit a permit
fee as directed by the Board. If water conservation
measures are required, they will be included as a
condition of your permit.