posted to KBC Auguat 1, 2004

I wondered if you were aware of the work that the Siskiyou RCD has done on
a possible "Water Trust" for Scott River. They have completed Phase I.
Because of the adjudication, it is a very complex issue. Phase II will be
looking how it might be implemented. Here is my column on a workshop I
recently attended, which may be of interest:

Marcia Armstrong

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 others 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