State Water Resources Control Board
901 P Street, Sacramento, CA. 95814
Dear Ms. Comstock:
Reply to your inquiry regarding effect of proposed federal legislation on adjudicated water rights.
Chief Counsel William Attwater has asked me to respond to your letter dated July 8, 1998, which inquired about the effect of proposed federal legislation (HR 858-S1027-the Quincy Library Group Forest Recovery and Economic Stability Act of 1997) on water rights which have been adjudicated under California law. Your letter also included a number of related questions about the anticipated effect of the proposed federal legislation on activities on the federal land to which the bill would apply.
As I discussed with you in an earlier phone conversation, the State Water Resources Control Board ( SWRCB) Office of Chief Counsel generally does not give advisory legal opinions on issues which are not presently pending before the SWRCB. This policy would apply to some of the questions raised in your letter regarding potential effects of proposed federal legislation on land management activities on federal land. The SWRCB does not have responsibility or any particular expertise regarding interpretation of federal law governing the federal government's land management activities on Nation Forest property.
One concern regarding the proposed legislation which does relate the State's regulatory authority over water rights is the question of how the legislation might affect state-recognized water rights. California Water Code section 74 provides that the SWRCB "shall exercise the adjudicatory and regulatory functions of the state in the field of water resources." Water Code section 102 provides:
"All water within the State is the property of the people of the State, but the right to use of water may be acquired by appropriation in a manner provided by law."
Numerous court decisions have addressed the relationship between various federal statutes and state water law. For example, the subject of riparian water rights on National Forest property was addressed by the California Supreme Court in its 1988 decision, In re Waters of Hallett Creek Stream System, 44 Cal. 3d 448[243 Cal. Rptr. 887]. In discussing the relationship between state and federal law in determining water rights on federal property the court concluded that recent decisions of the US Supreme Court "reaffirmed the long-established principle that Congress not only may, but nearly always has, deferred to state law in determining rights to water on federal lands." (44Cal. 3d at 460) The court then proceeded to apply it interpretation of California law, not federal law, to conclude that riparian water rights attach to federal land within the National Forests.
In general, federal law has been held to supersede state law regarding allocation and use of water only where there is a clear Congressional mandate which is inconsistent with application of state law. (California v. United States, (1978) 438 US 645[98 S.Ct. 2985].) The draft of HR 858 enclosed with your letter indicates that he proposed legislation would regulate land use within the affected areas of the Plumas, Lassen and Tahoe National Forests in various ways. I found no language in the legislation, however, which purports to supersede state law with regard to the determination of rights to divert water under state-recognized water rights. Therefore, I conclude that water rights which have previously been recognized under state law would continue to be recognized if the proposed legislation is passed and signed into law.
Your letter also inquired about how temporary interruptions in the diversion and use of water under an existing water right might affect the continued validity of the right. The subject of loss of post -1914 appropriative or adjudicated water rights due to nonuse is addressed by California Water Code section 1241 as follows:
"When the persons entitled to the use of water fails to use beneficially all or any part of the water claimed by him, for which a right of use has vested, for the purpose for which it was appropriated or adjudicated, for a period of five years, such unused water may revert to the public and shall, if reverted, be regarded as unappropriated public water. Such reversion shall occur upon a finding by the board following notice to the permittee and a public hearing if requested by the permittee."
Pre-1914 appropriative water rights, for which no permit or license has been issued by the state, are also subject to loss due to nonuse, but only after five years or more of nonuse. (Erickson v. Queen Valley Ranch Co., 22 Cal. App. 578 [99 Cal. Rptr. 446].) In view of the language of section 1241 and prior court decisions, a brief interruption of the diversion or use of water in order to comply with various land management provisions of the federal legislation would not result in the loss of an appropriative water right permit or license or loss of an adjudicated water right. Rather, if the holder of the water right intends to resume diversion and use of water, then loss of the water right due to nonuse would occur only after five or more years of nonuse and only upon a finding by the SWRCB (or a court) following notice and opportunity for a hearing.
If you have any further questions regarding the information above, please feel free to call me at 916-657-2104.
Daniel N. Frink, Senior Staff Counsel