In our last post, we looked briefly at some of the opposition to Governor Jerry Brown’s new water conservation policy. As we noted, some opponents of the framework feel more emphasis needs to be placed on acquisition of new sources of water, which would entail permitting and licensing of water use.
In California, of course, there is a dual water right system in which water rights can be both riparian and appropriative. This means that water rights can be based either on ownership of land above or adjacent to a water source, or on obtaining a permit or a license to use water for a beneficial purpose. Generally, riparian rights—those based on land ownership—have a higher priority than appropriative rights.
Riparian right holders are usually not subject to the permitting process, nor are users of groundwater, purchased water, standing pools with no natural outlets. That being said, all water use is conditioned on the rule of reasonable use, and permitting and licensing are an important aspect of water use in California. Those who misappropriate water can be subject to fines and court action.
Navigating the permit process is critical not only for water districts, electric utilities, farmers and ranchers, but also for businesses which rely on the use of appropriated water. Permits for water use lay out in detail the amount of water that may be used and under what conditions it may be used, and specify timetables for a proposed water project. Prior to issuing a permit, the State Water Resources Board has to look at prior rights on the water, as well as water availability, and the necessary water flow to maintain instream uses.
The permitting process involves a number of steps. At each stage of this process, an experienced environmental law attorney can be an important resource for having the best possible opportunity at a favorable permitting decision. We’ll say more about this in our next post.