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FSH 2509.21 - NATIONAL FOREST SYSTEM WATER RIGHTS HANDBOOK
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Contents
01
AUTHORITY
02
OBJECTIVES
03
POLICY
04
04.1
04.2
RESPONSIBILITIES
Regional Water Rights Specialist
Forest and District Resource Specialist
05
DEFINITIONS
06
REFERENCES
07
FORMS - WATER RIGHTS AND USES
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FSH 2509.21 - NATIONAL FOREST SYSTEM WATER RIGHTS HANDBOOK
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ZERO CODE
01 - AUTHORITY. A Federal reserved right is a right to use water on reserved land for the
purposes expressed in legislation creating the reservation. Federal reserved water rights can be
asserted under Federal law using various authorities when water is not otherwise available under
State law. These authorities establish Forest Service management responsibilities, which involve
both consumptive and non-consumptive water uses in addition to general authorities in FSM
2541.01.
1.
Other Reservation Authorities.
a.
Forest Reservation Authority. Primary purposes for Forest reservation,
generally a continuous supply of timber and favorable conditions of flow, are stated in
the withdrawal documents or in the basic enabling authority. The following forests
have additional primary purposes:
(1) Modoc National Forest - for grazing purposes on lands reserved under the Act
(Proc. 1575, 41 Stat 1804) of October 1, 1920.
(2) Shasta-Trinity National Forest - for range, fish and wildlife, and recreational
purposes on lands reserved under the Act (P.L. 449, H.R. 3175) of March 18, 1948.
b.
Wild and Scenic Rivers (16 USC 1284). Gives the federal agency
administering the river reserved water rights in the river in the amounts necessary to
carry out the purposes of the river designation.
2.
Other Authorities Directing Water Use.
a.
Wetlands (Executive Order 11990) and Floodplain Management (Executive
Order 11988). Federal agencies are directed to avoid adverse impacts on wetlands
and floodplains, and to protect, preserve and enhance these areas.
b.
Clean Water Act (33 USC 1344). Section 208, Section 301, Section 313,
Section 404 involve the Forest Service in water quality management. Water quantity
is an important component in attaining and maintaining acceptable water quality
levels.
c.
The Federal Power Act (41 Stat. 1063) under section 4e (16 USC 797e)
restricts the Federal Energy Regulatory Commission (FERC) to licensing projects that
are consistent with reservation purposes and requires FERC to contain provisions
necessary to protect those reservation purposes.
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d.
Endangered Species Act (16 USC 1531-1543). Constrains Forest Service
issuance of special use authorization for water in that "any action authorized...is not
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likely to jeopardize the continued existence of any endangered or threatened species
or result in the destruction or adverse modification of habitat of such species".
e.
Wild and Scenic Rivers (16 USC 1278). Prohibits federal agencies from
issuing special use permits or rights of way if a project would have a direct or adverse
effect on the values for which the river was established.
3.
Acts Without Reservation Authorities.
a.
Weeks Law of March 1, 1911 (16 USC 480, 500, 515-519, 521, 552, 563).
Secretary of Agriculture is directed and authorized to acquire land in watershed of
navigable streams, to exchange lands exterior to the National Forest boundaries, and
to designate acquired land to a National Forest.
b.
Sisk Act of December 4, 1967 (PL 90-171, 81 Stat. 531 as amended; 16 USC
484a) regulated land exchanges with states and local governments.
02 - OBJECTIVES. To manage National Forest System surface and ground water resources to
ensure adequate supplies of sufficient quality are secured and maintained under Federal and State
laws to meet National Forest System purposes and resource needs before making excess water
available to private parties for their uses.
03 - POLICY.
1. To protect and manage water rights and uses integral to the workings of National
Forest resource functions and activities management, such as:
a.
FERC licensing and relicensing of hydropower projects
b.
Land acquisition
c.
Livestock and wildlife water developments
d.
Recreation management
e.
Special use authorization.
2. To recognize the role of the states in administering water rights and the validity of
private property rights of individuals.
3. To provide guidance for employees involved in water rights to effectively determine
Forest Service resource water needs and uses, and availability; establish rights to water under
federal and state law; and fulfill state water rights filing requirements, so that personnel without
any previous background in water rights can initiate appropriate actions.
04 - RESPONSIBILITIES.
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04.1 - Regional Water Rights Specialist. Regional Water Rights Specialist shall:
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1.
Assist Forests with administrative issues or controversies over water rights.
2.
Maintain a current regional water rights reference guide.
3.
Conduct periodic activity reviews on the forests.
4.
Provide quality control for water rights and uses program.
04.2 - Forest and District Resource Specialist. Forest and District watershed, special uses, and
lands specalists should initiate actions regarding water rights, uses and needs and shall:
1. Identify and quantify specific amounts of surface and groundwater, both consumptive
and non-consumptive, needed for present and future National Forest goals and objectives
identified in the Forest Land and Resource Management Plans.
2.
Secure surface and ground water necessary for agency needs.
3.
Manage water rights and uses with maintenance and verification activities.
4.
Maintain water rights and uses records.
5. Maintain security of the forest water rights and uses data base and verify data in the
data base.
05 - DEFINITIONS.
Adjudication.
The act of determining who has the right to the use of water and to
regulate the exercise of that right through judicial process.
Appropriative Right. The right to water based on a "first come, first served" basis where
other types of water rights are not applicable. Depending upon the date of establishment of the
use, formal filing may or may not be required. Continuity of use does affect the right.
Beneficial Uses of Water. A set of uses of water which are deemed by law to provide
legitimate bases for a water right.
Channel Maintenance Flow. A range of instream flows that maintain the existing
capacity of stream channels in a stable condition to provide for the transport of bedload sediment,
to prevent encroachment of vegetation into the active channel, and to protect the stability of
channel banks.
Consumptive Uses of Water. Uses of diverted water, resulting in losses by evaporation,
transpiration or infiltration to aquifers not directly connected to streams, which diminishes the
quantity available for further use downstream. Forest Service consumptive uses are involved in
timber production, recreation, and range.
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Diversion. A detour facility, or withdrawal point, for taking water from a stream, river, or
lake. Historically, a diversion was required before a water right could be recognized. Instream
flow laws eliminate this requirement.
(Federal) Reserved Water Right. A water right possessed by the federal government for the
use of water needed to meet the purposes of the reserved federal lands.
Fully Appropriated Stream Systems. All water available for consumptive beneficial uses
on a stream system that has been allocated between various water rights.
Guzzler/Surface Catchment. Surface apron catchments, diversions from spring boxes or
streams into tanks, primarily for wildlife or livestock water sources.
Hallett Creek Decision. A decision by the Supreme Court of California that holds that the
United States may enjoy riparian water rights under California law as landowner on national
forest land reserved from the public domain.
Horizontal Well. A non-vertical well drilled into a side hill, often used to augment a
surface spring or seep.
Hydraulic Continuity. Springs and standing pools with natural outlets that contribute to a
flowing stream, either by surface or subterranean flow.
Instream Flow. A beneficial use of streamflow that derives from its presence within the
natural channel without diversion or impoundment to satisfy aquatic
habitat, riparian vegetation, fish, wildlife, recreation, watershed management, and other needs.
Non-consumptive Use of Water. Uses of water which do not diminish the quantity of water
transmitted downstream, such as instream flows necessary to maintain the stability of stream
channels, the volume and timing of flows required for adequate sediment transport, the proper
maintenance of riparian vegetation, the wilderness character of an area, and to fulfill the purposes
of the designation of a Wild and Scenic River, and so forth.
Overlying Right. California state water right to an underground water supply based on
ownership of the land above the water.
Prescription. Assertion of a title to the right to use water, on the basis that the prior right
has become invalid or unenforceable by lapse of time and specified conditions.
Priority Date. The date attached to all water rights indicating when the water right was first
obtained. The priority date determines how senior the water right is.
Public Trust Doctrine. The responsibility of the state to hold certain valuable property
rights in trust for the benefit of the citizens of the state. In California it has been extended to
water rights.
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Reasonable and Beneficial Use. A California state constitutional requirement that all water
resources must be put to the best possible use, preventing waste or unreasonable use or
unreasonable method of use.
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Regional Water Rights Reference Guide. A supplement to the regional water rights
handbook. It provides more specific information on federal and state water rights procedures, as
well as how to coordinate with other administrative activities such as special use authorization
and groundwater management in California. In addition, it will contain copies of state water
rights documents, water rights forms, and legislation affecting state water rights administration.
Reservation Principle. A 1908 U.S. Supreme Court ruling that the United States has the
right to use surface and ground water needed for the present and future management of its
reserved lands. This principle only applies to water unappropriated at the time lands were
reserved.
Reserved Land. Lands set aside from the public domain for inclusion in the National Forest
System (in contrast to acquired lands) and the right to water in sufficient quantities for the future
requirements of these lands.
Riparian Right. The right to water based on the ownership of land abutting a stream or
body of water.
Spring Box. A structure in a spring to protect it from surface contamination. Often
combined with diversion into storage installation.
Storage Installation. A facility for storing water from year to year.
Transient Facility. A non-permanent facility for the diversion, storage, or transmission of
water.
Transmission Installation. A pipeline or ditch facility for moving water from a stream,
river, or lake to the point of use, or a storage facility.
Verification of Water Rights. The process of determining if a water right exists, by
locating documentation of such as recorded in deeds, State filings, and court adjudication
documents.
Water Right. The legal right to make use of the water from a particular water source for a
federal reserved use or a state-recognized beneficial use.
06 - REFERENCES.
Anderson, D.B., 1977. Riparian Water Rights in California, background and issues.
Governor's Commission to Review California Water Rights Law, Staff Paper No. 4. 90p.
Archibald, M. D., 1977. Appropriative Water Rights in California, background and issues.
Governor's Commission to Review California Water Rights Law, Staff Paper No. 1. 63p.
Brickson, B, and Hartshorn, J.K., 1994. Layperson's Guide to California Water. Water
Education Foundation, Sacramento, CA. 20p.
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Brickson, B, and Duncan, J., 1993. Layperson's Guide to Ground Water. Water Education
Foundation, Sacramento, CA. 16p.
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Brickson, B, and Duncan, J., 1992. Layperson's Guide to California's Rivers and Streams.
Water Education Foundation, Sacramento, CA. 20p.
California, 1983. Assembly Bill 929, An Act to Add Article 2.6 (commencing with Section
1227) to Chapter 1 of Part 2 of Division 2, of the Water Code, relating to water. Legislative
Counsel's Digest. 3p.
California, 1992. Assembly Bill 3010, An Act to Amend Section 711.4 of the Fish and
Game Code, and to amend Section 1005 of the Public Resources Code, relating to the
Department of Fish and Game. Legislative Counsel's Digest. 7p.
California, 1992. Assembly Bill 3030, An Act to Repeal and add Part 2.75 (commencing
with Section 10750) of Division 6 of the Water Code, relating to water. Legislative Counsel's
Digest. 10p.
California, 1990. Assembly Bill 3158. Legislative Counsel's Digest.
California, Department of Water Resources, 1992. Adjudicated Ground Water Basins in
California. Water Facts No. 3. 4p.
California, Department of Water Resources, 1994. California's Ground Water. Bulletin
No. 118. 135p.
California, Department of Water Resources, 1992. California Laws, for Water Wells,
Monitoring Wells, Cathodic Protection Wells. 14p.
California, Department of Water Resources, 1992. California Well Standards, Questions &
Answers. Water Facts No. 5. 4p.
California, Department of Water Resources, 1993. Ground Water. Water Facts No. 6. 8p.
California, Department of Water Resources, 1980. Ground Water Basins in California, A
Report ot the Legislature in Response to Water Code Section 12924. Bulletin 118-80. 73p.
California, Department of Water Resources, 1991. Ground Water in Fractured Hard Rock.
Water Facts No. 1. 4p.
California, Department of Water Resources, 1992. Ground Water Management Districts or
Agencies in California. Water Facts No. 4. 4p.
California, Department of Water Resources, 1991. 7-Steps for Managing Ground Water
Supplies. Water Facts No. 2. 2p.
California, Department of Water Resources, 1982. Inventory of
Instream Flow Requirements Related to Stream Diversions. Bulletin 216. 301p.
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California, Governor's Commission to Review California Water Rights Law, 1978. Final
Report. 264p.
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California, 1991. Senate Bill 301, An Act to Amend Sections 1703, 1726, and 1736 of, and
to add Section 1707 to, the Water Code, relating to water. Legislative Counsel's Digest. 4p.
California, State Water Resources Control Board, 1987. Examples of Amounts Considered
Reasonably Necessary. California Administrative Code, Title 23, Section 697. pp. 42, 43.
California, State Water Resources Control Board, 1989. A Guide to California Water Right
Appropriations. 21p.
California, State Water Resources Control Board, 1990. How to File an
Application/Registration to Appropriate Water in California. 31p
California, State Water Resources Control Board, 1991. Information Relating to
Recordation of Water Extractions and Diversions in Riverside, San Bernardino, Los Angeles and
Ventura Counties. Publication 91-3 WR. 9p.
California, State Water Resources Control Board, 1990. Information Pertaining to Water
Rights in California. 20p.
California, State Water Resources Control Board, 1985. The Nuts and Bolts of Water
Right Hearings, process and procedure. 21p.
California, State Water Resources Control Board, 1987. Regulations Pertaining to
Appropriation of Water in California. California Code of Regulations, Title 23, Waters; Chapter
3, State Water Resources Control Board. Unpaged.
California, State Water Resources Control Board, 1987. Regulations Pertaining to Protests
and Hearings. California Administrative Code, Title 23, Waters; Chapter 3, State Water
Resources Control Board; Subchapter 2, Appropriation of Water; Articles 9, 10, 11, and 12. 8p.
California, State Water Resources Control Board, 1991. Revisions to Exhibit A, Water
Right Order 89-25, Declaration of Fully Appropriated Stream Systems. 69p.
California, State Water Resources Control Board, 1991. Addendum, Explanation of
Seasons of Unavailability on Fully Appropriated Stream Systems to (Revisions to Exhibit A,
Water Right Order 89-25, Declaration of Fully Appropriated Stream Systems). unp.
California, State Water Resources Control Board, 1989. Statutory Water Rights Law, and
related water code sections. 108p.
California, State Water Resources Control Board, 1989. Streams Having Flow
Requirements Pursuant to Section 10002 of the Public Resources Code. 1p.
California, State Water Resources Control Board, 1991. Water Code Sections and
Regulations Relating to Water Rights for Stockponds Constructed Prior to 1969. Publication 914 WR, 5p.
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Driscoll, F.G., 1986. Groundwater and Wells, A comprehensive study of groundwater and
the technologies used to locate, extract, treat, and protect this resource. Johnson Filtration
Systems, Inc., St.Paul, MN. 1089p.
Gipsman, J. 1992. Special Use Permit for Water Diversion. Issue Letter, Office of
General Counsel, Pacific Southwest Region.
Gordon, N.D., McMahon, T.A., Finlayson, B.L., 1992. Stream Hydrology, An Introduction
for Ecologists. Wiley, Chilchester, England. 526p.
Gutshall, N., 1992. Layperson's Guide to Water Rights Law. Water Education Foundation,
Sacramento, CA. 16p.
Harrelson, Rawlins and Potyondy, 1994. Stream Channel Reference Sites: An Illustrated
Guide to Field Technique.
Hutchins, W. A.,Jr. Water Rights Laws in the Nineteen Western States. Natural Resources
Economics Div., Economic Research Service, U.S. Department of Agriculture Misc. Pub. No.
1206, Vol II. pp. 145-158, 694.
Lee, C.T., 1977. The Transfer of Water Rights in California, background and issues.
Governor's Commission to Review California Water Rights Law, Staff Paper No. 5. 72p.
Leopold, L.B., 1994. A View of the River. Harvard University Press, Cambridge, MA.
298p.
McClurg, S., 1993. Ground Water Management. Western Water, November/December.
11p.
Nevada, Division of Water Resources, 1991. Nevada Water Laws. Title 48 - Water,
Chapters 532 to 538, 540, 543, 544; and Chapter 232 of State Department of Conservation and
Natural Resources.
Nevada, Division of Water Resources and Department of Conservation and Natural
Resources, 1990. Regulations for Water Well and Related Drilling.
Nevada, Division of Water Resources. Regulations Concerning Preparation of Maps under
Applications to Appropriate Water and Proofs of Appropriation. 12p.
Nevada, Division of Water Resources, 1971. Guidelines for Nevada Water Planning.
Water Planning Report No. 1. 9p.
Nevada. Division of Water Resources, 1971. Estimated Water Use in Nevada. Water
Planning Report No. 2. 32p.
Oregon, Water Resources Department, 1992. Oregon's Water Rights System. 33p.
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Oregon, Water Resources Department, et. al., 1992. Instream Water Rights, Questions and
Answers. pamphlet.
07 - FORMS - WATER RIGHTS AND USES.
State of California, State Water Resources Control Board, Division of Water Rights, PO
Box 2000, Sacramento, California 95812-2000.
1. WR1. Application to Appropriate Water by Permit or Registration of Small Domestic
Use Appropriation.
2. WR1-2. Application to Appropriate Water by Permit, Environmental Information.
Used to obtain/provide information for the environmental review of the application to
appropriate water by permit.
3. WR1-3. Registration of Small Domestic Use Appropriation, Fish and Game
Information. Used to obtain fish and wildlife information for the registration of small domestic
use appropriation.
4. WR10. Protest. Protests based on Environmental Considerations, Public Interest,
Public Trust, and Other Issues on one side. Protests based on injury to vested rights on the other
side.
5. WR17. Report of Licensee. This report is required by the terms and conditions of
your license.
6.
WR40. Statement of Water Diversion and Use. This is not a water right.
7. WR40-I. Supplemental Statement of Water Diversion and Use. Must be filed by
riparian and pre-1914 appropriative water users.
8. WR45A. Claim of Water Right for Stockpond built prior to January 1, 1969, and
Application for Certification.
9. Ground Water Extractions, First Notice. Pursuant to Part 5, Division 2 of the Water
Code. Complete a separate notice for each well.