2509.21,20 Contents
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FSH 2509.21 - NATIONAL FOREST SYSTEM WATER RIGHTS HANDBOOK
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CHAPTER 20 - METHODS FOR ENSURING WATER NECESSARY FOR AGENCY NEEDS
21
21.1
21.2
Contents
FEDERAL WATER LAW
Reserved (Federal) Water Rights
Instream Flows Requirements
22
22.1
22.2
22.3
22.31
22.32
22.33
22.34
22.35
22.36
22.37
22.38
22.39
22.4
22.5
22.6
22.7
22.71
22.72
22.73
STATE WATER LAW
Forest Service Water Right Filings
Permittee Water Right Filings
California Water Right Filings
Forest Service Water Developments
Excluded Water Uses
Riparian Rights
Overlying (Groundwater) Rights
Prescriptive Rights
Pueblo Rights
Appropriative Rights
Types of Appropriative Rights
Rule of Reasonable Beneficial Use
Nevada Water Rights Filings
Oregon Water Rights Filings
Protesting Water Rights
Water Rights Fees
California
Nevada
Oregon
23
STATE WATER RIGHTS ADJUDICATIONS
24
24.1
24.2
SPECIAL USE AUTHORIZATIONS
Water Uses Permitted under Special Use Authorization (FSM 2729)
Determining Available Water Excess to Current and Foreseeable Future Forest
Service Needs
Federal and State Jurisdiction over Teams and Conditions for Water Use on
National Forest Lands
24.3
25
AGREEMENTS WITH STATES, TRIBES, AND OTHER ENTITIES
26
PURCHASE/EXCHANGE OF WATER RIGHTS
27
CONDEMNATION
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FSH 2509.21 - NATIONAL FOREST SYSTEM WATER RIGHTS HANDBOOK
R-5 AMENDMENT 2509.21-96-1
EFFECTIVE 02/28/96
CHAPTER 20 - METHODS FOR SECURING WATER NECESSARY FOR AGENCY NEEDS
Forest Supervisors should secure water rights under state law as deemed appropriate by Office of
General Counsel (OGC) attorneys for NFS resource management. When water for federal
beneficial uses is not available under state law, secure water rights under federal law or
administrative authorities.
21 - FEDERAL WATER LAW. Federal (reserved) water rights were first established for Indian
Reservations and then were extended to National Parks, Forests, and Refuges. Reserved water
rights currently are recognized as property rights of the Government.
21.1 - Reserved (Federal) Water Rights.
1. Reservation Principle. Reservation of water on federally administered lands by the
United States is referred to as the "Reservation Principle". Under this principle, the United States
has the right to use water needed for the present and future management of the land reservation,
for the purposes for which the land was reserved. This includes both surface and groundwater
sources.
a.
Organic Administration Act (30 Stat. 34, as amended; 16 USC 473-482).
Secure water for NFS uses that maintain favorable conditions of water flow and
produce a continuous supply of timber. About 97 percent of the reserved lands in the
Pacific Southwest Region were withdrawn under authority of the 1897 Organic Act.
b.
Wilderness Act (16 USC 20 1131 et seq). Secure water for preservation of
wilderness characteristics identified in the wilderness designation, which generally
means preservation of natural conditions including the wilderness water resource.
c.
Wild and Scenic Rivers (16 USC 1284). Federal agencies administering the
river have been granted federal reserved water rights in the river in the amounts
necessary to carry out the purposes of the river designation.
2.
Conditions for Water Use.
a.
Federal reserved water rights are similar to state appropriative rights in that
they may be quantified in state court proceedings to a specific flow at a particular
place with a fixed priority date.
b.
The right applies to reserved land only, where both the point of diversion and
the point of use are located on reserved land. It does not apply on acquired lands.
c.
The right is limited to the amount of water needed to fulfill the primary
purposes of the Forest reservation authority. The quantity that can be used is the
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amount necessary during any period as long as it is not wasteful.
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d.
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The right is limited to water unappropriated as of date of the reservation.
3. Priority Date. Federal reserved water rights differ from private appropriative rights
because they are derived from federal statute and may be back-dated by the courts to the time of
creation of the federal reservation. This makes them senior to any private state water rights
which may have risen subsequent to the creation of the reservation.
4. Notification/Filing Requirements. None. Reserved water rights will only be reported
to states during an active adjudication, using the procedures specified by the adjudication
process.
21.2 - Instream Flows Requirements. The Fish and Wildlife Coordination Act (16 USC 661)
requires federal agencies to consider instream and environmental values in projects under the
administration or regulatory jurisdiction of federal agencies.
22 - STATE WATER LAW. This section provides general principles applicable to state water
rights, it does not provide legal advice. When there is doubt about a particular water right or a
controversy over water rights, contact the Regional Office Water Rights Specialist and/or OGC
attorneys for advice.
1. When necessary for resource managment, apply for water rights under state laws, at
the earliest possible date, when water is not available under Federal law.
2. Work with states, through cooperative agreements and arrangements, to ensure
availability of water needed for NFS resource management.
22.1 - Forest Service Water Right Filings.
1. Claim water rights for water used directly by the Forest Service and by general public
on National Forest land. Include impoundments built by the CCC and operated by the Forest
Service.
2. Claim water rights for water used by permittees, contractors, and other authorized
users to carry out activities related to National Forest multiple use objectives in the following
situations:
a.
National Forest management is constrained when a party other than the United
States holds the water right.
b.
National Forest programs/activities continue under future operations after
current permittee, contractor, or other authorized user discontinues operations.
3.
Assert the earliest priority date which applies under state law as follows:
a.
The date that the water was first put to beneficial use.
b.
The application date.
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4.
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File all applications in the name of the United States.
a. The name of the applicant shall be:
The United States of America, acting through
the United States Department of Agriculture, Forest Service
b. Use the Forest address.
c. The signature of the applicant shall be:
The United States of America, acting through
the United States Department of Agriculture, Forest Service
_________________, Forest Supervisor or
Acting Forest Supervisor
_________________ National Forest.
5. Pay state fees required to secure a water right, provided the fees are not clearly a tax.
Charge to the management code of the benefiting function.
22.2 - Permittee Water Right Filings. The following are not National Forest uses and the
permittee must secure the water right in the permittee's name:
1.
Mining, including domestic needs.
2.
Non-NFS reservoirs for municipal, irrigation, and power purposes and associated dam
facilities.
3.
State and county road maintenance facilities.
4.
State and county fire station facilities.
5.
State and county work camps.
6.
Radio stations, TV repeaters, and so forth.
7.
Schools and university study camps.
22.3 - California Water Rights Filings. The five types of water rights (see Section 12.21). Are
subject to different reporting procedures. No reporting is required for prescriptive, pueblo, and
most overlying rights. Riparian and overlying rights in four Southern California counties require
state notification of water uses. Appropriative rights require state filing for water rights.
22.31 - Forest Service Water Developments. Most National Forest water developments are
established under a mixture of appropriative, overlying, and riparian rights.
1.
Diversion. Requires a state appropriated or riparian water right.
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2.
Guzzler/surface catchment.
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a.
If no hydrologic continuity exists (all water is collected and used on reserved
National Forest land), these are excluded from water rights notification and filing
requirements.
b.
If use has hydrologic continuity, report only the amount of flow during the
season it reaches the stream. Reporting procedures are the same as for a riparian
water right.
c.
If basin is adjudicated, the Forest Service could lose these uses if no state
report is on record. Forests should protect these uses under state reporting
procedures.
d.
If the use is located within a fully appropriated basin, these uses must not have
hydraulic continuity during the season of full appropriation to be an authorized use.
Forests shall obtain a hydrologist's certification of no hydraulic continuity during
season of full appropriation.
3.
Horizontal Well.
a.
If a well drilled into a side hill intercepts no spring or subsurface flow, it is a
groundwater use with an overlying water right.
b.
If a well is installed into a surface seep or spring, the portion developed from
surface or subsurface flow needs a state appropriated or riparian water right unless it
is an excluded use. The portion developed from groundwater is an overlying water
right.
4.
Hydropower.
a. If project has a forebay impoundment, it needs a state appropriated water right.
b. If project is run-of-river (no forebay impoundment), consult with Regional Water
Rights specialist for water right needs.
5.
Impoundment. Project needs a state appropriated or riparian water right.
6.
Spring Box.
a.
If structure does not impound or divert water, it is excluded from water rights
notification or filing requirements.
b.
If structure impounds or diverts water, it needs a state appropriated or riparian
water right.
c.
If structure is connected to livestock/wildlife trough with an overflow, it needs a
state appropriated or riparian water right even if it has no surface flow back to the
stream.
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7. Vertical Well. If a well has no spring or subsurface flow, it is a groundwater use with
an overlying water right.
8. Wetland. Project needs a state appropriated or riparian water right unless excluded
from state notification or filing requirements.
22.32 - Excluded Water Uses. Several types of water uses are excluded from California water
rights notification and filing requirements. However, if the basin is adjudicated, the Forest
Service may lose the use if no state notification or report is on record. Forests should protect
unreported or undocumented uses, by using the same notification procedures as for a riparian
water right (see 22.33 (3)). The following types of diversions are excluded:
1.
From a spring which does not flow off the property on which it is located.
2. Included in a notice filed under the recordation of ground water extractions law in the
counties of Riverside, San Bernardino, Los Angeles, and Ventura.
3. Regulated by a watermaster appointed by the State of California, Department of
Water Resources.
4. Reported by the Department of Water Resources in its annual hydrologic data
bulletins describing certain major diversions from the Sacramento River and related
watercourses.
5. Included in the consumptive use data for the delta lowlands published by the
Department of Water Resources in its hydrologic data bulletins.
6. Included in annual reports filed with a court or the State Water Resources Control
Board by a watermaster appointed by a court or pursuant to statute to administer a final judgment
determining rights to water. These reports identify the persons who have diverted water, and
give the general place of use and the quantity of water which has been diverted from each source.
22.33 - Riparian Rights. This right exists by reason of ownership of land abutting a stream or
body of water. The United States as landowner holds riparian water rights to all lands adjacent to
watercourses on NFS lands. The United States established riparian landowner rights on reserved
lands through court proceedings in the Hallett Creek Basin adjudication in 1988.
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Conditions for Use.
a.
The water must be used on land which abuts the watercourse, lies in the
watershed of the watercourse, and is the smallest tract held under one title in the chain
of title leading to the present owner.
b.
The right only applies to the natural flow of the watercourse. It does not apply
to water imported from a different watershed.
c.
Riparian users may divert water from a point other than on their riparian land
as long as no injury is done to intervening riparian owners and no unreasonable loss
occurs.
d.
Water cannot be stored and held for later use (other than regulatory storage)
under riparian right. A riparian owner must obtain an appropriative right in order to
store water during one season for use during another season (over 30 days).
2. Priority of Use. Available water supply must be shared when insufficient to meet all
riparian needs.
a.
Between riparians, priority is based on time of use.
b.
Normally, riparian rights are superior to appropriative rights.
c.
Unexercised riparian rights are junior to exercised riparian rights and to senior
appropriated rights.
3. Filing/Notification Requirements. No formal filing is required from the State.
However, a 1965 statute provides for recording the right with the State Water Resources Control
Board on State form WR-40, Statement of Diversion and Use for informational purposes.
22.34 - Overlying (Groundwater) Rights. In California, overlying rights are analogous to
riparian rights in that both are based on ownership of land. The United States as landowner holds
overlying rights to all groundwater on National Forest lands.
1. Conditions of Use. Owners of lands overlying a common underground water supply
have the right to withdraw water for reasonable beneficial use on their overlying lands.
2. Priority Date. The rights of each overlying owner are mutual and correlative to the
rights of all other owners. In the case of insufficient water to fully supply the requirements of all,
the available supply must be equitably apportioned among the other overlying owners.
3. Filing/Notification Requirements. Generally no administrative procedure exists for
the determination of rights for groundwater. No formal filing is required to use groundwater on
overlying lands except in Southern California where legislation in 1955 established a program in
Riverside, San Bernardino, Los Angeles, and Ventura Counties on state form, Ground Water
Extractions (First Notice), (California State Water Resources Control Board Information Relating
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to Recordation of Water Extractions and Diversions in Riverside, San Bernardino, Los Angeles,
and Ventura Counties).
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22.35 - Prescriptive Rights. Prescription involves taking away a right which belongs to
somebody else. It is analogous to adverse possession or condemnation.
1.
A prescriptive right cannot be acquired against an upstream user. Forest Service does
not establish rights by prescription, nor can others establish them against us. However, in a few
cases, the Forest Service exercised a prescriptive right against former owners established on
lands later acquired by the Forest Service.
2. Use must meet the following six criteria in order to acquire a water right by
prescription.
a.
Be actual, open, and notorious. It must be out in the open and obvious so the
rightful owner of the right can see that his right is being invaded or challenged.
b.
Be adverse and hostile to the claim of the rightful owner.
c.
Be exclusive; that is, to the exclusion of the rightful owner or anybody else.
d.
Be continuous and uninterrupted.
e.
Be for the requisite number of years (five years).
f.
Be under a claim of right, and any applicable taxes must be paid.
3. California State Water Resources Control Board policy is to disregard a prescriptive
claim to water, subject to the post-1914 appropriation system, unless it is supported by a permit.
22.36 - Pueblo Rights. This is the right of an American city as successor of a Spanish or
Mexican pueblo to the use of water naturally occurring within the old pueblo limits for the use of
the city and its inhabitants.
1.
Conditions of Use.
a.
Applies only to the amount of water needed to supply the wants of the city's
inhabitants.
b.
Applies to both surface and groundwater of the stream that flowed through the
original pueblo, including its tributaries, from its source to its mouth.
c.
Increases with extension of the city, but the use of water must be within the city
limits.
2. Priority Date. The pueblo right is available for the use of the city whenever the city is
ready to exercise it. It is superior to riparian and approprative rights.
3.
Filing/Notification Requirements. None.
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a.
Pueblo rights may now be exercised in California only by the cities of Los
Angeles and San Diego.
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b.
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The San Diego pueblo water right was adjudicated in 1930.
c.
The Los Angeles pueblo water right has not been adjudicated and currently
remains unexercised. Part of the Angeles National Forest lies within the influence of
the Los Angeles pueblo right with unknown potential impacts to National Forest
water dependant resources.
22.37 - Appropriative Rights. In contrast to riparian and overlying rights, appropriative right is
not based upon land ownership. The right is gained by taking certain actions. An appropriation
of water is any taking of water, for other than riparian or overlying uses, whether such taking is
from the underground by wells or from surface streams by direct diversion or storage.
1. Conditions of Use. Appropriative rights to surface water and water flowing in known
underground streams differ from riparian rights in that:
a.
This is an exclusive right:
(1) To take a specific amount of water, limited to the amount of water that was
originally appropriated and continuously used. Significant increases in the amount of
water used constitutes a new appropriation and requires a new application. Nonuse
for a specific period of time subjects the right to loss.
(2) To take from a specific source, for a specific use, at a specific location. A
petition must be filed to request changes involving point of diversion, place of use, or
purpose of use after public noticing of the application or after issuance of a permit or
license.
(3) To take during a specific period of time. It may be the whole year or only
certain months. Extending the season of diversion would constitute a new
appropriation and require a new application.
b.
Is not based on owning the land contiguous to the source. An appropriator, in
the legal sense, is one who initially takes water without possessing rights based on the
ownership of land.
c.
Contributes to the total ownership interest in a piece of property and is
considered real property. In this respect, an appropriative water right is quite different
from other kinds of water use permits.
d.
In some cases, appropriative rights may be transferred from one party to
another.
e.
Any water not needed for the reasonable beneficial uses of those having prior
rights may properly be appropriated.
2.
Priority Date.
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a. As between appropriators, the one first in time, is first in right.
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b.
A prior appropriator may take all the water needed up to the full amount to
which he is entitled before a later appropriator may take any.
c.
Normally, appropriative rights are inferior to riparian rights. An exception to
this is the case of an appropriation of water diverted from streams flowing through
vacant public lands before the riparian lands were withdrawn from the public domain
of the United States; the appropriative diversions or the lands they serve may be either
upstream or downstream from the riparian lands.
3. Filing and Notification Requirements. Administered by State Water Resources
Control Board which sets terms and conditions for taking and using water under the water right.
a.
File only for those amounts which can be reasonably put to beneficial use
including reasonable conveyence losses.
b.
Formal filing is required by the state. Required forms are listed under the
individual type of appropriated water right.
22.38 - Types of Appropriative Rights. California has five types of appropriative rights to
surface water and water flowing in known underground streams. These include pre-1914 rights,
post-1914 small domestic use registration rights, post-1914 application-permit-license rights,
stockpond rights, and Water Code Section 1227 (AB929) rights.
1.
Pre-1914 Appropriative Rights.
a.
Conditions of Use. Until 1872 water was appropriated by simply taking and
using it beneficially.
b.
Priority Date. The priority of the right related to the first substantial act of
putting the water to beneficial use if done with reasonable diligence; otherwise, the
priority attached when beneficial use commenced. In 1872, statutes were enacted
which established a permissive procedure for perfecting an appropriation of surface
water. Provision was made for posting a notice of appropriation at the proposed point
of diversion and recording a copy with the county recorder. If the statutory procedure
was followed and the appropriation completed with due diligence, priority related
back to the date of posting. Otherwise, priority was established only when the water
was put to beneficial use.
c.
Filing and Notification Requirements. These rights are not under the control of
the State Water Resources Control Board. However, a 1965 statute provides that the
rights be recorded on State form WR-40, Statement of Diversion and Use, for
informational purposes the same as for riparian water rights. These rights do not have
to be recorded to be valid.
2. Post-1914 Appropriative Rights. Since December 19, 1914, an appropriation of
surface water and water in subterranean streams flowing in known and definite channels requires
compliance with California Water Code. Since January 1, 1989, two procedures exist for
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appropriating water in California, small domestic use registration and application-permit-license
procedure.
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a.
Small Domestic Use Registration.
(1)
Conditions of Use. Cannot be used when:
(a)
A small domestic use registration already exists for the place of use.
(b) The small domestic use diversion is during a season and from a stream declared
by the State Water Resources Control Board to be fully appropriated.
(c)
The small domestic use is from a stream segment for which California
Department of Fish and Game has established minimum flow requirements.
(2) Priority Date. The date the filing is accepted by the State Water Resources
Control Board.
(3)
Filing and Notification Requirements.
(a)
File applications on state forms WR-1, Application to Appropriate Water by
Permit or Registration of Small Domestic Use Appropriation, and WR-1-3,
Registration of Small Domestic Use Appropriation, Fish and Game Information, with
State Water Resources Control Board along with application fees.
(b) The Board issues a certificate of registration setting general conditions of
compliance. In addition, the right is subject to separately imposed requirements by
the California Department of Fish and Game.
(c)
No permits or licenses are issued.
b.
Application-Permit-License Appropriation.
(1) Conditions of Use. Appropriations excluded from small domestic use
appropriation or storage for other nonincidental uses, such as commercial
stockwatering, irrigation, or power.
(2) Priority Date. The date the filing is accepted by the State Water Resources
Control Board.
(3)
Filing and Notification Requirements.
(a)
File applications on State forms WR-1, Application to Appropriate Water by
Permit or Registration of Small Domestic Use Appropriation and WR-1-2,
Application to Appropriate Water by Permit, Environmental Information, with State
Water Resources Control Board along with application fees.
(b) The Board issues a public notice during which other parties may protest the
application.
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(c)
If the application is approved, a permit is issued specifying general and projectspecific conditions for water use compliance. A fee is required.
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(d) If a permit is issued, a specific period for project development and use of water
is allowed.
(e)
Staff of Department of Water Resources inspect the project for licensing
purposes.
3. Stockpond Certificate. This program legalizes older stockponds constructed prior to
1969 without valid water rights.
a.
Conditions of Use. A 1974 State statute grants the owner of a stockpond a
valid water right if:
(1)
Stockpond was constructed prior to January 1, 1969.
(2)
The capacity was not more than 10 acre-feet as of January 1, 1975.
(3) The water was used primarily for livestock watering; water rights litigation
between private parties was not a matter of record prior to January 1, 1974.
If the use does not meet the above criteria, the only legal way to obtain a water right is
through the application-permit-license process.
b.
Priority Date. This right is subject to other water rights.
(1) If a claim was filed prior to December 31, 1977, the priority of the right is the
date the pond was constructed.
(2) If a claim was filed after December 31, 1977, the priority of the right is the date
the claim is filed.
c.
Filing and Notification Requirements. An application for certification is filed
on form WR-45A, Claim of Water Right for Stockpond built prior to January 1, 1969,
and Application for Certification, with the State Water Resources Control Board.
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4. Water Code Section 1227 (AB 929). This is "Grandfather" legislation enacted by the
State in 1983 allowing the Federal Government to convert reserved water uses for secondary
purposes to appropriative water rights. These reserved water uses required State authorization
starting in 1978 following the Rio Mimbres decision. This legislation provided the Forest
Service an opportunity to establish early priority dates for these uses.
a.
Conditions of Use. The Forest Service acquired a priority right to water for
uses initiated before July 3, 1978 on reserved lands for purposes other than the
primary purposes for which the reservation was established, provided no existing
private right filed prior to July 1, 1984 is impaired.
b.
Priority Date. The right has a priority as of the date of initial use of the water,
except for all existing permits and licenses issued by the State Water Resources
Control Board prior to July 1, 1984, which have priority over any right claimed by the
United States.
c.
Filing and Notification Requirements.
(1) A statement for each use, containing specific information was required to be
filed with the State Water Resources Control Board by July 1, 1984. The State did
not develop a form for each use, but had the Forest Service submit a list containing an
entry for each water use affected by the legislation. Instead of assigning a State
number to each entry, the Board used the the Forest Use Number, an identification
number used in the Water Rights and Uses Inventory.
(2) The list is the filing document similar to an application, permit or license
document.
22.39 - Rule of Reasonable Beneficial Use. All water rights, to both surface and underground
water, are subject to the rule of reasonable beneficial use expressed in the California Water Code.
This rule limits a water right to the quantity of water reasonably required for beneficial use
(Sections 696, 697, Title 23, California Code of Regulations), and prohibits waste, unreasonable
use, and unreasonable methods of use or diversion (Sections 855 - 869, Title 23, California Code
of Regulations).
22.4 - Nevada Water Rights Filings. Nevada's water law is appropriative for both surface and
groundwater. The State Engineer allocates water use (Nevada Division of Water Resources
"Nevada Water Laws").
1. Conditions of Use. The State Engineer will issue a certificate of appropriation for
proven actual beneficial usage. Proof of actual beneficial water use is submitted to the State
Engineer on a statement under oath.
2. Priority Date. The date of application to appropriate water is received by the State
Engineer is the priority date.
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22.5 - Oregon Water Rights Filings. Oregon's water law is appropriative for both surface and
groundwater. The Water Resources Department allocates water use (Oregon Water Resources
Department "Oregon's Water Rights System").
1. Conditions of Use. The Water Resources Commission sets and administers water
policy including, establishing basin water use restrictions on both surface and groundwater by
development of river basin programs. It also sets minimum instream flows and approves
instream water rights.
a.
All water may be appropriated for use except those withdrawn by legislative
action or restricted by the Water Resources Commission under river basin programs.
b.
A water right is issued for the quantity of water that is beneficially used. If the
quantity used is higher than the actual use, the Water Resources Department will
determine the quantity that can be applied without waste. This will not exceed the
amount allowed by the permit.
2. Priority Date. The date of application to appropriate water is the priority date. If
competing uses have the same priority date, then domestic use and livestock watering have
preference over all other uses.
22.6 - Protesting Water Rights. Private parties sometimes apply for state water rights (either on
National Forest land, or upstream or downstream from a forest) that are currently in use by the
Forest Service or may be needed for future use for reserved water rights. If this happens, Forest
Supervisors must ensure that proper actions are taken to forestall state water rights activities
which are adverse to National Forest interests.
1. New Applications for State Water Rights. Forests shall protest any water right
applications by other parties, if those rights would injure present or foreseeable future uses on
NFS lands.
a.
California.
(1) Review State Water Resources Control Board monthly publication
"Applications Filed" listing water rights applications.
(2) Use State form WR-10, Protest, to protest water rights applications involving
private or National Forest lands. There are no provisions to protest small domestic
use registrations.
b.
Nevada. The State Engineer publishes notification of water rights applications
in the county newspaper for four weeks. Protests may be filed with the State
Engineer (Nevada Division of Water Resources "Nevada Water Laws").
c.
Oregon. Water Resources Department provides public notice of water right
applications filed. Applications may be protested to the Water Resources Department
(Oregon Water Resources Department "Oregon's Water Rights System").
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2. Transfer of or Change of Use for, Existing State Water Rights. Where a water right,
conditioned by a special use permit, has already been granted to a private party in connection
with an occupancy and use authorized by the Forest Service, and the holder of the right proposes
to sell, transfer, or otherwise cause the water to be used for purposes other than that for which the
right was granted, Forests shall do one of the following:
a.
Protest in accordance with provisions of state law.
b.
File a complaint of violation of terms and conditions with the California State
Water Resources Control Board (Section 820, Title 23, California Code of
Regulations).
c.
Terminate the Special Use authorization for water right (Section 24.3).
d.
Negotiate the purchase or exchange of such rights.
e.
Start condemnation actions, upon approval of the Chief.
22.7 - Water Rights Fees. For water use for other than reserved (federal) or riparian water rights,
the Forest Service, like any private party, must follow state appropriation processes and
procedures to appropriate water. This includes payment of fees associated with the appropriation
process.
22.71 - California. Fees are assessed for various water rights activities by the State Water
Resources Control Board and Department of Fish and Game.
1. State Water Resources Control Board. Fees are collected for an application; a permit;
a construction extension; changes in point of diversion, point of use, or purpose of use; transfer
of rights or water use outside basin of origin; or a release from priority. (See California State
Department of Water Resources "A Guide to California Water Rights Appropriations", "How to
File an Application/Registration to Appropriate Water in California", and "Statutory Water
Rights Law, and Related Water Code Sections")
2.
California Department of Fish and Game.
a.
Section 10005 of the Public Resources Code requires the California
Department of Fish and Game to impose a filing fee on any user of water upon
application for a water right. The intent of this "environmental filing fee" is to help
defray costs in preparing streamflow protection standards on stream studies proposed
by the state legislature. (Assembly Bill 3158)
b.
State legislation (AB 3010) amended Section 10005 of the Public Resources
Code to exempt projects that meet any of the following conditions:
(1) small domestic use registrations filed with the State Water Resources Control
Board,
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(2) first applications for extension of time for an individual water rights permit if
no change in point of diversion, place of use, or purpose of use is proposed,
(3) water applications which in the opinion of California Department of Fish and
Game are filed for administrative and technical clarification purposes.
22.72 - Nevada. State Engineer collects fees when submitting proof of appropriation, or if
hydrologic studies are deemed necessary. If a court hearing is involved in establishing a water
right, the court may set fees for costs (Nevada Division of Water Resources, "Nevada Water
Laws").
22.73 - Oregon. Fees are assessed by the Water Resources Department (Oregon Water
Resources Department "Oregon's Water Rights System").
23 - STATE WATER RIGHTS ADJUDICATIONS. Forest Supervisors shall notify the
Regional Forester of any potential or ongoing adjudications and of any time and place when
action is needed by legal counsel.
During general adjudication, the Forest Service is required to assert all claims for water. Forests
shall claim the following water rights and uses in an adjudication:
1.
Existing state water rights claims, permits or licenses held by the Forest Service.
2.
Reserved Water rights/uses - consumptive and non-consumptive.
3.
Existing unrecorded Forest Service uses.
4. Existing state water rights held by permittees that should be in the name of the Forest
Service, except for cases listed in Section 22.2.
5.
Future Forest Service water rights and uses.
6.
Other mandated water uses - compacts, adjudications, and so forth.
24 - SPECIAL USE AUTHORIZATIONS. A special use authorization is required for all water
use activities conducted on NFS lands, including the extraction, impoundment, storage,
transmission or distribution of water. A special use permit authorizes occupancy of the land for
the water development or transmission facility under the Federal Land Policy and Management
Act (43 USC 1701-1784), or if in a wilderness, the Wilderness Act (16 USC 20 1131 et seq).
The Forest Service has the authority to condition or restrict the flow of water across National
Forest land even if it would result in reducing the amount of water diverted below the amount to
which the water right holder would be entitled under state law.
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24.1 - Water Uses Permitted under Special Use Authorization (FSM 2729).
1.
Municipal water supply systems. Forest Service responsibilities are listed in FSM
2542.
2. Water Transmission (FSM 2729.1). Includes irrigation ditches and pipelines, and
water pipelines.
3. Impoundments (FSM 2729.2). Refer to FSM 7500, Water Storage and Transmission,
and FSH 7509.11, Dams Management Handbook.
4. Developments (FSM 2729.3). Includes wells, springs, and windmills; stockwater;
wildlife water supplies; fish ladders; and storage tanks. Spring development and well
construction applies to commercial water wells and spring developments, and to noncommercial
uses, such as springs and water systems developed to provide water to adjacent private homes
only. It is not intended to apply to geothermal water resources management.
5. Measurements (FSM 2729.4). Includes stream gaging stations, water quality
monitoring stations, and water treatment systems.
6. Hydropower (FSM 2770, FSH 2709.15 Chapter 10). Includes FERC projects, small
hydropower projects, and exempted hydropower projects.
24.2 - Determining Available Water Excess to Current and Foreseeable Future Forest Service
needs.
1. Where the Forest Service holds a water right, other than a Federal reserved water
right, on a stream, spring or well, and has determined that there is a portion of the water under
this water right potentially available for use by the applicant, the Forest Service may authorize
use of that portion under State law and set any other conditions in the authorization needed to
protect National Forest resources.
2. Where the Forest Service has determined water is available in excess of Forest
Service's present and foreseeable future surface or groundwater needs, a permit may be issued,
provided the development would not create an unfavorable or unmitigatable impact upon water
dependant resources or the environment, and the development cannot reasonably be located on
non-National Forest land.
3.
Procedures for determining available excess water.
a.
Reserved water. Federal reserved water may only be used for National Forest
purposes. There should be no excess water for reserved purposes.
b.
Non-reserved Surface water.
(1) Forest or District lands staff shall consult with Forest or District hydrology
staff to determine quantities of surface water excess to Forest Service needs that
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would be potentially available for special use authorization.
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(2) The surface water investigation will meet professional hydrology standards.
(See Gordon "Stream Hydrology", Harrelson "Stream Channel Reference Sites", and
Leopold "A View of the River")
(3) The investigation must take into account both current and future Forest Service
resource water uses and needs, existing state water rights claims, existing county
claims, existing water rights held by other federal agencies, jurisdiction of
adjudications or interstate compacts, and field investigations for unreported uses.
(4) The investigation must check for state mandated restrictions in areas where
stream systems/basins have been declared fully appropriated, or stream segments have
established minimum bypass flow requirements. (See California Department of Water
Resources "Inventory of Instream Flow Requirements Related to Stream Diversion",
and California State Water Resources Control Board "Revisions to Exhibit A, Water
Rights Order 89-25, Declaration of Fully Appropriated Stream Systems" and
"Streams Having Flow Requirements Pursuant to Section 10002 of the Public
Resources Code")
c.
Non-reserved Groundwater.
(1) Forest or District lands staff shall consult with Forest or District geology staff
to determine quantities of groundwater excess to Forest Service needs that would be
potentially available for special use authorization.
(2) The groundwater investigation will meet professional groundwater geology or
groundwater hydrology standards. (See Driscoll's "Groundwater and Wells" and
California Department of Water Resources "7-Steps for Managing Ground Water
Supplies")
(3) The investigation must take into account both current and future Forest Service
resource water uses and needs, jurisdiction of adjudicated groundwater basins, and
field investigations for unreported uses.
(4) The investigation needs to check for local groundwater management plans
developed by existing water agencies or water districts for all water users in an
aquifer or a groundwater basin.
24.3 - Federal and State Jurisdiction over Terms and Conditions for Water Use on National
Forest Lands.
1. Forest Service Jurisdiction. Forest Service must develop terms and conditions to
protect National Forest resources when authorizing water use on National Forest land.
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a.
Instream Uses. Protect instream flows in quantities sufficient to meet resource
management needs, including downstream wilderness areas, and instream aquatic
resources, such as aquatic habitat, riparian vegetation, amphibians, insects, fish,
wildlife, channel morphology, and so forth.
b.
Surface Water Diversions. The special use permit specifies the amount of water
that may be transmitted across NFS land. The decision to issue/renew/revoke a
special use permit is separate from the issuance of a state water right.
c.
Legal Right to Water. Special use permit authorization does not confer legal
right to use of water or provide a basis of acquiring a legal right to use of water
against the United States. Inform the permittee of this fact in writing within the
authorization document.
A water right, although a property right, is not considered ownership of water.
In California a legally valid state water right cannot be established without a special
use permit to transmit that water (Section 776, Title 23, California Code of
Regulations).
In California, a legally valid state water right cannot be maintained if the special use
permit for a privately-held water right is terminated. Without a special use permit, the
permittee cannot exercise the water right, and it will be terminated by the state after 5
years of non-use (Section 850, Title 23, California Code of Regulations).
d.
Right to Occupancy. Possession of a state water right does not grant the right to
occupy or transfer water across National Forest land, or grant an absolute right to
special use permit to occupy or transfer water across National Forest land.
2. State Jurisdiction. The State specifies how much water may be appropriated and
diverted from a water source when it issues a water right.
a.
Surface Water Diversions. In California permission of the land owner is
required before an appropriator can go on that land and divert water. Without a
special use permit, the State will not issue a water right (Section 775, Title 23,
California Code of Regulations).
b.
Overlying Water Rights for Ground Water Uses. Permittees can not obtain
overlying water rights to use groundwater on National Forest lands, but can be
permitted to use any available, non-reserved ground water considered excess to Forest
Service needs.
3.
Projects.
Federal Energy Regulatory Commission (FERC) Jurisdiction for Hydropower
a.
Special Use Authorization. Applicants for FERC hydropower projects must
also apply to the Forest Service for authorization when projects involve National
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Forest land (FSM 2770.1, FSH 2709.15 Chapter 50). The project special use
authorization is issued only after the FERC licensing authorization is complete.
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b.
4e Conditions. Forests shall participate in the FERC Environmental Impact
Study (EIS) as part of the licensing process for new or relicensing applications.
Forest Service develops bypass flow conditions for a project under section 4e of the
Federal Energy Act. These 4e conditions are incorporated into FERC license
conditions for an approved project.
25 - AGREEMENTS WITH STATES, TRIBES, AND OTHER ENTITIES. Use agreements to
assure availability of water needed for management of National Forest lands when water is not
available under federal or state water law. Consult with Regional Water Rights specialist and
OGC prior to developing an agreement with states, tribes or other entities.
26 - PURCHASE/EXCHANGE OF WATER RIGHTS. Purchase water rights necessary for
management of NFS lands where water is not otherwise available under state or federal law.
Forests must verify water rights prior to purchase or exchange (ch. 30).
27 - CONDEMNATION. Forests must coordinate with Regional Water Rights specialist and
OGC before initiating condemnation proceedures.
Condemnation of water rights shall be used only when management needs of NFS lands can not
be satisfied in any other way.