29 March 2009

What's Beneficial Use?

All over the western United States, water rights* are defined with "beneficial use" in mind. Section 2 of Article X ("Water") of California's Constitution says:
It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare.
Now, I have always thought that beneficial use was defined to mean "producing positive economic value" BUT that transfers/trades of water were NOT considered beneficial use. Since transfers and trades DO happen, I think that's wrong.

Since control over transfers rests with the State Water Resources Control Board, I looked up their definitions of beneficial use (for municipal, irrigation, etc.), long-term transfers, and "wasteful use" [under California Code of Regulations, Title 23, Division 2, Chapter 2, Article 2, Subarticle 2 -- turn off pop-up blockers]

My impression is that SWRCB will approve transfers that continue to use water in a beneficial way but that such transfers do not automatically qualify as "beneficial." Is that true?

Just for reference, note that economists would define any result from a voluntary trade to be "beneficial," but I guess there are more lawyers than economists at SWRCB. That's a pity if it means that "legitimate" trades (win-win) are slowed or blocked by the need to prove beneficial use.

Bottom Line: Regulations regarding beneficial use need to be simple (or non-existent) if we are going to maximize the value of water rights.

* As a useful aside/addition, note these different types of water rights (via BLM):

Riparian rights result from the ownership of land bordering a surface water source (a stream, lake, or pond). As a class, these rights are senior to most appropriative rights, and riparian landowners may use natural flows directly for beneficial purposes on riparian lands without applying for a permit.

Appropriative rights are acquired by putting surface water to beneficial use. Prior to 1914, appropriative rights could be claimed by simply diverting and using the water, posting a notice of appropriation at the point of diversion, and recording a copy of the notice with the County Recorder. Since 1914, the acquisition of appropriative rights has required an application through the State Water Board.

Pueblo rights rights are derived from Spanish law whereby Spanish or Mexican pueblos could claim water rights. As a result, pueblo rights are paramount to the beneficial use of all needed, naturally occurring surface and subsurface water from the entire watershed of the stream flowing through the original pueblo. Water use under a pueblo right must occur within the modern city limits, and excess water may not be sold outside the city. The quantity of water available for use under a pueblo right increases with population and with extensions of city limits. In general pueblo rights are limited to use of water for ordinary municipal purposes.

6 comments:

WaterSource said...

Each state is a bit different with regard to use and beneficial use.

Generally speaking, a water right is a right to USE water according to the beneficial uses requested by the applicant and specified by the appropriate authority. In my opinion, Courts work much better than government agencies because the Courts will only claim jurisdiction to rule if there has been proper notification to all those who may be affected by the confirming of a water right or a transfer / change of water right.

The historical USE of a water right should be analyzed to determine how and how much water has been consumed by the beneficial uses originally awarded.

This is very important because what is left from one man's use is his neighbors source of the next downstream water right.

A water right owner is entitled to the conditions that existed when the water right was confirmed. This is why any change / transfer of a water right must be analyzed to make sure that other water right owners will not be DAMAGED by the change / transfer.

The transfer / change itself is not a beneficial use because what is being moved / changed is the historic consumptive use of the old water right.

What is owned and what has value in a water right is its historic consumptive use provided it was for the same beneficial use(s) awarded by the proper authorities.

As an example, water right awarded for the irrigation of 40 acres cannot be changed to fish culture or municipal use without a determination of the historic consumptive use CU. The CU is what can be changed to another use or place of use without DAMAGE to the vested water rights of others.

Is all of this strictled adhered to ... probably not. Should it be ... yes, if you want a viable water market that people can depend on.

A good example of what can go wrong when the rules are ignored is the dilemma facing CA. Southern CA received water rights with the written provision that when northern CA counties could put the water to beneficial use, the water rights to southern CA would be curtailed. No surprise here, only wishful thinking and hoping that the provision would never be mentioned.

All of the complications associated with changes and transfers is why I like to deal with non-tributary water. Because the water is NON-TRIBUTARY there is complete flexibility to move water provided it is properly measured and accounted for.

Think what CA &/or NV could do with a million acre feet of fresh water a year of NON-TRIBUTARY water !

Let me know what I need to clarify.
Ray Walker (Retired Water Rights Analyst) waterrdw@yahoo.com

Anonymous said...

SWRCB has lots of lawyers and engineers, but only one or two economists. There are a REGULATORY agency after all.

And engineers are so smart they can do anything anyway.

David Zetland said...

@Ray -- thanks for the excellent comment. It clears up a few things...

@Anon -- they can even make water -- and I don't mean peeing!!

Captain Flounder said...

WaterSource has got it right. A transfer is not a use. It's just a transaction. A transaction that moves water from one place of use or type of (beneficial) use to another.

And I do believe it is the policy of the State to transfer water where possible. It's in the California Water Code.

chris corbin said...

Lets say you have historically diverted 200 acre-feet of water to irrigate 40 acres of alfalfa. And, the the state agency will only allow you to transfer the water consumptively used (aka historic beneficial use) on the 40 acres of alfalfa (80 acre-feet for the purpose of this example). What happens to the other 120 acre-feet that you have a water right to but can't legally transfer because it is not recognized as consumptive use by the state?

David Zetland said...

@Chris -- my understanding is that you cannot divert that 120AF (since it's supposed to go back in the river anyway :)