California Water Access and Water Rights (19-CA-a)
The California State Water Resources Control Board (SWRCB) has exclusive jurisdiction over surface water rights. Day to day matters are managed by the Division of Water Rights (within the SWRCB). The SWRCB shares enforcement responsibilities with the state courts.
California law provides for different treatment of surface water and groundwater. However, groundwater that is closely related to or behaves like surface water (“water flowing within a known and defined channel”) is classified as “subterranean streams” and subject to the same rules and regulations as surface water. All other sub-surface water is defined as “percolating groundwater” and is not subject to regulation by the SWRCB.
Most groundwater in California is percolating groundwater. The SWRCB has no jurisdiction over the extraction and use of percolating groundwater supplies. Rather, rights to percolating groundwater are determined by the court system and subject, in most cases, to local groundwater management. Groundwater supplies in California are generally managed by some form of local entity, such as a water master within a defined water district. Local groundwater management agencies or voluntary groundwater management plans must be considered in applicable project locations.Many groundwater basins in California, particularly those with the highest demand in relation to supply, are managed pursuant to a judgment entered by a court in a groundwater adjudication. The majority of adjudicated basins are located in Southern California where groundwater shortages and overdraft conditions have historically been greatest. However, newer adjudications have recently been completed to the north on the state’s central coast, e.g., Seaside, Los Osos and Santa Maria.
Water Access and Water Rights Process
19-CA-a.1 – Calculate Project Need
The developer will need to contact a water engineer/consultant to calculate the amount of water the project (e.g. exploration, drilling, construction, dust suppression, cooling water, etc.) requires.
19-CA-a.2 – Locate Source of Water Supply
The developer, with the assistance of a water engineer/consultant, must locate an appropriate source of water supply based on the project’s water requirement.
19-CA-a.3 to 19-CA-a.5 – Does the Project Area Abut Surface Water?
In the rare case that the project area abuts surface water, the developer may be able to satisfy the project water need by using a riparian water right. In most cases, riparian rights take priority over appropriative rights, but are still subject to certain fundamental principles. Riparian rights are subject to the public trust and may not harm the riparian rights, and in some cases, the appropriative rights, of others.
Although developers need not take action to vest a riparian right, a developer diverting water under a riparian claim should establish a record of water use by filing a Statement of Water Use and Diversion with the SWRCB.
If the developer has a riparian right sufficient to satisfy the entire project water need, no permit is needed and the developer may continue with the project. However, where the project requires more water than available in the particular riparian context and/or future uncertainty exists regarding the scope of the riparian right, the developer should consider other avenues available for acquiring water for the project.
19-CA-a.6 – Is the Supply a Commercial Purchase from a Supplier with a Water Right Designated for Commercial Purposes?
If the developer will obtain water through a commercial supplier with a water right designated for commercial purposes, the developer may be able to continue with the project without obtaining a new water right or otherwise changing the water right.
19-CA-a.7 to 19-CA-a.8 – Is the Supply from a Municipal Supply or Other Governmental Supplier?
If the developer will obtain the water from a local municipality, the developer may purchase water from the municipality through a tap fee, and in most cases continue with the project without obtaining a water right permit.
19-CA-a.9 to 19-CA-a.10 – Is the Source of Water Supply Fully Appropriated?
Appropriating surface water in California is an expensive and time consuming process, likely only necessary for projects requiring long-term water use.
If the source of water supply the developer seeks to acquire for the project is not fully appropriated, then they may file an Application to Appropriate Water with the SWRCB. Appropriated water is also subject to the public trust doctrine to protect instream flows. The procedure for appropriating surface water in California is separate and unique from the equivalent process for ground water sources. For an outline of the process to appropriate surface water, see Permit to Appropriate Water:
If the source of water supply sought by the developer is fully appropriated or the project does not require long-term water use the developer will need to consider the remaining avenues available for water acquisition, described below.
19-CA-a.11 to 19-CA-a.12 – Does the Project Require a New Water Well or the Appropriation of Ground Water?
In California, percolating groundwater is treated separately from surface water. The SWRCB does not retain authority over percolating groundwater. Instead, overlying landowners have an equal and correlative right to the percolating groundwater beneath their land. Appropriation of groundwater generally may not create overdraft and is subject to future needs of overlying landowners. Certain groundwater basins in California have been fully adjudicated by the courts and extractions (in excess of 25 acre-feet per annum) of groundwater within the counties of Riverside, San Bernardino, Los Angeles, and Ventura requires a notice filed with the SWRCB. Nevertheless, developers may be able to acquire groundwater to fulfill all or part of their project needs.
For a complete description of the Groundwater Considerations, see
19-CA-a.13 – Does the Developer Seek to Purchase or Transfer a Water Right?
At this point in the process, the developer may seek to purchase or transfer a water right from a third party. To procure established water rights, the developer will need to negotiate the purchase or transfer of an existing water right with the current owner. Depending on the type of right acquired, different processes apply.
19-CA-a.14 to 19-CA-a.15 – Was the Appropriative Water Right Perfected Prior to 1914?
Where a developer acquires appropriative water rights perfected prior to December 19, 1914, the developer does not have to submit a petition with the SWRCB. The SWRCB’s authority to regulate the transfer of appropriative surface water rights and subterranean streams derives from the California Water Commission Act, now incorporated in the California Water Code. Appropriative water rights perfected prior to enactment of the California Water Commission Act are not subject to regulation by the SWRCB.
Nevertheless, any developer diverting water under a prior appropriation claim that vested prior to 1914 should seek to establish a record of water use by filing a Statement of Water Use and Diversion with the SWRCB, if a statement of use has not already been filed. Establishing a record of water use is helpful in validating pre-1914 appropriative rights in cases of future challenge.
19-CA-a.16 to 19-CA-a.17 – Does the Developer Seek to Purchase a Water Right?
If seeking to purchase a water right, the developer will need to provide the SWRCB notice of the change in ownership so that the change may be recorded. For a full description of the process see
19-CA-a.18 to 19-CA-a.20 – Will the Supply Require a Change in the Purpose or Location of Use or Point of Diversion?
Subsequent to a change in ownership, the developer may need to change the purpose or location of use or point of diversion of the water right. Practically, this change could be effected by the original owner of the water right, prior to the developer’s purchase. However, the developer may choose to purchase the right and then go through the change process. In such cases, the developer must submit a Petition to Change an Existing Water Right to the SWRCB. For a full description of the process see
Where the newly-owned water right is permitted for the purpose and location of use and point of diversion that the project requires, there are no additional requirements and the developer may continue with the project.
19-CA-a.21 to 19-CA-23 – Is the Transfer for One Year or Less?
When transferring a post-1914 appropriative water right, the petition requirements depend on whether the length of transfer is for more or less than one year.
Where the transfer is for one year or less, the relevant process is outlined in
Short Term Water Transfer Process:
Where the transfer is for more than one year, the relevant process is outlined in
Petition for Long Term Water Transfer:
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