WATER RlGHTS FOR RECREATION RESIDENCE (CABINS)ON

NATIONAL FORESTS

George A. GouldProfessor of Law

University of the Pacific, McGeorge School of LawSacramento, California

1. Basic Principles

A. Water rights are primarily a matter of state law.

1. Private parties usually acquire water rights pursuant to state law even when thewater is to be diverted and used on federal lands, such as the National Forests.

B. The federal government (and federal agencies such as the Forest Service) has somewater rights which are governed by federal law, not state law.

1. The most significant category of such rights are "federal reserved rights."

i. Under the reserved rights doctrine, when the federal government setsaside ("reserves") public lands for particular purposes, it impliedlyreserves sufficient water to carry out the primary purposes of thereservation.

11. National Forest have reserved rights.

(a) Such rights exist only for timber production and watershedprotection, the two primary purposes for which National Forestslands were reserved according to the United States Supreme Court.

(b) Reserved rights do not exist for recreational uses in NationalForests.

(i) Thus, water rights for cabins must be acquired pursuantto state law, whether acquired by the cabin owner or theForest Service.

2. The Forest Service can acquire state law based water rights for secondarypurposes.

i. This could include water rights for use by National Forest permittees,including cabin owners.

C. Recreational residences are authorized by special use permits issued by the ForestService.

1. The Forest Service has broad discretion regarding the terms and conditionsfound in special use permits.

II. State Water Laws

A. Appropriation Doctrine

1. Rights to use surface water are based solely on the appropriation doctrine(doctrine of prior appropriation) in all western states except California.

i. California recognizes the appropriation doctrine, but also recognizes theriparian rights doctrine (discussed below).

ii. While there are differences in detail, the fundamental principles of theappropriation doctrine are similar in all states.

2. The appropriation doctrine rests on two major principles.

i. Acquisition and retention of water rights are based on the "beneficialuse" of water.

ii. When available water supplies are insufficient to satisfy all waterrights, water is allocated on the basis of priority in time ("first in time isfirst in right").

3. In all western states except Colorado, the appropriation of water is regulated bystate government through pennits issued by a state agency.

i. The regulatory agency can deny or condition permits to promote the"public interest," including the protection of environmental values.

ii. Colorado regulates the appropriation of water through a system ofspecialized courts, known as "water courts."

B. Riparian Doctrine (Utilized only in California)

1. Under the riparian doctrine, which predominates in the eastern United States,water rights are based on the ownership of lands abutting a watercourse ("riparianlands").

2

i. Under the doctrine, each riparian landowner has a right to make a"reasonable use" of water on riparian lands.

(a) In a dispute, "reasonableness" depends primarily on an ad hocbalancing of the interests of the parties.

(b) Water can only be used on riparian lands.

11. Riparians essentially stand on an equal footing.

(a) Priority in time does not result in priority in right, at least intheory.

(b) In times of unusual shortage (drought), riparians are typicallyrequired to share the available supply.

2. California, unlike most states which use only one doctrine, recognizes waterrights based on both the appropriation and riparian doctrines.

i. Riparian rights generally have priority of appropriative rights.

ii. Permits are not required for the exercise of riparian rights in Californiaand the California Water Resources Control Board has only limitedregulatory authority over riparian rights.

3. National Forest lands in California have riparian rights.

C. Groundwater

1. Groundwater doctrines are more diverse than surface water doctrines.

2. Most western states regulate groundwater use through a permit system similarto their permit system for surface streams.

1. California, Colorado, and Arizona are exceptions.

(a) California has no state regulation of groundwater use, althoughan increasing number of counties regulate groundwater use to someextent.

3

(b) Some groundwater in Colorado is regulated by a state agency.Most of the groundwater in National Forests is not regulated by astate agency, but may be treated as surface water (called "tributarygroundwater") and administered through the water courts.

(c) While groundwater use in some of the densely populated partsof Arizona is regulated by the state, groundwater use in much ofthe state is not regulated.

III. Forest Service Policies Related to Water Rights.

A. Forest Service Manual, Chapter 2540 addresses water uses and development on theNational Forests.

1. Provisions which are relevant for cabin permittees:

i. Section 2541.32 directs the Forest Service to claim water rights in thename of the United States for "water used by permittees, contractors, andother authorized users of the National Forest System" if (1) "NationalForest management alternatives or efficiency will be limited if anotherparty holds the water right" or (2) "Forest Service programs or activitieswill continue after the current permittee ... discontinues operations."

ii. Section 2541.33 directs the Forest Service to "[p]rotest water rightsapplications made by users if the water right should be held by the UnitedStates."

iii. Section 2541.34 states: "The establishment of a water right onNational Forest System land does not limit the Regional Forester'sauthority to regulate land use and occupancy, nor to prevent injury toproperty ofthe United States. Although a permittee may make beneficialuse of water on National Forest System land, the Regional Forester retainsthe authority to determine management actions needed to comply withrules and regulations for land use occupancy."

iv. See also, Forest Service Handbook Region 5 Supplement 2709.11-2000-1, Special Use Administration, section 41.23g(f) which authorizesseparate structures for "pumphouses" in some cases and section 41.23 g(g)which authorizes off-lot improvements for water systems.

4

2. Two recent cases in the federal courts confirm the authority of the ForestService to impose by-pass flows (i.e., a requirement to leave water in a stream topreserve instream values) as a condition of a special use permit even though thepermittee had the right to divert the water under a state law water right. Althoughneither ofthese cases involved a cabin permittee, these cases confmn the broadauthority ofthe Forest Service to use its land use authority to impose conditionson the exercise of state law water rights.

IV. Securing Water for Permittee Use

A. Usually a permittee will need two things to have a secure right to use water: (1) Thelegal right to use water under state law, and (2) Appropriate land use authorization fromthe Forest Service to construct and maintain the facilities necessary to divert and conveywater to the permittee's lot.

1. Permittees may not need their own water right if the Forest Service hasobtained a water right in the name of the United States to provide water topermittees. This circumstance is probably not common.

B. A legal right to use water under state law does not always require authorization from astate water agency.

1. Examples:

i. A permittee in California using groundwater would not need a permitfrom the California Water Resources Control Board.

ii. A permittee in California may be able to exercise the riparian rightsassociated with National Forest lands. As noted above, the exercise ofriparian rights does not require a permit.

(a) The California Water Resources Control Board apparentlytakes the position that a National Forest permittee must haveexpress authority from the Forest Service to exercise NationalForest riparian rights. There appears to be no direct authority forthis position.

5

C. Some states have exemptions or simplified procedures for small domestic uses ofwater that may eliminate the need for a permit.

1. For example, California Water Code section 1228-1228.9 provides for theacquisition of small domestic water rights by "registration" rather than by theusual permit process. Registration is much simpler and cheaper than the permitprocess.

(a) A water right cannot be obtained through registration ifthe CaliforniaWater Resources Control Board has declared the stream system "fullyappropriated." Permittees wanting to take advantage of this process maywant to do so sooner rather than later to minimize this possibility.

D. The extent to which the Forest Service will require proof of a state water right beforeauthorizing a permittee to engage in necessary water development activities is not clear.

1. See for example Forest Service Handbook Region 5 Supplement 2709.11-2000-1, Special Use Administration, section 41.23 g(g) stating: "The Forest Sericemust check existing water rights and use prior to authorizing water diversion."

E. Possession of a water right may not entitle a permittee to take water at all times.Under the principle of priority, a permittee having a relatively junior appropriative waterright can be forced to curtail exercise of the right if the water is needed by persons withmore senior rights.

1. A 2005 issue of the National Forest Homeowners newsletter reported on acourt order in the state of Washington which prohibited National Forestpermittees from diverting water.

6