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“It’s a very convoluted system,” Baggett said.


Riparian rights entitle a landowner to use a correlative, or corresponding, share of the water flowing past the property. The water use does not re- quire a permit, but it is confined to the water that would naturally flow in the stream and it does not allow the user to divert water to storage. Riparian rights remain with the property when it changes hands, although parcels severed from the adjacent water source generally lose their right to the water. It is possible for property owners in California to exercise a previously un- used riparian or overlying water right that is senior to an appropriative user, but unlike in Colorado, there is no easy system for tracking all of the vari- ous water rights claims to California’s water resources, Hastings said, adding that surface water users with riparian rights or pre-1914 rights have to report their use to the State Water Board. The other challenge is paying for a water court. The State Water Board has the authority to hire administrative law judges for hearings but there is no money for it in the budget, Baggett said.


The waterways and wetlands of the Delta.


The idea of superior courts as- signing water rights and environmen- tal cases to select judges has been brought up “but the courts pushed back hard on that,” Baggett said. He noted that specialty courts are not wholly unknown, such as those that are devoted to family law or probate cases, and that “the most rational thing” would be to have a subset of the superior court with special judges assigned to water cases.


The pushback comes from the courts’ desire for autonomy and their reluctance to instill another tier, Baggett said.


Go the Way of the PUC? The State Water Board’s hearing process for water rights claims oper- ates with a board member acting as the hearing officer and legal staff present. It is not a separate decision-making process with an administrative law judge.


One possibility would be the State


Water Board adopting the California Public Utility Commission’s (PUC) adjudicatory process, in which 35 ALJs hear issues concerning the setting and review of rates.


“If they go with an [ALJ] we will be one of the agencies they would look at carefully,” said Gary Weatherford, an ALJ with the PUC. The PUC system “is pretty much self-supporting” through fines and fees, he said, with advisory judges taking the lead in the rulemaking and the commission mem- bers having the final say so. Baggett supports the idea, saying


the State Water Board “should adopt it today” but doesn’t have the budget for it.


Weatherford called it a “good


model” for the State Water Board to adopt. “It’s expensive but it’s also very efficient,” he said. “A lot more atten- tion can be given by an assigned judge than a board member.”


McGlothlin, who appears before the PUC, said its process “is more effi- cient and consistent with legal issues,” with decisions that are more likely to be upheld on appeal.”


Colorado Stands Alone For 135 years, the courts in Colorado have been the arbiter of who gets a decreed water right priority, in what amount, where it’s diverted and for what use. Colorado’s 1876 constitution


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Western Water


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