California Permit to Appropriate Water (19-CA-b)
Permit to Appropriate Water Process
19-CA-b.1 – Application to Appropriate Water
In order to obtain a new surface water right or the right to appropriate water from a subterranean stream, the developer must submit an application Application to Appropriate Water to the California State Water Resources Control Board (SWRCB). Cal. Code Regs. tit. 23 § 655.
The application requires a variety of information, including information:
- Identification of the applicant;
- Description of the project, including a map in accordance with Cal. Code Regs. tit. 23 §715;
- The purpose of use, diversion amount, and sources and points of diversion; and
- The project schedule.
Developers are encouraged to attach a water availability analysis. The developer must pay a filing fee in an amount indicated by the Fee Schedule. In addition, the developer must pay a fee of $850 to the California Department of Fish & Wildlife. Ca. Water Code §10005.
In addition to the information specified in the application, the SWRCB may require supplemental information in order to make a proper determination. Cal. Code Regs. tit. 23 § 683.
Applications to appropriate water for hydropower projects must also include maps showing the point of diversion, the conduit, penstock and powerhouse, and the point at which the water is returned to the stream. Cal. Code Regs. tit. 23 § 720(a). If the hydropower developer is applying for more than 3 cubic feet per second direct diversion or 200 acre-feet per annum, the application must also include a profile of the penstock showing:
- The elevation of the nozzle if an impulse wheel is to be used; or
- The elevation of the water surface at the draft tube if a reaction wheel is to be used; and
- The elevation of the first free water surface above the penstock. Cal. Code Regs. tit. 23 § 720(b).
19-CA-b.2 to 19-CA-b.3 – Review Application Materials for Completeness
Upon receipt of an application, the SWRCB will review the application for completeness within 30 days. If the application is incomplete, the SWRCB will notify the developer in writing, specifying those parts of the application that are incomplete. Thereafter, the developer has 60 days to file an amended and complete application or the SWRCB may cancel the application. Cal. Code Regs. tit. 23 § 678-679.
19-CA-b.4 – Issue Public Notice of Application
As soon as practicable after the receipt of an application, the SWRCB will issue a notice of the application and direct the developer to publish the notice. Cal. Code Regs. tit. 23 § 684.
If an instream beneficial use assessment is required by Ca. Water Code §1250.5 for the development of a small hydroelectric project, the SWRCB will issue public notice of the application as soon as practicable after determining that the instream beneficial use assessment is adequate. The SWRCB will direct the developer to publish the notice. Cal. Code Regs. tit. 23 § 684.
19-CA-b.5 – Initiate State Environmental Process
The SWRCB cannot issue a permit to appropriate water without first complying with the California Environmental Quality Act (CEQA). Generally, the SWRCB is responsible for preparing CEQA documents and conducting necessary surveys and analysis, however, the developer must pay costs associated with all components of a CEQA review. For a full description of the CEQA process, see
19-CA-b.6 to 19-CA-b.8 – Are Any Protests Properly Filed?
Protests to a proposed completed application must be submitted within the time stated in the notice issued by the SWRCB or such further time as may be allowed for cause by the SWRCB. Protests are only proper if filed in accordance with the provisions of Ca. Water Code§745. The SWRCB will determine if the protest is proper and whether a hearing is necessary to resolve the protest.
The SWRCB will reject a protest if:
- The protest fails procedurally by not complying with Cal. Code Regs. tit. 23 §745;
- The protest fails to state a valid ground of protest; or
- The protest is based upon issues not within the SWRCB’s jurisdiction.
The SWRCB encourages developers and protestants to negotiate in order to resolve the dispute. Where a valid protest is properly filed and negotiation is unsuccessful, the SWRCB may hold a hearing to resolve the protest. Cal. Code Regs. tit. 23 § 760. For “minor applications,” (any application which does not involve direct diversions in excess of three cubic-feet per second or storage in excess of 200 acre-feet/year) the SWRCB is not required to hold a hearing, but must minimally conduct a field investigation of the project and solicit information/materials from both the developer and protestant in order to make a determination. Ca. Water Code § 1345. For all other applications not within the definition of minor, the SWRCB must hold a hearing.
19-CA-b.9 –Does SWRCB Reject the Protest?
After promptly holding a hearing, the SWRCB will issue a decision Cal. Code Regs. tit. 23 § 765. Subsequently, either the developer or protestant may petition for reconsideration Cal. Code Regs. tit. 23 § 769. If the SWRCB accepts the protest, the application is considered cancelled and the process ends. Where the SWRCB rejects the protest, the process continues.
19-CA-b.10 – Determine Whether Application Conforms with the CA Water Code
The SWRCB determines whether to issue a permit to appropriate water by applying the application to the following statutory criteria:
- Is water available for appropriation?
- Is the application in the public interest?
- Does the application conform to applicable stream flow requirements?
- Does the application conform to applicable water quality control plans?
The Federal Power Act authorizes the Federal Energy Regulatory Commission (FERC) to regulate non-exempt hydropower projects, therefore preempting most state law. For example, California may not require higher flow requirements for a hydropower project than those required by FERC. California v. Federal Energy Regulatory Commission 495 U.S. 490 (1990). However, California maintains the authority over proprietary rights and may regulate the control, appropriation, use and distribution of water regarding FERC regulated hydropower projects. Yet, Most of California’s statutory criteria are considered by FERC in granting a hydropower license and FERC may impose conditions in the license to protect those values. Sayles Hydro Associates v. Maughan 985 F.2d 451 (9th Cir. 1993).
Neither a draft nor final permit to appropriate can be issued unless the CEQA process is complete and the developer pays all applicable fees.
19-CA-b.11 – Draft Permit, Including any Mitigation Measures
Where the application conforms to the statutory criteria, the SWRCB will issue a draft permit that includes any added mitigation measures not a part of the original application. Generally, the draft permit is considered conditional and the SWRCB will withhold issuance of a final permit until the developer consents to the additional terms or demonstrates an intent to continually comply with any mitigation measures and/or added conditions. Additionally, the SWRCB will not issue the final permit until the developer pays any outstanding CEQA expenses.
As mentioned above, the Federal Power Act limits California’s authority to condition a water right permit for projects subject to FERC licensing. For example, the SWRCB may not condition a water right permit for a hydropower project on bypass flow requirements in excess of flows required by FERC for the protection of instream beneficial uses. California v. Federal Energy Regulatory Commission 495 U.S. 490 (1990).
19-CA-b.12 – Permit to Appropriate Water
After all CEQA expenses are paid, the SWRCB issues a final permit. Standard permit terms and conditions are outlined in Cal. Code Regs. tit. 23 § 780. The SWRCB maintains a list of all standard permit terms, available on request.
19-CA-b.13 to 19-CA-b.15 – Report of Completion
While the developer now has a permit, the process is not complete until the developer obtains a license to appropriate water. A license constitutes the right to beneficially use the water into the future. Developers can obtain a license to appropriate by commencing beneficial use of the water permitted and undergoing inspection of the use by the SWRCB. The use must comply with the permitted terms and conditions and be equal to the full amount permitted. Where the developer is not yet using the full amount as permitted, the developer may apply for an extension of time. Cal. Code Regs. tit. 23 § 842. Procedurally, the developer issues a report of completion pursuant to Ca. Water Code §1600, the SWRCB conducts an inspection (Ca. Water Code §1605, and the SWRCB issues a license to appropriate water if they find the water is being put to beneficial use as contemplated in the permit to appropriate water and in conformance with law. Ca. Water Code §1650.
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