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California Petition for Long Term Water Transfer (19-CA-g)

Information current as of 2022
In California, a developer may need a long term water transfer approval from the California State Water Resources Control Board (SWRCB) if a project required temporarily changing the point of diversion, place of use, or purpose of use of their post-1914 water appropriation right for longer than one (1) year. Cal. Water Code § 1735.Before a long term transfer can be approved, the SWRCB must make a finding that the temporary change will not injure any legal user of the water and that it will not unreasonably affect fish, wildlife or other instream beneficial uses. See Ca. Water Code §1736 of the California Water Code. Regulations governing long term water transfers can be found in Cal. Code R. & Regs. tit. 23 § 811 et seq.


It should be noted that approval from the SWRCB is only required for post-1914 right holders. Pre-1914 right holders may change the point of diversion, place of use, or purpose of use, or transfer water, without petitioning the SWRCB, although they must still ensure that the change or transfer does not injure other legal users.



Petition for Long Term Water Transfer Process


19-CA-g.1 to 19-CA-g.3 – Petition for Change Involving Transfer of Water

In order to initiate a long term water transfer, the permittee must file a Petition for Change Involving Transfer of Water with the SWRCB. Ca. Water Code §1735; Cal. Code R. & Regs. tit. 23§ 811(a). The petition must identify the “amount(s) and holder(s) of the right(s).” Cal. Code R. & Regs. tit. 23 § 794. The following must also be included in the petition:

  • The amount(s) of water which would have been diverted, consumptively used, or stored under the water right in the absence of the proposed change(s), (a) during the period for which the change is requested, or (b) in a maximum year if the change is permanent;
  • The amount(s) of water proposed for change, transfer or exchange;
  • The existing and the proposed purpose(s) of use of water;
  • The existing and the proposed point(s) of diversion and rediversion, and the existing and proposed location(s) of any return flow;
  • The existing and the proposed place(s) of use of the water for various purposes of use;
  • The existing and the proposed diversion, release and return flow schedules if stored water is involved or if the streamflow regime will be changed;
  • Any changes in property ownership(s) involved, and the point(s) of diversion and place(s) of use of other known users of water who may be affected by the proposed change(s);
  • Information identifying any effects of the proposed change(s) on fish, wildlife, and other instream beneficial uses;
  • Information identifying any effects of the proposed change(s) on other known users of water, including identification in quantitative terms of any projected change in water quantity, water quality, timing of diversion or use, consumptive use of the water, reduction in return flows, or reduction in the availability of water within the streams affected by the proposed change(s);
  • The parties involved in the proposed change, transfer or exchange;
  • Map(s) prepared in accordance with Cal. Code R. & Regs. tit. 23 §§ 715-724 which describe the proposed change(s), delineate any additional information required, and show the hydrologic basin of origin and the streams which could be affected by the proposed change(s); and
  • The proposed place(s) of use for irrigation, which may be listed as net acreage(s) within gross area(s) shown on a map submitted with the petition.

In addition, the petition must include a filing fee. If the filing fee is not included, the petition will not be accepted. See Cal. Code R. & Regs. tit. 23 § 791(f); Cal. Code R. & Regs. tit. 23 § 812.

19-CA-g.4 – Conduct Field Investigation (Optional)

The SWRCB may conduct a field investigation at its discretion. See Cal. Code R. & Regs. tit. 23 § 755. In addition, any party may request that the SWRCB evaluate the benefits and detriments of the proposed change in accordance with Cal. Code R. & Regs. tit. 23 § 756.

19-CA-g.5 – Initiate State Environmental Review Process

A significant difference between a long term transfer (more than a year) and a short term transfer (a year or less) is that the former requires review under the California Environmental Quality Act (CEQA). Because CEQA review can be time consuming and expensive, developers should consider starting the process early. For a full description of the CEQA process see:

State Environmental Review Process:
9-CA-a

19-CA-g.6 – Issue Notice of Petition

For long term transfers, the SWRCB will give notice of the petition to the California Department of Fish & Wildlife (CDFW), all persons requesting notice of change petitions, and all legal users of water (known to the board) who may be affected by the proposed change. See Cal. Code R. & Regs. tit. 23 § 814. The SWRCB is also required to notify any person that previously filed a written request to receive notice of the filing of change petitions. See Cal. Code R. & Regs. tit. 23 § 795(b).

19-CA-g.7 - Consult with the California Department of Fish and Wildlife (CDFW) and the Regional Water Quality Control Board (RWQCB)

Permittees must request a consultation with both the California Department of Fish and Wildlife (CDFW) and the appropriate Regional Water Quality Control Board (RWQCB) regarding the potential effects of the proposed change on water quality, fish, wildlife, and other instream beneficial uses. The permittee must then submit all comments derived from the consultation to the SWRCB. The SWRCB may not approve the petition until the comments have been submitted. Cal. Code R. & Regs. tit. 23 § 794(b) and (c).

19-CA-g.8 to 19-CA-g.10 – File Protests to the Proposed Change

Any interested person may file a protest to the proposed change within the time allowed by the notice of petition. The protest must:

  • State the name and address of the protestant;
  • Be signed by the protestant, or the protestant's agent or attorney;
  • Clearly and specifically set forth the protestant's objections to the approval of the petition, and state the bases for these objections; and
  • Contain other appropriate information and be in the form required by applicable regulations;
  • Be served on the petitioner by the protestant by mailing a duplicate copy of the protest to the petitioner or through service undertaken in another manner determined to be adequate by the board.

§1703.1-2 of the California Water Code; Cal. Code R. & Regs. tit. 23 § 745.

The SWRCB will either accept or reject the protest, based on adherence to the requirements in Cal. Code R. & Regs. tit. 23 § 745. See Cal. Code R. & Regs. tit. 23 § 749.

If the protest is accepted by the SWRCB, the SWRCB encourages the developer to file an answer to the protest, which must be filed (if at all) within 15 days of notice by the SWRCB that the protest was accepted. See Cal. Code R. & Regs. tit. 23§ 751.

A copy of the answer must be served on the protestant. See Cal. Code R. & Regs. tit. 23 § 751-752. If no agreement can be reached between the permittee and protestant and the protest remains unresolved, the SWRCB will hold a hearing.

19-CA-g.11 to 19-CA-g.13 – Has the SWRCB Decided to Hold a Hearing?

The SWRCB is required to hold a hearing upon request of a permittee or protestor. See Cal. Code R. & Regs. tit. 23 § 814; Ca. Water Code §1736 of the California Water Code. Otherwise, the SWRCB may hold a hearing at its discretion. Ca. Water Code §1704(c). Notice of the hearing must be mailed to both the permittee and the protestant at least 20 days before the hearing. See §1704(b) of the California Water Code. The hearing must be conducted in accordance with Cal. Code R. & Regs. tit. 23 § 648 et seq. See Cal. Code R. & Regs. tit. 23 § 760.

19-CA-g.14 to 19-CA-g.16 - Does the Evidence Support Approval of the Proposed Change?

The SWRCB must approve or disapprove the proposed transfer in an order. The order must designate the new point of diversion, place of use or purpose of use, and any terms or conditions to be attached to the permit. See Cal. Code R. & Regs. tit. 23 § 792(b).

An order approving a transfer must:

  • Identify existing rights and current uses of water;
  • Designate the amount(s) of water involved in the change;
  • Designate the quantities of current and new or temporary beneficial uses of water;
  • Designate the existing and new or temporary point(s) of diversion places(s) of use, and purpose(s) of use;
  • Include any required statutory findings; and
  • Include any terms and conditions to which approval of the change is subject.

Cal. Code R. & Regs. tit. 23 § 792(c).

The SWRCB cannot approve a long term transfer unless it finds that (1) the proposed temporary change will not injure any legal user of the water and that (2) the proposed temporary change would not unreasonably affect fish, wildlife, or other instream beneficial uses. Ca. Water Code §1736. If the SWRCB determines that the long term water transfer is appropriate and meets the requirements of §1736 of the California Water Code, it issues an order in accordance with Cal. Code R. & Regs. tit. 23 § 792 authorizing the long term transfer. See Cal. Code R. & Regs. tit. 23 § 816. If the long-term water transfer is not appropriate, or if it does not meet the requirements of §1736 of the California Water Code, the SWRCB issues an order denying the long-term transfer.

Hydropower

The Federal Power Act preempts many of California’s water control regulations, as it would affect federally regulated hydropower facilities. However, federal preemption would not affect California’s authority to determine the control, appropriation, use and distribution of water regarding water right applicants. California v. Federal Energy Regulatory Commission 495 U.S. 490 (1990).


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