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California Petition to Change an Existing Water Right (19-CA-e)

Developers who wish to purchase a water right or add hydropower to an existing permit or license must send a notice to the California State Water Resources Control Board (SWRCB). If the point of diversion, place of use, or purpose of use will be changed, the permit holder (permittee) must file a petition for a change of use in accordance with 23 CCR § 791 et seq. and California Water Code §1700 et seq. The permittee may be either the seller, if the petition is filed before the purchase of a water right, or the developer, if the petition is filed after the purchase or the developer seeks to add hydropower as a beneficial use to an existing permit or license. Before the SWRCB can approve a change of use, it must make a finding that the change will not injure any legal user of the water. See §1702 of the California Water Code.


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 to Change an Existing Water Right Process

19-CA-e.1 to 19-CA-e.3 – Petition for Change

The permittee initiates a change of use by filing a Petition for Change. According to 23 CCR § 794, the petition must identify the “amount(s) and holder(s) of the right(s).” 23 CCR § 794 also requires that the following 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 23 CCR §§ 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 23 CCR § 791(f).

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

The SWRCB must conduct a field investigation for all minor protested petitions for change. The SWRCB may conduct the investigation in lieu of a hearing unless the SWRCB determines that additional proceedings are necessary. See California Water Code §1704.1-3 . A minor petition for change means any petition for change which does not involve direct diversions in excess of three cubic feet per second or storage in excess of 200 acre feet per year. See California Water Code §1704.4. Otherwise, the SWRCB may conduct a field investigation at its discretion. See 23 CCR § 755. In addition, any party may request that the SWRCB evaluate the benefits and detriments of the proposed change in accordance with 23 CCR § 756.

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

The SWRCB must comply with the requirements of the California Environmental Quality Act (CEQA) when approving a change in use request. Because CEQA review can be time consuming and expensive, the process should be started as early as possible. For a full description of the CEQA process see

State Environmental Review Process:
9-CA-a

19-CA-e.6 – Issue Notice of Petition

The SWRCB may require the developer to issue and/or publish notice of the change petition. 23 CCR § 795. The scope of the notice is subject to the discretion of the SWRCB, based on the potential effects of the proposed change(s) on legal users of water and on fish, wildlife, and other instream beneficial users of water. 23 CCR § 795. In all cases, the developer must notify the CDFG in writing of the proposed change(s). 23 CCR § 795.

The SWRCB retains responsibility to notify any person that previously filed a written request to receive notice of the filing of change petitions. 23 CCR § 795(b).

19-CA-e.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. See 23 CCR § 794(b) and (c).

19-CA-e.8 to 19-CA-e.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.

See §1703.1-2 of the California Water Code; 23 CCR § 745.

The SWRCB will either accept or reject the protest, based on adherence to the requirements in §745. See 23 CCR § 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 23 CCR § 751.

A copy of the answer must be served on the protestant. See 23 CCR § 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-e.11 to 19-CA-e.13 – Does the SWRCB Decide to Hold a Hearing?; Hold a Hearing Regarding the Proposed Changes

The SWRCB is required to hold a hearing for unresolved protests, unless the change in use is minor (see 19-CA-e.10). See 23 CCR § 765; California Water Code§1704. Otherwise, the SWRCB may hold a hearing at its discretion. See section §1704(c) of the California Water Code. 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 23 CCR § 648 et seq. See 23 CCR § 760.

19-CA-e.14 to 19-CA-e.16 - Does the Evidence Support Approval of the Proposed Change?; Order Denying Change of Use; Order Approving Change of Use

The SWRCB must approve or disapprove the proposed change 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 23 CCR § 792(b).

An order approving a change 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.

See 23 CCR § 792(c).

The SWRCB cannot approve a change in use unless it determines that the proposed change will not injure any legal user of the water. See §1702 of the California Water Code. If the evidence warrants the change in use, the SWRCB may issues an order granting (with conditions, as necessary) the petition to change the point of diversion, place of use, or purpose of use of a water right. Otherwise, the SWRCB must issue an order denying the change in use. See §1705 of the California Water Code.

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 SWRCB’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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