California Short Term Water Transfer (19-CA-f)
Section 1725 et seq. provides for an expedited approval process for short term transfers. Short term transfer petitions are given the highest priority by the SWRCB and are not subject to the California Environmental Quality Act (CEQA). However, short term transfers expire after one year, at which time use of the transferred waters reverts back to the permittee. 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.Section 1725 et seq. governs short term transfers of post-1914 waters rights. Implementing regulations governing short term transfers can be found at 23 CCR 801 et seq.
Short Term Water Transfer Process
19-CA-f.1 – Petition for Change Involving Transfer of Water
In order to initiate a water transfer, the premittee must file a Petition for Change Involving Transfer of Water (petition) with the SWRCB. The petition must be filed by the permittee, although the permittee may authorize the developer to participate in the petition process as a co-petitioner. See section 1726 of the California Water Code. 23 CCR 801 requires petitions for temporary transfers to comply with 23 CCR 794, which states that 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 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-f.2 to 19-CA-f.3 – Is the Petition Complete?
The SWRCB conducts an initial acceptance review after receiving the petition. See 23 CCR 791(f); 23 CCR 801, 804. If the petition does not contain all of the information or maps listed in 23 CCR 794, the SWRCB will return the petition to the permittee or request additional information.
19-CA-f.4 – Begin Investigation of Transfer
The SWRCB must commence an investigation of the proposed temporary change within 10 days of the date of submission. The investigation centers on whether the water to be transferred would have been consumptively used or stored in accordance with the permit or license absent the transfer or conserved in accordance with section 1011 of the California Water Code. The board also evaluates “the changes in water storage, timing and point of diversion, place and purpose of use, timing and point of return flow, water quality, and instream flows, and other changes that are likely to occur as a result of the proposed temporary change.” See section 1726(e) of the California Water Code.
19-CA-f.5 to 19-CA-f.6 – Issue Public Notice; Send Notice of the Petition to All Known Legal Users of the Water
According to section 1726(d) of the California Water Code, the permittee must publish a notice in a newspaper of general circulation is the county or counties in which the permittee stores or uses water subject to the petition. The notice must include a brief description of the terms of the proposed temporary change. The notice must be published within 10 days of the date of the petition’s submission.
In addition to the notice outlined above, The SWRCB must send notice of the petition or contact all legal users of the water who may be affected by the proposed change within 10 days. See 23 CCR 804(a).
19-CA-f.7- Consult with the California Department of Fish and Game (CDFG) and the Regional Water Quality Control Board (RWQCB)
Permittees must request a consultation with both the California Department of Fish and Game (CDFG) 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-f.8 to 19-CA-f.10 – File Objection to the Petition
Interested persons may file an objection to the proposed change within 15 days after the issuance of the notice required by 23 CCR 804(a). See 23 CCR 804(b). The SWRCB must promptly consider any objection. See 23 CCR 804(c). If no objections are filed, the SWRCB may complete its investigation and issue an order denying or approving the proposed change.
19-CA-f.11 to 19-CA-f.13 – Does the SWRCB Decide to Hold a Hearing?; Issue Notice Regarding Hearing; Hold a Hearing Regarding the Objections to the Petition
The SWRCB may hold a hearing to address objections at its discretion. According to 23 CCR 804(d), “[n]otice of hearing on proposed temporary change may be given by mailing notice to the water right holder, the Department of Fish and Game and persons known to the [SWRCB] who might be affected by the proposed change, not less than 20 days before the date of the hearing by certified mail or personal delivery.” 20 days after the notice is published, the SWRCB may hold the hearing.
19-CA-f.14 to 19-CA-f.16 – Does the Evidence Support Approval of the Proposed Change?; Order Denying Temporary Transfer; Order Approving Temporary Transfer
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. For temporary changes, “the terms and conditions shall be those necessary to avoid or mitigate adverse impacts that would result from the transfer or to ensure reasonable and beneficial use by the transferee during the period of transfer.” 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).
As mentioned above, the SWRCB cannot approve the temporary 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. See section 1727(b) of the California Water Code. The burden is initially on the permittee to establish that the proposed temporary change would comply with the statutory requirements listed above, although the burden is shifted to any objectors if the SWRCB determines that the permittee has established a prima facie case. See section 1727(c) of the California Water Code. In addition, the SWRCB must determine whether the water to be transferred would have otherwise been consumptively used or stored before the order can be approved. See section 1727(e) of the California Water Code.
The SWRCB issues an order either approving or denying the temporary transfer after the investigation is complete, all objections have been considered, a hearing has been conducted (if necessary), and all statutorily required findings have been made. See 23 CCR 804(e).
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