SECTIONS 1725-1732 - California Statutes

WATER CODE

SECTION 1725-1732

1725. A permittee or licensee may temporarily change the point of
diversion, place of use, or purpose of use due to a transfer or
exchange of water or water rights if the transfer would only involve
the amount of water that would have been consumptively used or stored
by the permittee or licensee in the absence of the proposed
temporary change, would not injure any legal user of the water, and
would not unreasonably affect fish, wildlife, or other instream
beneficial uses. For purposes of this article, "consumptively used"
means the amount of water which has been consumed through use by
evapotranspiration, has percolated underground, or has been otherwise
removed from use in the downstream water supply as a result of
direct diversion.

1726. (a) (1) A permittee or licensee who proposes a temporary
change shall submit to the board a petition to change the terms of
the permit or license as required to accomplish the proposed
temporary change. Any petition for a temporary change shall be filed
by the permittee or licensee. If the proposed temporary change is for
the benefit of a contractor or user supplied directly or indirectly
by the permittee or licensee, the permittee or licensee may authorize
the contractor or user to participate as a copetitioner. The
permittee or licensee shall identify any copetitioner in the
petition.
(2) A contractor or user described in paragraph (1), whether or
not designated as a copetitioner, and the person to whom the water is
proposed to be transferred, shall be named as parties to the
proceeding, with the same rights to receive notices, respond to board
determinations, and petition for writ of mandate as the petitioner.
(b) A petition shall include both of the following:
(1) Reference to the permit or license that serves as the basis
for the water transfer.
(2) A written description of the changes in water storage, timing,
and point of diversion, place and purpose of use, timing and point
of return flow, and water quality of instream flows that are likely
to occur as a result of the proposed temporary change.
(c) A petitioner shall provide a copy of the petition to the
Department of Fish and Game, the board of supervisors of the county
or counties in which the petitioner currently stores or uses the
water subject to the petition, and the board of supervisors of the
county or counties to which the water is proposed to be transferred.
(d) Within 10 days of the date of submission of a petition to the
board, the petitioner shall publish in not less than one newspaper of
general circulation, in the county or counties in which the
petitioner currently stores or uses the water subject to the
petition, a notice of the petition and a brief description of the
terms of the proposed temporary change. The board shall, in a timely
manner, provide to the petitioner a list of water right holders of
record on file with the board who may be affected by the transfer,
and the petitioner shall provide written notice to those water right
holders not later than 10 days after the date on which the petition
is submitted. The board shall post the notice of petition on its
Internet web site not later than 10 days after the date on which the
petition is submitted. The notice of the petition shall specify the
date on which comments are due. The board may impose on the
petitioner any other notice requirement it determines to be
necessary.
(e) Within 10 days of the date of receipt of a petition, the board
shall commence an investigation of the proposed temporary change.
Pursuant to that investigation, the board shall determine if the
water proposed to be transferred would have been consumptively used
or stored pursuant to the petitioner's permit or license in the
absence of the proposed transfer or conserved pursuant to Section
1011. The board also shall evaluate 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.
(f) Water users that may be affected by a proposed temporary
change and any other interested party may file a written comment
regarding a petition with the board. Comments shall be filed not
later than 30 days after the date that the notice was published
pursuant to subdivision (d). The board shall evaluate and take into
consideration all comments that are filed in a timely manner.
(g) (1) Except as specified in paragraphs (2) and (3), the board
shall render a decision on the petition not later than 35 days after
the date that investigation commenced or the date that the notice was
published, whichever is later. The board's decision shall be in
accordance with the substantive standards set forth in Section 1727.
The board shall explain its decision in writing and shall send copies
of the decision to the petitioner, the Department of Fish and Game,
the board of supervisors of the county or counties described in
subdivision (c), the proposed transferee, and any party who has filed
a written comment in accordance with subdivision (f).
(2) If comments are filed in accordance with subdivision (f), or
for any other good cause, the board may extend the date of its
decision for up to 20 days.
(3) If the board or the petitioner determines that an additional
extension of time for a decision is necessary for the board to make
the findings required by Section 1727, or that a hearing is necessary
for the board to make those findings, the board may extend the time
for a decision with the consent of the petitioner. If the petitioner
agrees to a hearing, the board shall identify the issues for which
additional evidence is required and shall fix a time and place for
the hearing. The board shall provide notice of the time, place, and
subject matter of the hearing to the petitioner, the Department of
Fish and Game, the board of supervisors of the county or counties
described in subdivision (c), the water right holders of record
identified pursuant to subdivision (d), the proposed transferee, and
any party who has filed a written comment in accordance with
subdivision (f).

1727. (a) The board shall review a petition for a temporary change
of water rights in accordance with this section.
(b) The board shall approve a temporary change if it determines
that a preponderance of the evidence shows both of the following:
(1) The proposed temporary change would not injure any legal user
of the water, during any potential hydrologic condition that the
board determines is likely to occur during the proposed change,
through significant changes in water quantity, water quality, timing
of diversion or use, consumptive use of the water, or reduction in
return flows.
(2) The proposed temporary change would not unreasonably affect
fish, wildlife, or other instream beneficial uses.
(c) The petitioner shall have the burden of establishing that a
proposed temporary change would comply with paragraphs (1) and (2) of
subdivision (b). If the board determines that that petitioner has
established a prima facie case, the burden of proof shall shift to
any party that has filed a comment pursuant to subdivision (f) of
Section 1726 to prove that the proposed temporary change would not
comply with paragraphs (1) and (2) of subdivision (b). The board may
make a determination required by this subdivision without a hearing.
(d) In reviewing a petition for a temporary change, the board
shall not modify any term or condition of the petitioner's permit or
license, including those terms that protect other legal users of
water, fish, wildlife, and other instream beneficial uses, except as
necessary to carry out the temporary change in accordance with this
article.
(e) In applying the standards set forth in paragraphs (1) and (2)
of subdivision (b), the board shall not deny, or place conditions on,
a temporary change to avoid or mitigate impacts that are not caused
by the temporary change. Neither the Department of Fish and Game, nor
any other state agency that comments on the proposed temporary
change, shall propose conditions to mitigate effects on fish,
wildlife, or other instream beneficial uses caused by factors other
than the proposed temporary change. This subdivision does not limit
the board, the Department of Fish and Game, or any other state
agency, in proceedings pursuant to any provision of law other than
this article.

1728. For the purposes of this article, a temporary change means
any change of point of diversion, place of use, or purpose of use
involving a transfer or exchange of water or water rights for a
period of one year or less. The one-year period does not include any
time required for monitoring, reporting, or mitigation before or
after the temporary change is carried out. If, within a period of one
year or less, the water involved in the temporary change is moved to
off-stream storage outside of the watershed where the water
originated, the change shall be considered a temporary change, and
the water moved to off-stream storage outside the watershed where the
water originated may be put to beneficial use in the place of use
and for the purposes of use specified in the board's order approving
the temporary change either during or after that period.

1729. A proposed temporary change under this article shall be
exempt from the requirements of Division 13 (commencing with Section
21000) of the Public Resources Code.

1731. Following the expiration of the temporary change period, all
rights shall automatically revert to the original holder of the right
without any action by the board.

1732. The petitioner shall not initiate or increase the use of
groundwater to replace surface water transferred pursuant to this
article, except in compliance with Sections 1745.10 and 1745.11.