Code Section Group

Water Code - WAT

DIVISION 2. WATER [1000 - 5976]

  ( Division 2 enacted by Stats. 1943, Ch. 368. )

PART 2. APPROPRIATION OF WATER [1200 - 1851]

  ( Part 2 enacted by Stats. 1943, Ch. 368. )

CHAPTER 10. Change of Point of Diversion, Place of Use, or Purpose of Use [1700 - 1707]
  ( Chapter 10 enacted by Stats. 1943, Ch. 368. )

1700.
  

Water appropriated under the Water Commission Act or this code for one specific purpose shall not be deemed to be appropriated for any other or different purpose, but the purpose of the use of such water may be changed as provided in this code.

(Enacted by Stats. 1943, Ch. 368.)

1701.
  

At any time after notice of an application is given, an applicant, permittee, or licensee may change the point of diversion, place of use, or purpose of use from that specified in the application, permit, or license; but such change may be made only upon permission of the board.

(Amended by Stats. 1957, Ch. 1932.)

1701.1.
  

A petition for change filed after notice of an application shall meet all of the following requirements:

(a) State the name and address of the petitioner.

(b) Be signed by the petitioner, or the petitioner’s agent or attorney.

(c) Set forth amendments to the application or an amended application reflecting the proposed change, including any information necessary for the amended application to comply with Section 1260.

(d) Include sufficient information to demonstrate a reasonable likelihood that the proposed change will not injure any other legal user of water.

(e) Contain other appropriate information and be in the form required by applicable regulations.

(Added by Stats. 2001, Ch. 315, Sec. 6. Effective January 1, 2002.)

1701.2.
  

A petition for change in a permit or license shall meet all of the following requirements:

(a) State the name and address of the petitioner.

(b) Be signed by the petitioner, or the petitioner’s agent or attorney.

(c) Include all information reasonably available to the petitioner, or that can be obtained from the Department of Fish and Wildlife, concerning the extent, if any, to which fish and wildlife would be affected by the change, and a statement of any measures proposed to be taken for the protection of fish and wildlife in connection with the change.

(d) Include sufficient information to demonstrate a reasonable likelihood that the proposed change will not injure any other legal user of water.

(e) Contain other appropriate information and be in the form required by applicable regulations.

(Amended by Stats. 2015, Ch. 683, Sec. 57. (SB 798) Effective January 1, 2016.)

1701.3.
  

(a) After a petition is filed, the board may request additional information reasonably necessary to clarify, amplify, correct, or otherwise supplement the information required to be submitted under this chapter. The board shall provide a reasonable period for submitting the information.

(b) The additional information may include, but need not be limited to, any of the following:

(1) Information needed to demonstrate that the change will not injure any other legal user of water.

(2) Information needed to demonstrate that the change will comply with any applicable requirements of the Fish and Game Code or the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.).

(3) Information needed to comply with Division 13 (commencing with Section 21000) of the Public Resources Code.

(Amended by Stats. 2010, Ch. 288, Sec. 15. (SB 1169) Effective January 1, 2011.)

1701.4.
  

If, within the period provided, the petitioner does not provide the information requested pursuant to Section 1701.3, the board shall cancel the petition, unless, for good cause shown, the board allows additional time to submit the requested information.

(Added by Stats. 2001, Ch. 315, Sec. 9. Effective January 1, 2002.)

1702.
  

Before permission to make such a change is granted the petitioner shall establish, to the satisfaction of the board, and it shall find, that the change will not operate to the injury of any legal user of the water involved.

(Amended by Stats. 1957, Ch. 1932.)

1703.
  

After filing a petition for permission to make a change, the petitioner, in case the board so requires, shall cause notice thereof to be given or published in the manner prescribed by the board. In all cases the petitioner shall notify the Department of Fish and Wildlife in writing of the proposed change.

(Amended by Stats. 2015, Ch. 683, Sec. 58. (SB 798) Effective January 1, 2016.)

1703.1.
  

Any interested person, within the time allowed in the notice of petition, or within the time the board may allow for good cause shown, may file with the board a written protest against approval of the petition.

(Added by Stats. 2001, Ch. 315, Sec. 10. Effective January 1, 2002.)

1703.2.
  

The protest shall meet all of the following requirements:

(a) State the name and address of the protestant.

(b) Be signed by the protestant, or the protestant’s agent or attorney.

(c) Clearly and specifically set forth the protestant’s objections to the approval of the petition, and state the bases for these objections.

(d) Contain other appropriate information and be in the form required by applicable regulations.

(e) 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.

(Added by Stats. 2001, Ch. 315, Sec. 11. Effective January 1, 2002.)

1703.3.
  

The board may request from the protestant additional information reasonably necessary to clarify, amplify, correct, or otherwise supplement the information required to be submitted pursuant to Section 1703.2. The board shall provide a reasonable period for submitting the information, and may allow additional time for good cause shown.

(Added by Stats. 2001, Ch. 315, Sec. 12. Effective January 1, 2002.)

1703.4.
  

The protestant and the petitioner shall make a good faith effort to resolve the protest not later than 180 days from the date the period provided pursuant to Section 1703.1 expires. For good cause, the board may allow additional time for the protestant and the petitioner to attempt to resolve the protest.

(Added by Stats. 2001, Ch. 315, Sec. 13. Effective January 1, 2002.)

1703.5.
  

The board may request from the protestant or the petitioner additional information that the board determines is reasonably necessary to attempt to resolve the protest. The board shall provide a reasonable period for submitting the information, and may allow additional time for good cause shown.

(Added by Stats. 2001, Ch. 315, Sec. 14. Effective January 1, 2002.)

1703.6.
  

(a) The board may cancel a protest or petition for failure to provide information requested by the board under this chapter within the period provided.

(b) Except as provided in subdivisions (c) and (d), the board shall not cancel a protest for failure to submit information not in the possession or under the control of the protestant if the protest meets the requirements of Section 1703.2 and the petitioner is or could be required to submit the information under Section 1701.1, 1701.2, or 1701.3.

(c) If a protest is based on injury to a legal user of water, the board may cancel the protest if the protestant fails to submit any of the following information requested by the board:

(1) Information that the protestant is required to submit to the board to comply with Part 5.1 (commencing with Section 5100) during any period after the protest is filed.

(2) Information that is reasonably necessary to determine if the protestant is a legal user of water.

(3) Information concerning the protestant’s historical, current, or proposed future diversion and use of water that is reasonably necessary to determine if the proposed change will result in injury to the protestant’s exercise of its water right or other legal use of water.

(d) If the protest is based on an allegation other than injury to a legal user of water, the board may cancel the protest for failure to submit information requested by the board if the board determines both of the following:

(1) The public review period has expired for any draft environmental document or negative declaration required to be circulated for public review and comment pursuant to Division 13 (commencing with Section 21000) of the Public Resources Code.

(2) In the absence of the requested information, there is no substantial evidence in light of the whole record to support the allegation.

(e) If a protest is subject to both subdivisions (c) and (d), the part of the protest subject to subdivision (c) may be canceled pursuant to subdivision (c) and the part of the protest subject to subdivision (d) may be canceled pursuant to subdivision (d).

(Amended by Stats. 2010, Ch. 288, Sec. 16. (SB 1169) Effective January 1, 2011.)

1704.
  

(a) The board, after a hearing, may approve with conditions, or deny, a petition.

(b) Notice of hearing shall be given by mailing the notice not less than 20 days before the date of hearing to the petitioner and to any protestant by registered mail.

(c) (1) The board may, but is not required to, hold a hearing prior to approving an unprotested petition.

(2) The board may, but is not required to, hold a hearing if the board determines that undisputed facts support the approval of the petition and there is no disputed issue of material fact.

(3) The board may, but is not required to, hold a hearing prior to denying a petition, if, after notice, the board determines that the petition is defective, the petition fails to provide information requested by the board, or undisputed facts support the denial of the petition and there is no disputed issue of material fact.

(Amended by Stats. 2001, Ch. 315, Sec. 16. Effective January 1, 2002.)

1704.1.
  

The Division of Water Rights shall conduct a field investigation of all minor protested petitions for change. The board shall notify the parties of the field investigation not less than 20 days prior to conducting the field investigation, to enable the parties to attend and present information to the board.

(Amended by Stats. 1997, Ch. 323, Sec. 17. Effective January 1, 1998.)

1704.2.
  

The Division of Water Rights may request the parties to submit information in support of their positions. The Division of Water Rights may request information before, during, or after the field investigation. After the field investigation, the Division of Water Rights may conduct additional proceedings in accordance with Article 10 (commencing with Section 11445.10) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of the Government Code.

(Repealed and added by Stats. 1997, Ch. 323, Sec. 19. Effective January 1, 1998.)

1704.3.
  

Based upon the field investigation and any other information obtained under this chapter, the Division of Water Rights shall issue an order acting on the minor petition for change unless the board in its discretion determines that additional proceedings should be conducted under Section 183. An order of the Division of Water Rights is subject to review as provided in Chapter 4 (commencing with Section 1120) of Part 1.

(Repealed and added by Stats. 1997, Ch. 323, Sec. 21. Effective January 1, 1998.)

1704.4.
  

For purposes of this chapter, a minor petition for change shall mean any petition which does not involve direct diversions in excess of three cubic-feet per second or storage in excess of 200 acre-feet per year.

(Added by Stats. 1980, Ch. 933, Sec. 11.)

1705.
  

After the hearing the board shall grant or refuse, as the facts warrant, permission to change the point of diversion, place of use, or purpose of use.

(Amended by Stats. 1957, Ch. 1932.)

1706.
  

The person entitled to the use of water by virtue of an appropriation other than under the Water Commission Act or this code may change the point of diversion, place of use, or purpose of use if others are not injured by such change, and may extend the ditch, flume, pipe, or aqueduct by which the diversion is made to places beyond that where the first use was made.

(Enacted by Stats. 1943, Ch. 368.)

1707.
  

(a) (1) Any person entitled to the use of water, whether based upon an appropriative, riparian, or other right, may petition the board pursuant to this chapter, Chapter 6.6 (commencing with Section 1435) or Chapter 10.5 (commencing with Section 1725) for a change for purposes of preserving or enhancing wetlands habitat, fish and wildlife resources, or recreation in, or on, the water.

(2) The petition may be submitted for any of the purposes described in paragraph (1) and may, but is not required to, be submitted in combination with a petition to make any other change authorized pursuant to this part. The petition shall specify the time, location, and scope of the requested change, and other relevant information relating thereto.

(b) The board may approve the petition filed pursuant to subdivision (a), subject to any terms and conditions which, in the board’s judgment, will best develop, conserve, and utilize, in the public interest, the water proposed to be used as part of the change, whether or not the proposed use involves a diversion of water, if the board determines that the proposed change meets all of the following requirements:

(1) Will not increase the amount of water the person is entitled to use.

(2) Will not unreasonably affect any legal user of water.

(3) Otherwise meets the requirements of this division.

(c) (1) Upon the request of the petitioner, the board may specify, as part of its approval of the petition, that the water that is subject to the approval pursuant to this section shall be in addition to water that is required, if any, to be used for instream purposes to satisfy any applicable federal, state, or local regulatory requirements governing water quantity, water quality, instream flows, fish and wildlife, wetlands, recreation, and other instream beneficial uses. If the request is approved by the board, state and local agencies, as well as the courts, shall not credit the water subject to that petition towards compliance with any of the regulatory requirements described in this subdivision. A federal agency shall comply with the requirement imposed by this paragraph to the extent required by federal law, or to the extent that it chooses to comply.

(2) For the purposes of this subdivision, “requirements” includes requirements or obligations that have not been formally established or allocated at the time of the petition, and obligations under any agreement entered into to meet those requirements. Neither any petition filed pursuant to this section nor any documents or statements made in connection therewith shall be construed or used as an admission, evidence, or indication of any obligation to meet any of the requirements described in this subdivision.

(d) Except as provided in subdivision (c), water that is subject to a petition granted pursuant to this section shall be used to meet, in whole or in part, any requirement described in subdivision (c) if any of these requirements exist. The water shall be credited to the petitioner, or to any other person or entity designated by the petitioner, whenever that person or entity has, or may have, obligations to meet one or more of the requirements described in subdivision (c). The water shall be credited towards compliance with any requirements described in subdivision (c), by state and local agencies, as well as the courts. A federal agency shall comply with the requirement imposed by this subdivision to the extent required by federal law, or to the extent that it chooses to comply.

(Amended by Stats. 1999, Ch. 938, Sec. 7. Effective January 1, 2000.)

WATWater Code - WAT