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California Instream Transfers

California Instream Transfers. Allan Lilly Rob Donlan Bill Hutton Andy Sawyer Nicolas Jacobs. photos: San Joaquin River Restoration Program. Basic Nature Water Rights. No private ownership of water flowing in a natural stream. (See Wat. Code, § 102.)

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California Instream Transfers

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  1. California Instream Transfers Allan Lilly Rob Donlan Bill Hutton Andy Sawyer Nicolas Jacobs photos: San Joaquin River Restoration Program

  2. Basic Nature Water Rights • No private ownership of water flowing in a natural stream. (See Wat. Code, § 102.) • But rights may be obtained to the use of water. (Id.) • A water right is a right to divert water for beneficial use. • Water rights are property rights • Water rights are subject to pervasive regulation, including protections for instream beneficial use.

  3. Lux v. HagginNo Water Right Protection for Instream Uses “[T]he words ‘material injury’ implies that every diminution is not any injury, and it excludes, where water is reasonably used above for irrigation, mere sentiment, or the consideration of a diminution from the natural flow so far merely as such flow pleases the eye or gratifies a taste for the beautiful.” (Lux v. Haggin (1886) 69 Cal. 255, 396.) Henry Lux

  4. Lux Rationale Undermined “The appropriation [of water] must be for some useful or beneficial purposes . . . . (Wat. Code, § 1240.) “The use of water for recreation and preservation and enhancement of fish and wildlife is a beneficial use of water.” (Wat. Code, § 1243 [added in 1959].)

  5. Appropriations for Instream UseInvolving Use of Stored Water New Melones – photo USBR

  6. Appropriations for Instream UseInvolving Interbasin Transfers Salton Sea – photo K. Kashmi

  7. Lux Redux: No Diversion – No Appropriation California Trout v. State Water Resources Control Board (1979) 90 Cal.App.3d 816; Fullerton v. State Water Resources Control Board (1979) 90 Cal.App.3d 590.) Redwood Creek -- photo Parks Conservancy Mattole River -- photo Mattole River Council

  8. Water Code section 1707 1707. (a) (1) Any person entitled to the use of water, whether based upon an appropriative, riparian, or other right, may petition the board . . . for a change for purposes of preserving or enhancing wetlands habitat, fish and wildlife resources, or recreation in, or on, the water. . . . . (b) The board may approve the petition . . . . whether or not the proposed use involves a diversion of water . . . .

  9. Approval Procedures 1707. (a) (1) Any person . . . may petition the board pursuant to [the provisions of the Water Code for changes in point of diversion, place of use or purpose of use] . . . . . . . . (b) The board may approve the petition . . . 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 . . . 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.

  10. Approval Procedures • Ordinary Changes (Wat. Code, § 1701 et seq.) • Temporary Urgency Changes (Wat. Code, § 1435 et seq.) Expedited procedures, which may include interim approval before public notice, but not statutorily exempt from CEQA. Limited to 180 days, but may be renewed. • Short-Term Transfers (Wat. Code, § 1725 et seq.) Expedited procedures, with exemption from CEQA. Limited to one year, but may be repeated. • Long-Term Transfers (Wat. Code, § 1735 et seq.) • Changes in Adjudicated Rights. May use any of the above procedures, or procedures authorized in adjudication decree.

  11. The No Injury Rule

  12. POD 1950 Priority return flow POD 1920 Priority return flow POD 1960 Priority return flow

  13. POD 5cfs 1920 watershed boundary 50% return flow POD 1960 return flow

  14. Who Can Hold a Right Changed to Instream Uses? Any person or entity capable of owning real property. (See Wat. Code, § 1252.5 [All rights and privileges conferred by this part upon any person in relation to the appropriation of water are likewise conferred upon the United States, the State, and any entity or organization capable of holding an interest in realproperty in this State.”])

  15. Experience with 1707 Changes

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