Overview: Environmental Water Acquisitions. Related Programs.Legal and Process Issues

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Overview Environmental Water
Acquisitions. Related Programs.Legal and Process
Issues

• Jerry Johns
• Water Transfers Office
• Department of Water Resources

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Overview

• Summary of Water Transfer Law
• Water Transfer Issues
• CALFED agencies and Water Transfers
• Challenges for instream flow water transfers

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What is a Water Transfer

• A change is the way water is allocated
• Expand use to new areas
• Allows alternative use without extensive
  additional facilities
• Instream Flow (1707)
• From a water right perspective
• Change in POU, POD, Purpose
• Cannot increase the amount or season
• Follow the water not the trades

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Some General Policies on Water

• Water belongs to the people of the State
• A water right is a usufruct right
• Prohibition against waste or unreasonable use
• Water rights can be lost through non-use
• To transfer water the transferor must have
  underlining rights to the water (water right or
  contract right)

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Surface Water vs. Ground water

• Surface Water
• Water flowing in a channel is subject to
  appropriation under the Water Code (1201)
• Diversions of percolating groundwater are not
  subject to State regulation
• Well driller regulations
• Local groundwater management plans (WC 10750) and
  County ordinances
• Adjudications

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Legal Types of Water Under the Ground

• Percolating Groundwater - Ground Water
• Subterranean Stream - Surface Water Rules Apply

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Types of Surface Water Rights

• Pueblo
• Riparian
• Federal Reserved
• Appropriative
• Pre-1914
• Section 12
• Post-1914
• Prescriptive
• Adjudicated

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Types of Transfers

• Surface Water
• Contract Supplies
• Base Water Rights
• Pre 1914
• Post 1914
• Short Term (1725) - lt Year Stored Water or
  Consumptive Use
• Long Term (1735) - gt1 Year

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Types of Transfers Cont..

• Groundwater
• Direct Use Transfer of Groundwater
• Banked Groundwater
• Use of Groundwater in lieu of Surface Water
  (actually a surface water transfer)

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Three Rules Related to Water Transfers

• No injury to any legal user of water (Water
  Code 1702, 1706, 1727, 1736, 1810)
• No unreasonable effects to fish or wildlife
  (Water Code 1727, 1736, 1810)
• No unreasonable economic impacts to overall
  economy of the county in from which the water is
  transferred. (Use of SWP - Water Code 1810)

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Water Rights are Protected if They are Transferred

• The Water Rights of the transferor are protected
  if the water is transferred under the water code.
  (Water Code 1010, 1011, 1244,1440, 1731,
  1737,1745.07)
• A water transfer allows alternative water use
  under the original water right
• New water user only get is the water if the water
  right holder allows it.

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Protection of Water Rights Cont..

• If water is made available for transfer through
  water conservation activities the water rights
  can also be protected under the water code (Water
  Code 1011)
• If surface water supplies are made available for
  transfer through the in lieu pumping of
  groundwater, the surface rights can be protected
  (Water Code 1011.5)

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No Injury Rule

• No injury to other legal users of water
• Not just prior users - any other user
• Protects juniors from seniors
• Based in old court cases, now in statute
• Applies to both pre and post 1914 rights (1706,
  1702, 1727, 1736)
• Whats legal injury vs. impact- Imported water/
  watershed protection

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WPA Affects on No Injury - Refill and Return
Flows

• WPA affects the definition of Injury related to
  the CVP and SWP
• Transfers out of watershed of origin - injury
  occurs when Delta is in Balanced Conditions
• Transfer within the watershed of origin -
  Injury occurs when stored water of CVP and SWP is
  augmenting natural flows to meet Delta Standards

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No Injury Issues

• Stored Water
• Conditions absent the water transfer
• Refill impacts (Watershed Protection Act)
• Water Diverted Direct to Use
• Crop shifting, Crop idling
• Water Conservation Efforts
• Use of Groundwater in lieu of Surface Water
• Direct use of Groundwater (not out of basin - WC
  1220)

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Direct Water Use No Injury Issues

• Crop shifting, idling, water conservation
• Consumptive use conditions absent the transfer
• Return flows used by others difficult to transfer
  
• Water made available on pattern of use
• Groundwater in lieu of surface water
• Effects on surface flows (direct and indirect)
• Effects on local groundwater users
• Measures are needed to prevent injury

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DWR Principles Related to Water Transfers

• Local Leadership
• Assuring Adequate Local Water Supplies.
• Locally Developed Programs
• Protection of Fish and Wildlife
• Economic Effects
• Water management strategies will be designed to
  avoid third party, economic impacts.
  Administration of these mechanisms will be at the
  local level under local control

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Local Economic Effects

• Focuses mostly on crop idling or shifting
• Some positive aspects in todays crop market
• Focus on dry years (about 1/3 of years)
• If fallowing greater than 20 - hearing
• Effects on local economy related to farming
• Reinvestment in local economy
• Farm jobs and services related to lost jobs

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Importance of EWA to the Env. and Water
Contractors

• EWA - negotiated Deal to allow additional ESA
  related actions at no uncompensated costs to the
  CVP and SWP
• Provides ESA Assurances - No Additional Water
  Supply costs due to ESA
• Stabilizes Water allocations related to ESA
• Coordination of B2 and EWA last year -
  CVP/B2 - SWP/ESA

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Changes in how CALFED Agencies view Transfers

• Historically CALFED agencies tolerated water
  transfers
• Now many CALFED agency programs rely on water
  transfers

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CALFED Agency Water Transfers in Water Year
2000-01

• PROGRAM TAF UOD/SOD
• EWA 264 105/159
• DWR Dry Yr. 138 138/0
• CVP Dry Yr. 160 160/0
• CVPIA 65 0/65
• EWP 0
  0/0
• Others 10
  10/0
• Total 637
  413/224

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Challenges Of Instream Flow Transfers

• A water purchase is not a possessory right
• not like land purchase
• rights based on past use to prevent injury
• priority of right may limit usefulness
• type of right may limit usefulness
• Tracking the water in a small stream
• monitoring / protection
• Changes in downstream water use over time

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Additional Reading Guide to Water
Transfers

• SWRCB staff publication
• Draft - July 1999
• Available in hard copy [phone]
• On the internet
• www.waterrights.ca.gov/watertransfer.htm

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