Water Recycling Funding Program (WRFP)

WATER RIGHTS REQUIREMENTS FOR PROJECTS RECEIVING STATE WATER BOARD GRANTS AND LOANS

November 2007

Applicants seeking funds for water pollution control and water recycling projects are required to consult with the State Water Resources Control Board, Division of Water Rights and comply with pertinent Water Code Section 1210. The information in this document provides information to applicants regarding water rights requirements for water pollution control and water recycling projects receiving State Water Board grants and loans.

Background

Treated wastewater is reused in many areas of the state even when no projects have been constructed with this intent. Thus, existing water users downstream from a wastewater discharge may hold rights to the use of the discharged effluent. Also, because of the ephemeral nature of many streams in California, many instream flows and the associated habitat are dependent on wastewater discharge during portions or all of the year. Due to dependency of endangered species on wastewater flows, the Department of Fish and Game has placed increased restrictions on discharges. To illustrate the competition for water, the Department of Water Resources estimated that between 86 and 100 percent of wastewater in different regions of the Central Valley was reused, most of which was in the form of unplanned indirect reuse downstream of the discharge (Ref 1). With climate change and increased stresses on watercourses, planned water reuse in one community may take away water already allocated to someone else or serving environmental uses.

Notification of and Review by Division of Water Rights

Section 1211 of the Water Code requires that before making a change in the point of discharge, place of use, or purpose of use of treated wastewater, the owner of the treatment plant must seek approval from the Division of Water Rights, which is accomplished by filing a Petition for Change for Owners of Waste Water Treatment Plants (Petition for Change). This requirement does not apply to changes in the discharge or use of treated wastewater that do not result in decreasing the flow in any portion of a watercourse. For the purposes of compliance with this requirement, a watercourse may be considered to be surface water or subterranean streams flowing in known and definite channels, and examples of receiving waters where this requirement does not apply include the ocean or a bay. For this reason direct discharges to the ocean or a bay are automatically excluded, but discharges to a watercourse even a short distance upstream from the ocean or a bay may be subject to this requirement. In addition, discharges to percolation ponds that contribute to flow in a watercourse are subject to this requirement.

To determine whether it is necessary to file a petition with the Division of Water Rights, an agency may discuss a proposed water pollution control or water recycling project with staff in the Division of Water Rights (see contact information below). Based on this discussion, the Water Rights will issue a letter of determination whether no further action is required or a petition must be filed.

If an agency knows that a proposed project will result in decreasing the flow in a watercourse or if the Division of Water Rights has determined that a petition is necessary, the agency must file a Petition for Change. There is a $1000 filing fee and a California Department of Fish and Game $850 review fee for the petition. The typical review time for the petition is 8 to 12 months, but review can take as long as three years in complex situations.

Funding Application

All applicants must consult with the Division of Water Rights for a determination of whether a petition must be filed. A copy of this written determination must be submitted with the funding application to the Division of Financial Assistance. If an applicant must file a Petition for Change, the applicant should indicate the date of submittal to the Division of Water Rights on the application form or provide a schedule of when a petition will be filed.

If a Petition for Change is filed, the Division of Water Rights may have to make an environmental determination as a Responsible Agency under guidelines of the California Environmental Quality Act. For this reason, the environmental review of the funding application by the Division of Financial Assistance must be coordinated with the Division of Water Rights.

Water Code Provisions Background

Three sections of the Water Code explicitly address ownership and water rights with respect to treated wastewater. Section 1211 has been discussed above.

Ownership of treated wastewater. Section 1210 of the Water Code states that, between the owner of the wastewater treatment plant and the entities contributing the wastewater into the collection system, the owner of the treatment plant has exclusive rights to the treated wastewater. This does not mean that the treatment plant owner has exclusive rights to effluent. Water rights may accrue after discharge. The discharged water may also support instream or riparian habitat. Therefore, downstream water rights or environmental conditions may supersede the rights of the owner of the treatment plant to the use of the treated effluent.

Protection of instream beneficial uses. Section 1212 provides that a wastewater discharger (“waste water producer”) can introduce wastewater into a watercourse with the stated intention of maintaining or enhancing instream beneficial uses, such as fishery, wildlife, or recreation. The discharger must state explicitly the reach of stream intended to be benefited and the discharged flows that will be maintained. In such a case, the Division of Water Rights will not grant an appropriation to another party for the discharged water. The discharger can revoke this intent later, such as if it plans to replace discharge for direct delivery of recycled water to users.

Water Code Sections

The following is the language in the Water Code for sections 1210, 1211 and 1212.

1210. The owner of a waste water treatment plant operated for the purpose of treating wastes from a sanitary sewer system shall hold the exclusive right to the treated waste water as against anyone who has supplied the water discharged into the waste water collection and treatment system, including a person using water under a water service contract, unless otherwise provided by agreement. Nothing in this article shall affect the treatment plant owner's obligations to any legal user of the discharged treated waste water.

1211. (a) Prior to making any change in the point of discharge, place of use, or purpose of use of treated wastewater, the owner of any wastewater treatment plant shall obtain approval of the board for that change. The board shall review the changes pursuant to the provisions of Chapter 10 (commencing with Section 1700) of Part 2 of Division 2.
(b) Subdivision (a) does not apply to changes in the discharge or use of treated wastewater that do not result in decreasing the flow in any portion of a watercourse.

1212. The board shall not grant any permit or license to any person other than the treated waste water producer for the appropriation of treated waste water where the producer has introduced such water into the watercourse with the prior stated intention of maintaining or enhancing fishery, wildlife, recreational, or other instream beneficial uses. Holders of existing water rights may not use or claim such water.

Water Rights Contact

Questions regarding Petition for Change for Owners of Waste Water Treatment Plants:

Patricia Fernandez
Senior Water Resource Control Engineer
(916) 319-9141
Patricia.Fernandez@waterboards.ca.gov

References

The California Water Plan: Projected Use and Available Water Supplies to 2010, Bulletin No. 160-83, California Department of Water Resources, Sacramento, California, December 1983.